State v. Goff

• Decision Date: 14 July 1969
• Docket Number: No. 53989,No. 1,53989,1
• Citation: 449 S.W.2d 591
• Parties: STATE of Missouri, Respondent, v. Jesse Ray GOFF, Appellant
• Court: Missouri Supreme Court

Page 591

449 S.W.2d 591

STATE of Missouri, Respondent, v. Jesse Ray GOFF, Appellant.

No. 53989.

Supreme Court of Missouri, Division No. 1.

July 14, 1969, En Banc.

Feb. 9, 1970.

John C. Danforth, Atty. Gen., Jefferson City, Adrian DeYong, Jr., Sp. Asst. Atty. Gen., St. Louis, for respondent.

J. Arnot Hill, The Legal Aid & Defender Society of Greater Kansas City, Kansas City, for appellant.

STORCKMAN, Judge.

The defendant Jesse Ray Goff, charged with the offense of first-degree robbery, was found guilty by a jury. Section 560.120 and § 560.135, RSMo 1959, V.A.M.S. The court found the defendant to be a second offender and sentenced him to fifteen years in the custody of the Department of Corrections. Section 556.280, RSMo 1959, V.A.M.S. As an indigent the defendant was represented in the trial court by counsel from the Legal Aid and Defender Society of Kansas City and is so represented on his appeal to this court.

On May 23, 1967, about 11:30 p.m., Harry R. Flanary and a woman companion were in the front seat of the Flanary automobile parked on Cliff Drive in Kansas City when a white Ford automobile with three men in it pulled alongside. One of the men identified at the trial as the defendant got out of the car, pointed a revolver at Flanary and commanded him to open the car door. When Flanary refused to do so, the defendant fired a shot through the left rear window of the automobile. The door was then opened and Flanary was required at gunpoint to hand over his money, about $60.00, and his automobile keys. Flanary was then told to walk down the road and not to look back. The defendant and his companions took Flanary's companion with them to a lonely road where the defendant raped her while one of his companions threatened her with the gun. When she was released, she went to her rooming house where she was met and interviewed by police officers who had been notified by Flanary. There were street lights near the place where the couple was parked on Cliff Drive and the woman had a further opportunity to observe the defendant while she was riding with him in the back seat of the white Ford as well as at the scene of the rape. When he committed the robbery, the defendant had on his head a paper bag in which large eye holes had been cut, but he removed the bag after he got back into the Ford car. The defendant and his two companions were identified from police photographs and arrested. The defendant was tried separately. He offered no testimony on the merits and does not challenge the sufficiency of the evidence to support the conviction.

The defendant's contention on appeal is that he should not have been sentenced as a second offender because he was a juvenile and was not represented by counsel when he pleaded guilty to the offense of escape while under guard. Near the conclusion of the state's case, at a hearing out of the presence of the jury, the state introduced in evidence over the defendant's objection state's exhibit 1, which was a certified copy of a judgment showing that on December 4, 1959, Jesse Ray Goff pleaded guilty in the Circuit Court of Cole County to the charge of escape under guard and he was sentenced to a term of four years in the custody of the Department of Corrections. State's exhibit 2 was a certified transcript of the defendant's serial record in the Missouri Department of Corrections showing that Goff was received on December 8, 1959, and was released December 7, 1962. The defendant's objection to exhibit 2 was solely on the ground of an immaterial discrepancy in dates based on his recollection and was overruled.

At this hearing the defendant testified that he was fifteen years of age at the time he pleaded guilty to the charge of escape under guard in the Circuit Court of Cole County, that he did not have a lawyer to represent him at the time, and that he did did not appear and have a hearing in juvenile court before pleading guilty in circuit court to the charge of escape. The court found that the defendant was convicted of an offense punishable by imprisonment in the penitentiary, the offense of escape under guard, and therefore the court had jurisdiction to proceed with the trial of the instant case under the provisions of § 556.280, the Second Offender Act.

The defendant's first contention is that the trial court erred in considering his prior conviction in assessing his punishment because he was fifteen years old at the time of the conviction and the state's evidence fails to show a judicial finding as required by § 211.071, RSMo 1959. Section 211.071 insofar as pertinent provides that in 'the discretion of the judge of the juvenile court, when any petition under sections 211.011 to 211.431 alleges that a child of the age of fourteen years or older has committed an offense which would be a felony if committed by an adult, * * *, the petition may be dismissed and such child * * * may be prosecuted under the general law, whenever the judge after receiving the report of the investigation required by sections 211.011 to 211.431 and hearing evidence finds that such child * * * is not a proper subject to be dealt with under the provisions of sections 211.011 to 211.431.'

Although the defendant testified at the hearing on the issue of the prior conviction, his testimony did not tend to contradict the entries shown by the exhibits in any material respect. The state's exhibits showed that the defendant was fifteen at the time of the former conviction and that he did not have a lawyer because he expressly waived one at the hearing of his plea of guilty. The majority rule followed in this state is that a defendant being prosecuted as a second offender is not entitled to raise questions of mere error in the former conviction to prevent the operation of the Second Offender Act. State v. Brinkley, 354 Mo. 337, 189 S.W.2d 314, 331(35); State v. Tyler, 349 Mo. 167, 159 S.W.2d 777, 780(8); 24B. C.J.S. Criminal Law § 1961.

If certified copies of the prior judgment and sentence and the prison records are regular on their face and proper in form and substance, they are admissible in evidence and sufficient to support the trial court's finding that the Second Offender Act is applicable to the prosecution. State v. Johnson, Mo., 432 S.W.2d 284, 286(3); State v. Tyler, 349 Mo. 167, 159 S.W.2d 777, 780(9). On the record before us, we must assume that the defendant while serving the prior sentence did not undertake to set aside or vacate the conviction by utilizing any of the available remedies such as a motion under S.Ct. Rule 27.26, V.A.M.R. or a habeas corpus proceeding, or if he did so his effort was unsuccessful.

The defendant relies mainly on State v. Arbeiter, Mo., 408 S.W.2d 26, and State v. Falbo, Mo., 333 S.W.2d 279, to support his contention that the exhibits should not be considered because they did not show that a 'judicial finding' had been made in juvenile court with respect to the fifteen-year-old defendant as required by § 211.071. As shown above, this statute provides that, if a petition charging the equivalent of a felony is filed in juvenile court against a child fourteen or older, the judge in his discretion may dismiss the petition 'and such child or minor may be prosecuted under the general law' after hearing evidence and making findings. The Arbeiter case was a direct appeal from a murder conviction in which this court held that statements were not admissible in evidence which were elicited from the fifteen-year-old defendant by police officers in disregard of § 211.061 which requires the arresting officer to take the juvenile immediately to the juvenile court. Falbo is also a direct appeal from a conviction of a fifteen-year-old boy for murder. The indictment was returned to the Circuit Court of Clay County and the court on its own motion ordered the cause be removed to the juvenile court which thereafter entered an order finding that the defendant was not a proper person to be dealt with under the juvenile law and transferred it back to Division One of the Criminal Court. The defendant's motion to proceed with the trial in juvenile court was overruled and the ruling was affirmed on appeal. The Arbeiter and Falbo cases deal with alleged failures to follow statutory procedures regarding juveniles which were reviewed as trial errors on appeal. They do not reach the present issue.

The other pertinent cases on this issue are considered and applied in State v. Reid, Mo., 391 S.W.2d 200, which is dispositive of the question before us. The Reid case was a direct appeal from a conviction of stealing by shoplifting from a store in Sedalia. The trial court found the defendant had a prior conviction in the Circuit Court of Cole County for arson and sentenced her pursuant to the Second Offender Act. On appeal the defendant claimed the prior conviction was void because she was sixteen years old at the time of the prior conviction as shown by the prison records in evidence. At the time of the prior conviction for arson, there was, as there is now, a single judge in the Cole County Circuit Court who administers the general law as well as the provisions of the juvenile code. A separate juvenile division is not required. Art. V, § 28, Constitution of Missouri, 1945, V.A.M.S.; § 211.021(3), RSMo 1959, V.A.M.S.

We adopt this statement from the Reid case, 391 S.W.2d 200, at page 206(9):

'The validity of the prosecution of such a minor under the general law in accordance with the prior statutes has been considered in State ex rel. Wells v. Walker, 326 Mo. 1233, 34 S.W.2d 124, and in State v. Flores, 332 Mo. 74, 55 S.W.2d 953. In the latter case the court said in part, loc. cit. 955: 'These statutes were construed in State ex rel. Wells v. Walker, 326 Mo. 1233, 34 S.W.2d 124. It was held that, in a prosecution against a juvenile commenced under the general law, the circuit court had a right to proceed under that law. It was pointed out that, since no petition was filed alleging the...