State v. Good
| Decision Date | 13 June 1966 |
| Docket Number | No. 51831,No. 1,51831,1 |
| Citation | 403 S.W.2d 594 |
| Parties | STATE of Missouri, Respondent, v. Leroy GOOD, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Donald R. Wilson, Asst. Atty. Gen., Jefferson City, for respondent.
Dewey S. Godfrey, Jr., St. Louis, for appellant.
HOUSER, Commissioner.
Leroy Good appeals from the judgment of the Circuit Court of the City of St. Louis, Division No. 1, overruling his motion, filed under Criminal Rule 27.26, V.A.M.R., to vacate the judgments and sentences imposed in three cases.
On June 26, 1963 appellant was sentenced to three consecutive five-year terms in the penitentiary on three separate charges, two of which were statutory rape and one of which was sodomy. After he was confined in the penitentiary he filed this proceeding, alleging that he was sentenced in violation of state and federal constitutions and laws, for the reason that the sentences 'are unjust, severe, arbitrary and amount to excessive punishment and that at the time he was sentenced he had been advised by his counsel of record * * * that he was to receive two years on each of said cases, said two-year sentences to run concurrently and not consecutively. * * * that this Petitioner was unable to understand and comprehend the meaning of the Court when, during the course of said sentencing, he was asked if he fully understood that the Court could sentence him to the full limit of the punishment as allowed by the statutes of the State of Missouri and that at the time of being so questioned by the Court he remained under the full idea and comprehension that he was to be sentenced to a sentence of two years concurrently on all three charges.'
The circuit judge conducted a hearing on the motion on October 15, 1965. Appellant was present and was represented by counsel. Appellant testified, as did his former counsel, Mr. Curtis, who represented him when he entered his pleas of guilty. A transcript of the hearing of June 26, 1963 was introduced in evidence. Appellant originally pleaded not guilty. On the date last mentioned he and Mr. Curtis appeared in court, withdrew the pleas of not guilty and entered a plea of guilty to each of the three charges, whereupon counsel for the state recommended two years on each charge, to run concurrently, for a total of two years. The following then transpired:
'The Court: You have been convicted on three prior occasions, is that correct?
'The Court: You did that of your own free will?
The court then questioned appellant for some time and in considerable detail with respect to the facts in each of the three cases, and ascertained that in each case appellant had voluntarily authorized his attorney to plead guilty for him. Then the following occurred:
'The Court: You understand there has been no promise made to you of any kind or character?
'Mr. Good: No promise, never made any promise, no.
'The Court: You understand that you're entitled to trial by Jury in the event you see fit to have a jury trial?
'Mr. Good: I understand that, yes, sir.
'The Court: You understand that the Court is not bound to take any recommendation of the State?
'Mr. Good: Recommendation of the State?
'The Court: You understand that I'm not bound to take any recommendation of any kind or character?
'Mr. Good: Yes, sir.
'The Court: You understand that?
'Mr. Good: Yes, sir, I do, yes.
'The Court: I will not take the recommendation of the State in Cause No. 411--L. Is there any reason you should not be sentenced at this time.
'Mr. Curtis: No legal reason why he shouldn't be sentenced.
'The Court: All right. 411--L, on Indictment for Statutory Rape, the defendant will be sentenced to five years in the Missouri State Penitentiary.
'Any legal reason why you should not be sentenced in Cause No. 412--L?
'Mr. Good: No, Your Honor.
'The Court: Cause No. 412--L on the charge of Sodomy the defendant will be sentenced to five years in the Missouri State Penitentiary. Such sentence shall run consecutively to the sentence imposed in Cause No. 411--L, and the total is ten years.
'Cause No. 413--L, any legal reason why you should not be sentenced?
'Mr. Good: No, Your Honor.
'The Court: The defendant will be sentenced to a term of five years in the Missouri State Penitentiary to run consecutively to the sentence heretofore imposed in 411--L and 412--L for a total of fifteen years. That's for the three cases.
'Do you want to make application for jail time?
'Mr. Curtis: Yes, Your Honor.
'The Court: Jail time will be allowed in the three matters. The Defendant will be ordered committed to the Department of Corrections for, to serve the sentences and be remanded to the custody of the Sheriff at this time.
'Mr. Good: Did I hear you correctly, Your Honor, Oh, please.
'The Court: Tell me what you thought you heard?
'Mr. Good: Did you say fifteen years in the Penitentiary?
'The Court: Yes, five, five and five.
Mr. Good: Oh, Your Honor, please, sir.
'The Court: Remanded to the custody of the Sheriff.
At the hearing on October 15, 1965 appellant testified that while awaiting trial Mr. Curtis visited him at the jail and told him that the circuit attorney would recommend a two-year sentence in the penitentiary, to run concurrently on all three charges; that he entered a plea of guilty to these charges with that in mind, and that he thought he would receive and expected to receive a sentence on that basis, that is, two years on each charge, to run concurrently, and not consecutively, for a total of two years. He remembered and acknowledged the accuracy of the record of the questions and answers given at the hearing of June 26, 1963, including the fact that the judge had told him that he was not bound by the circuit attorney's recommendation of two years and that he had assured the court that no promises were being made for his plea of guilty. He conceded that he had made no objection after each five-year sentence was imposed, claiming that he had been thinking only of the two-year recommendation. He further claimed that prior to entering the pleas of guilty he was not informed by the court or by anyone acting for the court as to the range of punishment for charges of statutory rape and sodomy, and that he did not know exactly what maximum sentence he could receive.
Mr. Curtis on June 26, 1963 had been a member of the bar for one year. He testified that he advised appellant that the circuit attorney would recommend two years on each count, to run concurrently; that appellant 'may have known' that the recommendation was not binding on the judge--that he so informed his client--but that based on his experience as a lawyer and what other lawyers had told him, he informed appellant that the recommendation of the circuit attorney was always accepted--that for all practical purposes the judge was sure to accept the recommendation. Mr. Curtis knew the range of punishment prior to the entry of the pleas but did not remember whether he told appellant the range of punishment. No objection was raised by Mr. Curtis at the time the three sentences were passed and he gave the court no reason why appellant should not be sentenced to five-year terms. After the sentences were passed, perhaps that afternoon, Mr. Curtis asked the judge to set aside the sentences so that not guilty pleas could be entered, but 'it was too late.' Mr. Curtis did not file a motion to set aside the sentences and withdraw the pleas of guilty, although he understood that the court had control over the sentences and judgments for thirty days after entry of judgment.
There was in evidence a report to the circuit judge of an examination of appellant at a hospital, dated June 5, 1963, which stated:
On this appeal it is claimed that the court erred in failing to fully determine whether appellant knew the exact nature of the charges filed against him; whether appellant knew the full range of punishment that could be imposed for these charges, or whether appellant was proceeding under some misapprehension or mistake in entering the pleas. Appellant's theory is that he did not know and understand the consequences of his plea; that he was induced to plead guilty by the holding out of hope which proved to be false and that he is the victim of mistake and misapprehension. It is argued that appellant had less than an eighth grade education, some organic brain damage, and a striking personality trait that made it virtually impossible to obtain a direct yes or no answer from him; that when a court knows that a defendant pleading guilty is relying upon receiving a certain number of years of imprisonment the judge, in addition to notifying defendant that the court will not be bound by the recommendation, should tell defendant what the judge has in mind relative to a sentence, ask if he still wants to proceed on his plea of guilty or go to trial, and permit him to withdraw his plea of guilty and consult further with counsel as to further procedure.
The State contends that appellant's motion states no right to relief under Criminal Rule 27.26,...
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