State v. Harris, 55716

• Decision Date: 14 June 1971
• Docket Number: No. 55716,No. 1,55716,1
• Citation: 467 S.W.2d 876
• Parties: STATE of Missouri, Respondent, v. William Thornton HARRIS, Jr., Appellant
• Court: Missouri Supreme Court

Page 876

467 S.W.2d 876

STATE of Missouri, Respondent, v. William Thornton HARRIS, Jr., Appellant.

No. 55716.

Supreme Court of Missouri, Division No. 1.

June 14, 1971.

John G. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, for respondent.

Paul M. Wooldridge, Boonville, for appellant.

HIGGINS, Commissioner.

Appeal from denial, after evidentiary hearing, of motion under Criminal Rules 27.26 and 27.25, V.A.M.R., to vacate and set aside judgment of conviction and sentence of 18 years' imprisonment entered upon plea of guilty to charge of robbery, first degree. §§ 560.120, 560.135, V.A.M.S.

As grounds for relief, the motion asserted:

'(a) The defendant was made a promise of eight (8) years to enter a plea of guilty; such promise was made by the prosecuting attorney, and the defendant was given eighteen (18) years after entering plea of guilty.

'(b) The defendant was threatened with the GAS CHAMBER death sentence, if he did not enter a plea of guilty * * * he feared being given death, inasmuch as the said threat was made the plea was coerced.

'(c) The defendant did not have an attorney at or during his preliminary hearing, * * * the same day that the defendant was arraigned for preliminary hearing is the day that the court appointed the * * * attorney but the defendant did not see or converse with the attorney * * * until the day of * * * entering of the plea of guilty.'

In denial of the motion, the trial court made these pertinent findings of fact and conclusions of law:

'Movant's basic complaint is that his plea of guilty was involuntary because of (1) a promise by the prosecutor to get a sentence of eight years and (2) threats of the prosecutor that if he stood trial he would get the death sentence or at least life. In view of this contention this part of the motion will be treated as presenting the issue of whether Movant is now entitled after sentence to withdraw his plea of guilty and have the judgment of conviction set aside 'to correct a manifest injustice' pursuant to S.C.R. 27.25.

'The court after hearing the evidence makes the following findings:

'1. That an offer was made to Movant that if he would plead guilty to the charge of robbery with a dangerous and deadly weapon the prosecuting attorney would recommend an 8 year sentence to the court. There was no promise made by the prosecutor to see that Movant got an 8 year sentence and there were no misrepresentations made to Movant to induce him to plead guilty.

'2. Movant testified he was threatened by the prosecuting attorney that as a Negro if he did not plead guilty and wanted a jury trial that the prosecutor would see that the white folks of the county would give him a death sentence or at least life imprisonment. Movant claims that he plead (sic) guilty because of fear as a result of this threat made by the prosecutor. The court finds that although the Movant did confer directly with the prosecuting attorney on several occasions that he was not threatened and that the plea of guilty was not entered by reason of fear of the consequences of standing trial as a result of any threat by the prosecuting attorney.

'3. There is no showing or complaint by Movant that he did not understand the nature and extent of the charge against him and the range of punishment. Movant does not deny his guilt of the charge or advance any theory of defense. Movant's apparent complaint is that he received a more severe sentence than he anticipated.

'4. The court finds that Movant entered a guilty plea in open court while represented by able counsel. That no promises, misrepresentations or threats were made to Movant to induce or coerce him to plead guilty. That the guilty plea was voluntary and made with the understanding of the nature and extent of the charges and the range of punishment.

'5. Movant complains that he did not have an attorney at or during his preliminary hearing. The court finds that an attorney was appointed for Movant and on his advice a preliminary hearing was waived.

'6. Movant also complains in his motion that he did not see or converse with his attorney until the day he appeared in Circuit Court and entered his plea of guilty. The court finds that there is no showing that counsel did not properly advise Movant or that he failed to explain to Movant the charge or was incompetent in any way.'

Appellant contends the court erred in finding his plea of guilty was voluntary because it 'failed to find that the defendant was not misled or under misapprehension or that he could not have reasonable been misled thereby causing his plea of guilty'; and he charges (pro se) that the court erred in finding 'that movant was adequately represented by counsel * * *because of the failure of counsel to instruct movant of all avenues of defense * * *, and further giving his permission for the prosecuting attorney to interrogate movant and coercion (sic) a plea of guilty from him without the preseance of counsel.'

The record shows that William Thornton Harris, Jr., was arrested February 6, 1965, for participation in an armed robbery in Fayette, Howard County, Missouri. A preliminary hearing was set for February 19, 1965. On that date, defendant appeared without counsel; Mr. Wilbur F. Daniels of the Howard County Bar was appointed to represent defendant, and the preliminary hearing was waived on advice of counsel. The plea of guilty was entered and sentence was pronounced March 4, 1965, and this motion was filed March 28, 1969.

All testimony was adduced by appellant. From his own version of the circumstances, it appears that he was twenty-three years old when arrested in Columbia for the Fayette robbery. He consulted with the prosecuting attorney, Clyde Rogers, in his office 'once or twice' before the preliminary hearing. On these occasions Mr. Rogers told him he would recommend an 8-year sentence on a plea of guilty to first degree robbery. He understood that the prosecuting attorney had no power to fix the sentence. He first consulted with his attorney, Mr. Daniels, on February 19, 1965, 'on the telephone in the prosecutor's office * * * and he said he would be down to the jail to talk with me in the next day or so.' He next saw Mr. Daniels 'about ten minutes before I went to court on March the 4th.' Sometime after the preliminary hearing Mr. Rogers 'had me brought up,' and they discussed a pending burglary charge which 'he said he would drop * * * if I would plead guilty to the robbery.' The conference lasted about 'half an hour or forty-five minutes.' Mr. Daniels was not present and defendant 'didn't know whether he was suppose(d) to be there or not.' At the last conference with Mr. Rogers, he changed any agreement with respect to the guilty plea and said 'he would recommend me to twenty years.' He wanted to plead not guilty and 'we had a misunderstanding about it * * * and this is when he threatened me that my charge carries the maximum penalty * * * and I hadn't talked with my attorney and I didn't know what really to do.' He had discussed other difficulties with the prosecuting attorney on frequent occasions. In conference with Mr. Daniels on March 4, 1965, 'he asked me if this is still what I wanted to do is plead guilty, and I told him yes, and I explained to him that the prosecutor said that he would ask for twenty years, and he said if he did do that, being this is my first felony conviction, that the court probably wouldn't go along with the recommendation. * * * Told him we had talked about eight years and then he called me back after preliminary and before I came to court me and him had words and he put it at twenty years, that he would ask for that.' Mr. Daniels thought he would get 'something like ten years * * * being it was my first felony conviction.' Mr. Daniels made no such guarantee. Mr. Daniels spoke and argued in his behalf at the court proceeding. Defendant acknowledged that when he pleaded guilty the court questioned him with respect to promises or inducements, explained his rights, and that he was informed of the possible penalties if he pleaded guilty. He was surprised when he got eighteen years 'because the prosecutor had asked for twenty,' which was 'the last thing he had said' with respect to a recommendation.

Wilbur F. Daniels was appointed counsel for defendant by the magistrate court. 'Judge Funk called me and * * * I went over there and discussed it briefly with him, and at that time I advised him that * * * there was no point in having a preliminary hearing, and we waived it. * * * I talked to him two or three different times and my understanding was he wanted to plead guilty, there was never any question about that, the hassle was over punishment.' He conferred with the prosecuting attorney and learned that the defendant 'had been negotiating with the prosecutor about the sentence. * * * And I never did make too much sense out of what the negotiations were but * * * what I understood about it * * * from this defendant and Clyde was that if he plead (sic) guilty that there was some talk at one time about an eight-year sentence, and I talked to him and he didn't want to take eight years, so I was trying to get Clyde to reduce the recommendation to a lesser number that would appeal to him, and that is where we hung up, so * * * from Clyde's standpoint, * * * if he didn't want to plead guilty to eight we just won't have any recommendation and Clyde would argue for twenty years.' He acquiesced in the conferences between his client and the prosecuting attorney because, as he told the prosecuting attorney, 'anything you all can work out I would want to reserve judgment on and perhaps advise him, but do all the talking you would like.' Following any such conferences and before entry of the guilty plea, Mr. Daniels 'told Harris that if he did not follow through with whatever the deal was that he had had with Clyde,...