State v. Harris

• Decision Date: 12 October 1964
• Docket Number: No. 2,No. 50637,50637,2
• Citation: 382 S.W.2d 642
• Parties: STATE of Missouri, Respondent, v. Phillip K. HARRIS, Appellant
• Court: Missouri Supreme Court

Page 642

382 S.W.2d 642

STATE of Missouri, Respondent, v. Phillip K. HARRIS, Appellant.

No. 50637.

Supreme Court of Missouri, Division No. 2.

Oct. 12, 1964.

Thomas F. Eagleton, Atty. Gen., Louis C. DeFeo, Jr., Asst. Atty. Gen., Jefferson City, for respondent.

Phillip K. Harris, pro se.

BARRETT, Commissioner.

On January 18, 1956, when Louise Okee, now described by the appellant Phillip K. Harris as 'his lady friend,' attempted to terminate their illicit relationship (he was then married and the father of seven children), he beat her to death with 'a steel car jack.' The circumstances in which the appellant Harris beat Louise to death, an irrefutable fact that he did not deny either then or now, were such that he was first charged with murder in the first degree. Subsequently an amended information was filed charging the appellant with murder in the second degree, whereupon, after advising with court-appointed counsel (two very competent lawyers), he entered a plea of guilty and was sentenced to fifty year's imprisonment. Seven years later, December 13, 1963, the appellant instituted this rather unique two-pronged proceeding to vacate the 1956 sentence and to permit him to withdraw his original plea of guilty. Essentially the proceeding is one to vacate the sentence under rule 27.26, V.A.M.R. on the ground or for the reason that there was 'manifest injustice' in the acceptance of his plea of guilty (Sup.Ct. Rule 27.25) in 1956 and therefore, he urges, the judgment of conviction on his plea of guilty should now be set aside. The trial court summarily denied the motion and Harris has appealed.

The appellant's complaints are that he was 'deprived of substantive procedural due process of law' in that by reason of his comparative illiteracy (a third grade education) there was no 'thorough determination of appellant's capabilities to adequately and clearly understand the law of the case.' This general abstraction means, so he says, that 'he was not advised of the various defenses available to him.' But in this connection he is not speaking of the defenses to the charge of second degree murder, he first objects that the charge of first degree murder was reduced to second degree by striking from the information the word 'deliberately.' He intimates that, unknown to him, the change in the information resulted from 'some kind of agreement between defense counsel and the prosecution.' Therefore, it is said, that he had a right to know but was not advised that he was not pleading guilty to murder in the first degree. In this connection he urges that he should have been advised of the reduction in the degree of the offense, 'because there are far more defenses in first degree murder than in a second degree one.' As to these rights he says that 'no one advised him that he forfeited more rights by pleading guilty than he gained by [not] so pleading: his act could possibly have been due to temporary insanity; to provocation, to fear of immediate danger; no one advised appellant he could have relied on the doctrine of self-defense; that there could have been a jury finding of manslaughter, a verdict for which a jury could have found.' And finally it is stated that 'the court did not advise appellant what charge he was being sentenced for. In effect, he was not lawfully advised of the nature of the charge he was being sentenced for.' It is urged that these circumstances and this case fall within and are governed by State v. Williams, Mo., 361 S.W.2d 772 and Williams v. Kaiser (1944), 323 U.S. 471, 65 S.Ct. 363, 89 L.Ed. 398, and that as in the Williams case the present judgment dismissing appellant's motion should be reversed.

But the insuperable difficulty with the appellant's position, both here and in the trial court, is that his motion, the record and the case are not comparable to those cases. Unfortunately for the appellant and the allegations of his motion a record was carefully made and preserved when he entered his plea of guilty in 1956 and that record is of course a part of this proceeding. State v. King, Mo., 380 S.W.2d 370. And the court in which he was convicted in the first instance, and in which he necessarily filed this motion, is not bound to accept as true allegations which the files and records of his original case show to be erroneous or untrue. State v. Ninemires, Mo., 306 S.W.2d 527, 531.

In any event, the official transcript, properly authenticated and filed here, contains these recitals and establishes these facts: The original information charging the appellant with murder in the first degree was filed on January 19, 1956. And the record recites that 'thereafter,' on January 31, 1956, 'Information is read to defendant charging the defendant with murder in the first degree.' The record entry then recites that attorneys Ray L. Shubert and George F. Sweitzer were appointed to represent appellant and he was 'advised that he would have a reasonable time in which to confer with his attorneys.' Thirty days later, on February 18, 1956, the record recites that the prosecuting attorney files an amended information 'reducing charge to murder in the second degree.' Next, the record entry recites that 'Defendant's counsel consent to reduction of charge and amended information is read to defendant. Defendant enters a plea of guilty as charged of murder in the second degree.'

If these bare record entries are not sufficient of themselves to dispose of the appellant's motion it further appears from the official transcript that 'At the time of the entry of plea of guilty and said sentence the following occurred in open Court.' First, the court directly addressed the defendant and established his name. Next the court addressed the prosecuting attorney and specifically inquired whether he was filing an amended information reducing the charge from first to second degree murder. Then the court addressed counsel and asked whether they consented to the reduction of the charge. Upon receiving an affirmative answer the court said, 'Mr. Harris, at this time I am going to read you this amended information that has just been filed.' And the court proceeded to read the information to the defendant, then the court asked the defendant how far he got in school ...