State v. Jackson

• Decision Date: 17 September 1974
• Docket Number: No. 36008,36008
• Citation: 514 S.W.2d 638
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Mitchell JACKSON, Defendant-Appellant. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 638

514 S.W.2d 638

STATE of Missouri, Plaintiff-Respondent, v. Mitchell JACKSON, Defendant-Appellant.

No. 36008.

Missouri Court of Appeals, St. Louis District, Division One.

Sept. 17, 1974.

Motion for Rehearing or Transfer Denied Oct. 15, 1974.

Charles Kitchen, Public Defender, John F. Bauer, James C. Jones, Asst. Public Defenders, St. Louis, for defendant-appellant.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Stephen D. Hoyne, Phillip Koppe, Asst. Attys. Gen., Jefferson City, Brendan Ryan, Circuit Atty., Daniel J. Murphy, Asst. Circuit Atty., Charles B. Blackmar, Spec. Asst. Atty. Gen., St. Louis, for plaintiff-respondent.

DOWD, Chief Judge.

Appeal from the denial of a motion to withdraw a guilty plea made pursuant to Supreme Court Rule 27.25, V.A.M.R. Defendant was sentenced to a term of seven years, to run consecutively with the sentence in another cause not a part of this appeal. We affirm.

On December 8, 1972, defendant Mitchell Jackson was charged by indictment with perjury. At the arraignment on this charge, defendant entered a plea of not guilty. At a later date, a substitute information in lieu of indictment was filed charging defendant under the Second Offender Act with the commission of two prior felony convictions in addition to the perjury charge. ¹ On June 1, 1973, defendant appeared before the court with his attorney, withdrew his plea of not guilty, and entered a plea of guilty to the charge of perjury.

During the questioning conducted by the court, which is required under Rule 25.04 before a guilty plea can be accepted, the following exchange occurred:

'The Court: Were any promises made to you by anyone that caused you to plead guilty to this charge?

The Defendant: No, your honor.

The Court: Do you understand, Mr. Jackson, that if any promises had been made to you by anyone, and this would include the Circuit Attorney and your own attorney, in order to induce you to plead guilty to this charge, that the Court would not be bound by these promises?

The Defendant: Yes, your Honor.

The Court: Do you understand that the Judge will set the sentence in this case?

The Defendant: Yes, your Honor.'

In other parts of the questioning, defendant further stated that his plea of guilty was being made voluntarily and with an understanding of the nature of the charge against him, as well as the range of punishment for the crime charged.

At the close of the questioning the state presented its recommendation for a sentence of thirty months in the Department of Corrections, the sentence to run concurrent with a fifteen year sentence previously imposed by the court in another cause. On the day of sentencing the court did not follow the state's recommendation, and instead, imposed a sentence of seven years, to run consecutively with the fifteen year sentence.

Immediately after sentencing, defendant moved orally to withdraw his guilty plea. The motion was supported by his counsel's statement that, prior to the plea, the Circuit Attorney had promised to recommend a thirty month concurrent sentence. This motion was denied.

Defendant then filed a written motion to set aside sentence, or in the alternative, to withdraw his guilty plea. This motion was supported by defendant's statement that, 'Said plea was entered on the representation of the Assistant Circuit Attorney and attorney for the defendant that defendant would be sentenced to a term of thirty (30) months . . ..' This motion was also denied.

The oral motion and the written motion are in conflict as to what promise was actually made. On appeal, defendant takes the position of the oral motion: that the Circuit Attorney promised merely to recommend a thirty month concurrent sentence. This promise was kept. Defendant does not claim that there was any representation that defendant was certain to receive the recommended sentence.

Defendant appealed to the Missouri Supreme Court contending that the motion raised questions requiring constitutional construction. Finding lack of jurisdiction the Missouri Supreme Court transferred the appeal to this court.

The sole issue before us is whether the trial court erred in refusing to allow the defendant to withdraw his plea of guilty. It is well established that a defendant may not withdraw his plea of guilty as a matter of right. State v. Mountjoy, 420 S.W.2d 316, 323 (Mo.1967). After a plea has been properly accepted, it may only be withdrawn to correct manifest injustice. Rule 27.25. The burden is on the defendant to prove by a preponderance of the evidence that manifest injustice has occurred. Johnson v. State, 479 S.W.2d 416, 418 (Mo.1972). Defendant has failed to show that such manifest injustice has occurred.

Defendant's contention is that the failure of the trial court to allow him to withdraw his plea after the court chose not to follow the recommendation of the state constituted manifest injustice. This same contention was argued and laid to rest in the recent case of Brown v. State, 485 S.W.2d 424 (Mo.1972). That case held that the fact that a guilty plea was the result of...