State v. Kitchin
| Decision Date | 11 March 1957 |
| Docket Number | No. 45797,No. 2,45797,2 |
| Citation | 300 S.W.2d 420 |
| Parties | STATE of Missouri, Respondent, v. Olin KITCHIN, Appellant |
| Court | Missouri Supreme Court |
Olin Kitchin, appellant, pro se.
John M. Dalton, Atty. Gen., Aubrey R. Hammett, Jr., Asst. Atty. Gen., for respondent.
The present appeal is from an order refusing to vacate the judgments and sentences in two criminal causes and dismissing defendant's motion, which was filed under our Rule 27.26, 42 V.A.M.S. The matter will be reviewed de novo here. Rule 28.05. The order in question was made upon a review of the motion, the files and the records, and without hearing evidence. This the court may do under the express provisions of the rule, if he is thereby satisfied that the movant is entitled to no relief. State v. Cerny, Mo., 286 S.W.2d 804, 807; State v. Shell, Mo., 299 S.W.2d 465. The proceedings under Rule 27.26 constitute a collateral attack upon the judgment, and they must meet all the requirements of a collateral attack. State v. Cerny, supra. Appellant, who will be referred to as the defendant, asked that the two causes be consolidated for the purposes of his motion; they were so considered by the trial court, and we shall do likewise.
On October 17, 1933, defendant entered a plea of guilty to each of two separate charges of robbery with a dangerous and deadly weapon, which charges had been instituted by informations; these cases were numbered, respectively, 99922 and 99924. Defendant was thereupon sentenced, in each case, to life imprisonment. The present motion, denominated as 'Petition and Motion' and the argument attached, are rather voluminous; they are filed here by defendant pro se; they contain considerable intermingling of statements of fact, conclusions, and argument. Sundry exhibits are attached, consisting of copies of parts of the record, files and minutes, affidavits, and a newspaper article. We shall consider all these documents with considerable liberality from the standpoint of our rules.
The substance of defendant's contentions in the trial court were: that he was not represented by counsel, that he was not properly informed of the nature of the charges, that he was not given time to consult friends or counsel or to prepare his defense, that the proceedings were unduly hurried, that he was misled by promises of the police, and that, generally, he was 'induced' and coerced into pleading guilty. He has elected to file a brief here, and his contentions as now presented in its 'Points and Authorities' are: that he was not represented by counsel at the time of his allocution and sentence, in violation of the requirements of due process; that he may properly attack the sentence and judgment in this proceeding as in habeas corpus; that the court may go beyond the record and consider extraneous evidence; and that, by failure to deny his allegations, the state has admitted them.
It will be impossible to recite here all the facts alleged by the defendant or to discuss all his exhibits. We have, however, considered all of them. In substance he asserts: that he and his brother Orrin were arrested in Springfield on August 24, 1933; that the officers learned that the car he had had been stolen in Kansas and that he was wanted for questioning concerning 'certain offenses alleged to have been committed' in Kansas; that he was held in jail for 41 days, was questioned repeatedly, and was abused, cursed and threatened by police and detectives. In this connection we note, parenthetically, that one of the exhibits is a newspaper article reciting the details of an attempted jail break in Springfield by defendant which, incidentally, was said to have occurred immediately upon the conclusion of an interview by him with two attorneys in the jail office. It was further stated in this article that defendant had gotten possession of a revolver with which he fired at least one shot; he also was shot in the hand and beaten with a pistol by a special officer who assisted in the process of subduing him, while he was fighting the jailer. Further, defendant asserts in his motion: that he was later told by detectives that if he would sign a statement 'cleaning up' the police blotter, his brother would be released and he would be sentenced to a term not exceeding 10 years; that thus, under threats, coercion and misleading promises he signed a statement; that one Fred Stewart, an attorney, was employed to present an application for habeas corpus to the circuit court, for one or both (it being virtually impossible to tell which version is actually asserted); that upon a hearing on August 27, 1933, his brother was promptly released, but he was held; that Stewart's services were thereupon completed and terminated; that he, the defendant, subsequently told the prosecuting attorney of the 'promises' made to him, that he was innocent, and that he wanted a lawyer, but that the latter replied that the detectives were not running his office, that he would have no difficulty in obtaining a conviction and that if he, defendant, refused to plead guilty the prosecutor would do his utmost to get the maximum penalty. He further asserts: that on October 17, 1933, he was taken without prior notice to the Circuit Court, in 'shackles' and 'chains'; that he then conversed briefly with the prosecuting attorney and that, in answer to his request, the prosecutor said that an attorney would be appointed for him 'in time,' but declined his request for a postponement; that informations against him were then and there filed for the first time; that the court appeared to read the informations to himself, told defendant that he was charged with the separate crimes of robbing two filling stations, and asked him how he wished to plead; that he, alone, friendless, confused and ignorant of his rights, but knowing that he had signed a statement, 'felt that perhaps he'd best throw himself on the mercy of the court,' and pleaded guilty to both charges; that the prosecutor made no recommendation concerning the sentence or sentences; that defendant told the court what he considered to be mitigating circumstances, but that the court very 'curtly' sentenced him to life imprisonment on each charge, the 'entire proceedings of this 'so-called trial' taking less than fifteen (15) minutes actual time.'
The record of the proceedings in each case on October 17, 1933, appears as two entries. The first entry in each case is as follows: (There are two or three wholly immaterial typographical variations in the two entries.) The second entry in each case recites that the prosecuting attorney and 'the defendant in his own proper person, and in the custody of the Sheriff' appeared in open court, that defendant was granted allocution, and, he failing to show cause why judgment should not be pronounced, judgment and sentence were thereupon pronounced.
In August, 1954, defendant filed in the Circuit Court of Greene County motions for nunc pro tunc entries in each of these cases, seeking thereby to erase all recitals of the fact that he was represented by counsel. Both motions were overruled, appeals were taken, and the judgments were affirmed here. State v. Kitchin, Mo., 282 S.W.2d 1 and 5. As there shown, docket entries recited in three different places that defendants was represented by named counsel. The facts recited in that previous opinion may be considered as supplemental to those now stated. This court there held that there was no basis in the record for a nunc pro tunc order in either case, thus reaffirming the record entries showing that defendant was represented by counsel, as recited above. Defendant insists that in the present proceeding the trial court, as shown by its memorandum opinion filed, erroneously held that our prior opinion constitutes an adjudication that the records might not be impeached. We need not consider any allegation of error, for we are now passing upon this matter de novo. At least the finality of the form of the entries has been determined, and the sole remaining question is whether they may now be collaterally attacked.
Defendant has cited many federal cases; it would be wholly impracticable to discuss them individually. Generally, they establish the following propositions: that, consonant with due process, a defendant charged with a serious crime (including state proceedings) is entitled to the assistance of counsel unless he...
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