State v. Mandel, 59122

• Decision Date: 20 August 1991
• Docket Number: No. 59122,59122
• Citation: 814 S.W.2d 16
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Ruth MANDEL, Defendant/Appellant.
• Court: Missouri Court of Appeals

Page 16

814 S.W.2d 16

STATE of Missouri, Plaintiff/Respondent, v. Ruth MANDEL, Defendant/Appellant.

No. 59122.

Missouri Court of Appeals,

Eastern District,

Division Four.

Aug. 20, 1991.

Padberg, McSweeney, Slater & Merz, Dennis F. Nalick, Alton, Ill., for defendant-appellant.

Robert McCulloch, Pros. Atty., Joan Moriarty, Asst. Pros. Atty., Clayton, for plaintiff-respondent.

KAROHL, Judge.

Defendant appeals denial of her post-sentencing Motion to Withdraw Plea of Guilty. Rule 29.07(d). The state charged defendant, Ruth Mandel, with a class A misdemeanor of harassment. Section 565.090 RSMo 1986. The case was set for trial on April 5, 1990. On that day, defendant entered a plea of guilty. On May 17, 1990, the court sentenced defendant to serve a term of ninety days in the custody of Justice Services, work release granted. The sentence was to begin on Saturday, May 26, 1990. On May 23, 1990, defendant filed a motion to withdraw the plea. On May 25, 1990, the court amended the beginning date for service of sentence to September 1, 1990, and defendant dismissed the Motion to Withdraw Plea of Guilty. On September 18, 1990, defendant filed a second Motion to withdraw Plea of Guilty. On September 28, 1990, the court heard evidence on the motion. On October 12, 1990, it denied defendant's motion. Defendant appeals denial. We remand.

DENIAL OF MOTION

The narrow question is whether the defendant offered a plea of guilty based upon her understanding of a plea agreement and was prejudiced by a violation of the agreement. The findings of the trial court are not responsive to all the issues presented by defendant's motion. Defendant alleged and offered evidence to support a finding there was a plea agreement that the state would not take a position on sentencing; it would make an open recommendation. The state agrees there was an agreement but the terms were different. The state claims it agreed to a blind plea which means defendant pleads against the state's recommendation. The court's order does not clarify the confusion.

On October 1, 1990, the court denied defendant's Motion to Withdraw Plea and issued the following order:

Upon hearing upon defendant's motion to set aside her plea of guilty the court finds defendant knowingly and voluntarily entered her plea of guilty. The court further notes that while the defendant through her attorney(s) and the prosecutor discussed their understandings of open recommendations, blind pleas and pleading against recommendations that the court understood it was not bound by one plea agreement and sentenced defendant based upon what it considered appropriate. Defendant motion to withdraw set plea is denied.

The court's finding that the plea was knowingly and voluntarily entered into, see Rule 24.02(c), does not satisfy the mandatory requirements of Rule 24.02(d) when a defendant's plea of guilty to a misdemeanor or a felony involves a plea agreement. Rule 24.02(d)(2) requires:

If a plea agreement has been reached by the parties, the court shall, on the record, require the disclosure of the agreement in open court or, on a showing of good cause, in camera at the time the plea is offered. Thereupon the court may accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the pre-sentence report.

Subsection 3. Acceptance of a Plea Agreement. If the court accepts the plea agreement, the court shall inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement.

Subsection 4. Rejection of the Plea Agreement. If the court rejects the plea agreement, the court shall, on the record, inform the parties of this fact, advise the defendant personally in open court or, on a showing of good cause, in camera, that the court is not bound by the plea agreement afford the defendant the opportunity to then withdraw his plea, and advise the defendant that if he persists in his guilty plea, the disposition of the case may be less favorable to the defendant than that contemplated by the plea agreement.

The existence of a plea agreement and a subsequent plea of guilty relying on the agreement will support a plea only if the requirements of Rule 24.02(d)(2) are met. If the court complies with Rule 24.02(d), the terms of the agreement should be disclosed to the court and accepted by the court. If disclosed and rejected, the rule requires an opportunity to withdraw the plea.

There is no dispute between defendant, defendant's counsel and the prosecuting attorney that there were negotiations and a plea agreement. Defendant and ...