State v. McCullough, 9272
| Decision Date | 28 March 1973 |
| Docket Number | No. 9272,9272 |
| Citation | 493 S.W.2d 353 |
| Parties | STATE of Missouri, Plaintiff-Respondent, v. David McCULLOUGH, Defendant-Appellant. |
| Court | Missouri Court of Appeals |
Dan L. Birdsong, Rolla, for defendant-appellant.
John C. Danforth, Atty. Gen., Charles B. Blackmar, Sp. Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Appellant was charged in the Circuit Court of Phelps County, Missouri, with the possession of 'mescaline', a hypnotic and hallucinogenic drug prohibited by Chapter 195, RSMo 1969, V.A.M.S.
On February 25, 1971, appellant entered a plea of guilty to said charge and on the same day was sentenced to a term of three years confinement under the supervision of the State Department of Corrections of the State of Missouri. On October 27, 1971, appellant filed in the Circuit Court of Phelps County his motion to vacate under Rule 27.26, V.A.M.R. This motion was denied and an appeal followed to this court.
The appellant's request for relief, as stated in his motion, is:
'The plea of guilty was involuntarily (sic) entered without full understanding of the law in relation to the facts, inadvertently made through coercive threats on the part of the prosecutor.'
In his Supplemental Brief attached to his motion he further contends:
'Defendant-movant respectfully submits and contends that the foregoing facts clearly show that the plea of guilty was involuntarily made through the coercive actions and statements on the part of the prosecutor and, as well, that there was no factual basis for the alleged offense, making it apparent that the defendant-movant entered the plea of guilty without a complete understanding of the law in relation to the facts . . .. It is reasonably clear that had the Court complied with the provisions of Missouri Supreme Court Rule 25.04--requiring that the court 'shall not accept the plea without first determining that the plea is made voluntarily with understanding of the nature of the charge . . .'--such plea of guilty would have been rejected by the Court because:
'(1) There was no substantial proof or evidence to establish that the alleged drugs, or 'ten capsules' had ever been in existence, much less in the 'possession' of defendant-movant, as no drugs had ever been introduced into evidence or shown to have been in his possession, either at the investigative (sic) stage by the police at the preliminary hearing, or at any other time.
'(2) The perjurious testimony of Betty Pointer, even if it could be construed as a foundation for the alleged offense charged, was wholly unsupported--which would have been revealed to the Court and which will be shown upon the evidentiary hearing on the within Motion.
'(3) Under such circumstances, it would have been revealed to the Court that the defendant-movant could not intelligently and understandingly enter the plea of guilty, where the alleged offense was wanting in proof and evidence, and that the plea of guilty was involuntarily made through the combination of coercion and lack of understanding as to the nature of the charge against him.'
William Floyd Howard, an inmate of the Missouri State Penitentiary, appeared as a witness at the hearing on appellant's Rule 27.26 Motion. Appellant also appeared. Their evidence was identical as to 'plea bargaining' and entering of pleas of guilty. Howard's and appellant's evidence was in direct conflict with court records and the testimony of Zane H. White, the prosecuting attorney of Phelps County.
The trial court did not make in his decision on appellant's motion a finding of fact or declaration of law of the facts existing at the time of the entry of the plea of guilty or at the time of the hearing of his motion under Rule 27.26. This should have been done in order for this court to determine whether or not the decision of the trial judge was supported by the evidence or was erroneous. Further, no determination was made whether there was compliance with the requirement of Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State of Missouri v. Turley, 443 F.2d 1313, 1318 (8th Cir. 1971); Flood v. State, 476 S.W.2d 529 (Mo.1972).
On March 14, 1972, the trial court, after an evidentiary hearing on appellant's motion under Rule 27.26, entered the following judgment:
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Eaton v. State
...required reversal and remand. State v. Herron, 376 S.W.2d 192 (Mo.1964), and Herron v. State, 498 S.W.2d 530 (Mo.1973); State v. McCullough, 493 S.W.2d 353 (Mo.App.1973) and McCullough v. State, 507 S.W.2d 428 (Mo.App.1974). Reversal and remand are not required in this case, however, for we......
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...of fact and conclusions of law as a prerequisite to further appellate review. Porter v. State, 504 S.W.2d 30 (Mo.1974); State v. McCullough, 493 S.W.2d 353 (Mo.App.1973). The only cases in which remand has not been required are those where movant obtained a hearing and proper judgment with ......
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