State v. Moreland, 51333

• Court: Missouri Supreme Court
• Writing for the Court: EAGER
• Citation: State v. Moreland, 396 S.W.2d 589 (Mo. 1965)
• Decision Date: 08 November 1965
• Docket Number: No. 51333,No. 2,51333,2
• Parties: STATE of Missouri, Respondent, v. Wesley MORELAND, Appellant

Page 589

396 S.W.2d 589

STATE of Missouri, Respondent, v. Wesley MORELAND, Appellant.

No. 51333.

Supreme Court of Missouri, Division No. 2.

Nov. 8, 1965.

Motion for Rehearing or to Transfer to Court En Banc Denied

Dec. 13, 1965.

Norman H. Anderson, Atty. Gen., Howard L. McFadden, Asst. Atty. Gen., Jefferson City, for respondent.

Jay White. Rolla, for appellant.

EAGER, Presiding Judge.

This appeal is from an order denying a motion to vacate a judgment and sentence, filed under Rule 27.26, V.A.M.R. A prior appeal from an order denying the same motion was disposed of here by an opinion appearing at 351 S.W.2d 33. There we held that the motion raised questions of fact on which the petitioner was entitled to a hearing, and we reversed the judgment and remanded the case. Such a hearing has now been held, with the petitioner present and testifying, the trial court has made findings of fact as required by the Rule, and the motion has again been denied. We consider the matter de novo, Rule 28.05, but give deference to the findings of the trial court in so far as they involve the credibility of witnesses. Rule 73.01(d). We shall refer to the petitioner as the defendant.

Most of the necessary facts appear in our prior opinion, but for convenience we relate the essential background facts here. We have now a more complete record, for the entire Circuit Court file was offered and received in evidence at the hearing on the motion. On January 1, 1929, defendant was arrested upon complaint of one Dora Shinkle on a charge of forcible rape. A preliminary hearing was held on January 5, 1929, defendant was bound over to the Circuit Court, and he was remanded to jail in default of bond. Numerous witnesses were subpoenaed for the preliminary hearing and fourteen witnesses thereafter signed an appearance bond for their appearance in the Circuit Court at the January 1929 term. An information charging defendant with forcible rape was filed in the Circuit Court on January 28, 1929. The records of the Circuit Court, as more particularly set out in our prior opinion, show that defendant appeared in court in January 28, 1929, in custody of the sheriff, entered a plea of guilty and, after allocution, was sentenced to life imprisonment.

On January 28, 1947, defendant filed a petition for habeas corpus in the Circuit Court of Cole County. We shall refer to this and the ruling thereon later, as these facts now appear in certified form in the files of the Maries County Circuit Court which were made a part of the hearing record. The writ was denied after a hearing on February 15, 1947. On October 21, 1959, defendant filed in the Circuit Court of Maries County a motion to vacate the judgment and sentence. Generally, both the petition and motion just referred to asserted the same grounds for relief as does the present motion, but with some differences and amplifications not now present. That motion to vacate was denied without a hearing, and no appeal was taken.

The grounds of the present motion filed on December 8, 1960, are well digested in our prior opinion. There we said: 'The substance of those allegations is that (1) appellant had no counsel when he pleaded guilty, (2) the circuit court made no inquiry as to whether he had counsel or could obtain counsel to advise and assist him or whether he was 'intelligently able to knowingly waive such right,' and (3) the prosecuting attorney and the circuit court knew that he 'was an uneducated person having no experience with or knowledge of the law and having only the equivalent of a second grade elementary education.'' The real issue here now is whether defendant intelligently and voluntarily waived his right to counsel at the time of his plea. Defendant has made a casual allegation of 'the duress of dire threats and false promises,' which he has made no effort to sustain by evidence; he also alleged that he was arraigned without any preliminary examination which allegation is proven totally untrue by the files. On the prior appeal we concluded our opinion as follows: 'We do not purport to imply what the true facts are as to appellant's allegations in his motion, or to infer what should be the 'findings of fact and conclusions of law with respect thereto.' However, appellant is entitled to a hearing on his motion in which he is afforded the opportunity to establish the facts as alleged in his motion, and it was error for the trial court to overrule the motion without the hearing contemplated and required under the circumstances by Supreme Court Rule 27.26.'

We now consider the record of the hearing held pursuant to our mandate. Defendant was represented by counsel at that hearing, and the same counsel has briefed and argued this appeal.

Defendant testified in substance as now related. He was born in 1888, and was 'around 40' at the time of these events; he had been and was engaged in farm work; he had gone to the second grade in school, but had learned to read and write after leaving school; he was, at the time of the hearing, too nervous to write; he had known the complainant all his life and formerly worked for her; he was arrested and placed in jail where he remained for nearly a month before his arraignment; he first said that he did not remember what happened on the day he entered his plea and that this was the first time he was ever in the courthouse, but he then proceeded to detail the occurrences; on direct examination he testified that the Judge said that he was charged with rape, and that the prosecuting attorney asked him how he pleaded; that he entered a plea of guilty by nodding his head (his evidence was somewhat incomplete at that point, but it was apparently cleared up later), and the Judge said: 'I give you life'; that he started out the door with the sheriff and the Judge told him to wait, saying: 'Have you a lawyer?'; that he answered that he did not, and the Judge said: 'The court could * * * [later related as 'could give you one'] but 'he didn't say he would,' and, finally, the Judge said: 'Take him on out'; that he never told the Judge that he did not want a lawyer, and that he had no money to hire one; that he had his dinner and was taken to the penitentiary that evening. Defendant also testified that the prosecutor had previously told his father, mother, uncle and aunt that if he would plead guilty 'he'd give me five years * * *'; but I said 'Well, I ain't guilty * * *'; that 'they,' meaning his immediate family, 'told me to plead guilty'; that it was his understanding at the time of the plea that he would get five years, but he did not know whether the Judge had been consulted; that no one informed him of the limits of punishment for this charge.

On cross-examination (and redirect) the defendant testified: that his uncle Dave James owned a large farm, and was present in court at the time of his sentence, but he made no statement concerning his supposed agreement with the prosecutor; that he, defendant, did not ask to talk to an attorney, and that the Judge never told him that he did not need one; that the Judge said that he 'could appoint me a lawyer but he never said he would'; that he did not ask defendant if he wanted a lawyer; that he did not know if lawyers were present in the courtroom; that, so far as he knew the sheriff never refused to let anyone see him in the jail, but nobody came to see him there; that he should have had a lawyer.

The testimony of defendant as to whether or not he told his fellow prisoner(s) what to incorporate into the present motion, is very conflicting; at some places he said 'It's their idea,' that he never told 'him' what to 'write,' and that he 'never told nobody to write it'; at another place it was indicated that he did tell his helper or helpers what had 'happened here' and 'give him ten dollars.' Actually, this is not material, for the motion was filed and it is here for our action. The background does, perhaps, shed some light upon some of the rather extravagant allegations. Defendant's testimony regarding the holding of a preliminary hearing was also contradictory in and of itself. Defendant did miscalculate his age, stating that he would be seventy-two within a few days, although he was born in 1888. He had been paroled 'a couple of years ago,' but for a 'very short time.'

Judge Henry J. Westhues, Judge of that Circuit at the time of the sentence, testified at some length. He stated that he 'remembered the occasion very well.' We deem it advisable to quote material portions of his testimony as follows: 'Q I'll ask you, Judge, if--whether or not at that time that you informed the defendant of his rights? A Most certainly did, because he was brought into Court and Leslie Hutchison read the Information to him and asked him how he pleaded, and he says, 'Well, I want to plead guilty.' I said, 'Just wait a minute,' I said, 'Now, you have a right to be represented by a lawyer, and have you one?' And he says, 'No, sir.' 'Have you talked to your friends about this?' He says, 'No, sir.' I said, 'Well, what are the circumstances of this crime?' So Leslie Hutchison, quite in detail, told me about it, before the defendant, how this crime was committed and how the woman suffered, terrible ordeal she went through. And I said, 'Well, have you any recommendation to make?' He said, 'I recommend thirty-five years.' I turned to the defendant there, Mr. Moreland. I said, 'Has the Prosecuting Attorney stated the facts in this case?' He says, 'Just--just about.' I said, 'Well, have you anything to add?' He says, 'No, sir.' I said to him right then and there, 'I cannot follow the recommendation of the Prosecuting Attorney and I'm not going to accept your plea of guilty today. You talk to your friend or get a lawyer to defend you, and I'm not going to give you that amount of punishment; and your punishment will either be life or death, and you think it over till tomorrow,' and had the Sheriff take him out.

'Next day he came back and I...