State v. Mountjoy
| Decision Date | 13 November 1967 |
| Docket Number | No. 2,No. 52576,52576,2 |
| Citation | 420 S.W.2d 316 |
| Parties | STATE of Missouri, Respondent, v. Robert Clifton MOUNTJOY, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Paul N. Chitwood, Asst. Atty. Gen., Jefferson City, for respondent.
Robert G. Duncan, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.
STOCKARD, Commissioner.
Defendant has appealed from an order of the circuit court, entered after an evidentiary hearing, overruling his motion pursuant to Criminal Rules 27.25 and 27.26, V.A.M.R., to set aside his plea of guilty to the charege of robbery in the first degree.
At the hearing on the motion a transcript of the proceedings at the time the plea of guilty was entered was offered and received in evidence, and it is necessary that we relate what occurred at that time.
Defendant was represented by able counsel experienced in criminal trial work who had been employed by his mother. His trial started on November 1, 1961, and after the jury had been selected but before it was sworn, defendant and his counsel appeared before the trial judge in chambers. Counsel stated that he wanted to 'make a record,' and he then advised the court that he had conferred with defendant and had advised him of his rights and the penalties attendant to a conviction of the offense charged, and that he had 'advised him to enter a plea of guilty.' He further stated: Counsel then added that he was greatly handicapped in representing properly the defendant because he 'has not and apparently will not communicate to counsel what his defense is to this case,' that he 'has refused to read a copy of his purported confession which was furnished to us by the counsel for the state,' and that while he has indicated that he desires to take the witness stand in his own behalf he 'will not communicate to counsel what testimony if any he intends to give.' Counsel then advised the court that 'in the defendant's best interests' he intended to call as witnesses defendant's mother and other members of his family 'to mitigate and minimize some of the testimony on behalf of the State,' but that defendant does not desire this to be done, and has instructed counsel not to call those persons as witnesses, and has indicated that if counsel violates his wishes he intends to create a disturbance by 'shouting and throwing a chair into the jury box.' To this the defendant replied: In answer to some comments by the court, defendant further stated: 'He (his counsel) is not defending me in court anywhere,' and Counsel then stated that although defendant had previously announced that he desired his present counsel to defend him, he now claimed to have another lawyer who is to try the case, but he has not disclosed the name of that lawyer and his mother has advised counsel that there is no such person. Counsel then stated that if defendant did not desire him to act as his attorney he requested permission to withdraw from the case. The court stated that it would not permit counsel to withdraw at that stage of the proceedings. Counsel stated to the court that he had advised the defendant the best that he could, and that 'it is my feeling now that the only defense which he has consists in presenting witnesses * * * from his family, and that I do intend to call them.'
After the court commented on the reputation, capabilities and experience of defendant's counsel, defendant replied: The court then advised defendant that the purpose of the trial was to find out whether he was or was not guilty, and that he would receive a fair trial. After admonishing defendant that if he initiated any disturbances in the courtroom he would be held in contempt of court, the trial court directed that the parties proceed with the trial.
Thereafter in the courtroom, but out of the hearing of the jury panel, counsel for defendant advised the court that he had 'just been advised that at this time the defendant wishes to withdraw his plea of not guilty to this charge and enter a plea of guilty.' The record then shows the following:
'The Court: Is that true, Mr. Mountjoy?
Mr. Robert Clifton Mountjoy: Yes.
'The Court: You realize of course that you are entitled to a jury trial.
'Mr. Mountjoy: Yes.
'The Court: And if found guilty by a jury the punishment imposed might be more or less or the same that this Court might impose, you understand that?
'Mr. Mountjoy: Yes.
'The Court: You are asking that I accept your plea of guilty because you are guilty, is that correct?
'Mr. Mountjoy: Yes.
'Mr. Lawrence F. Gepford: May I withhold my recommendation, Your Honor, at this time?
On the appointed date defendant and his counsel appeared before the court for sentencing. At that time the court stated that it had received and studied the presentence investigation report and the files of the prosecuting attorney on which the pending and other charges against defendant were based. The court stated that it was 'very difficult' for it to impose the sentence that it had concluded 'must be imposed,' and it then announced the sentence to be imprisonment for a term of fifteen years. The defendant then stated: 'Your Honor, Mr. Schrader (defense counsel) and the Prosecutor says on my plea of guilty I pleaded guilty to five years.' The court replied as follows: The prosecuting attorney then announced that it was dismissing a separate and different charge against defendant of assault with intent to rob with malice aforethought, 'for the reason that the State is unable to make a case, the witnesses are dead.'
On August 19, 1966, almost five years after he entered his plea of guilty, defendant filed a motion in the trial court pursuant to Criminal Rule 27.25 to set aside the judgment of conviction and permit him to withdraw his plea of guilty. He alleged in the motion that (1) he entered the plea of guilty 'because of fraud and collusion, (mis?)-apprehension and lack of representation of petitioner's counsel;' (2) there was 'collusion and agreements between counsel for defendant and counsel for the State;' (3) he was 'under constant duress and was led to believe by counsel for the State as well as counsel for defendant that if he would enter a plea of guilty, because of his youth and because he had no prior felony record, he would receive only five years;' (4) he was 'led to believe by his counsel that he had no defense, and that there were no mitigating circumstance when in fact there were, and petitioner-defendant did have have a good defense;' (5) that he was 'reluctant to plead guilty, but finally did so at the urging of counsel for the state and counsel for defendant with the understanding, 'or because of the understanding' that he would receive only five years imprisonment;' and (6) the court knew that 'it was not the wishes of defendant to enter such a plea to this crime, and yet upon the plea of guilty, failed to question defendant to see whether there was fraud involved or whether or not counsel for the State had made any promises of a light sentence to the defendant.'
The transcript shows that two representatives of the Defender Society of Greater Kansas City were appointed to represent defendant at the hearing on the motion, but with no further order on this matter, at the hearing defendant was represented by different counsel, apparently of his own selection.
In his testimony defendant attempted to emphasize, as he stated it, that he 'didn't know nothing about court proceedings,' that at the time of his plea he was only eighteen years of age, and that prior to trial his counsel repeatedly advised him to plead guilty. Defendant had a separate and different charge pending against him, apparently the one which was dismissed immediately after sentencing, and the facts giving rise to this separate charge were that defendant and the then husbands of his two sisters (at the time of the hearing on the motion both had been divorced) had assaulted a blind man and robbed him of a check and had taken his hearing aid. Defendant testified that his counsel had told him that he 'was involved with robbing a blind man and if I did it, they would give me fifty years.' He also testified that his counsel told him that he 'had to plead guilty, that he was going to put my mother and sisters on the stand and tell the jury that I was guilty,' and that if defendant would not let his mother 'get on the stand and tell the jury that (he) was guilty that he (counsel) did not want to try the case in Court.' The purpose of this, according to the defendant, was that his counsel 'figured if my people got on the stand and told the jury I was guilty that they would give me less time than what the judge would,' and that this would be 'sympathy strategy.'
After the conference...
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