State v. Phason

• Decision Date: 10 October 1966
• Docket Number: No. 52042,No. 1,52042,1
• Citation: 406 S.W.2d 671
• Parties: STATE of Missouri, Respondent, v. Alfred PHASON, Appellant
• Court: Missouri Supreme Court

Page 671

406 S.W.2d 671

STATE of Missouri, Respondent, v. Alfred PHASON, Appellant.

No. 52042.

Supreme Court of Missouri, Division No. 1.

Oct. 10, 1966.

David R. Spitznagel, St. Louis, for appellant.

Norman H. Anderson, Atty., Gen., O. Hampton Stevens, Asst. Atty. Gen., Jefferson City, for respondent.

HENLEY, Judge.

Defendant was charged by indictment with rape of a female child under the age of sixteen years (Section 559.260) ¹ and with ten prior felony convictions. Section 556.280. A jury found him guilty, the trial judge determined that he had been convicted of prior felonies as charged, and he was sentenced by the court to imprisonment in the custody of the Department of Corrections for a term of twenty-five years.

Immediately after the jury returned its verdict and was discharged, the court assessed defendant's punishment at imprisonment for fifty years. Thereafter, defendant timely filed his motion for new trial alleging, in substance, that the court erred: (1) In overruling his motion for judgment of acquittal at the close of the state's opening statement; (2) In overruling defendant's objections to leading questions propounded by state's counsel to the prosecutrix; and, (3) In overruling his motions for judgment of acquittal at the close of the state's case and at the close of the whole case. Less than a week later defendant withdrew his motion for new trial, waived his right to appeal, and was sentenced, as stated, to imprisonment for twenty-five years. He was represented throughout the trial, from arraignment through these post-trial proceedings, by counsel appointed by the court.

Some nine months later, on March 14, 1966, he secured a special order from this court permitting him to file his notice of appeal out of time without payment of the docket fee, and he thereafter filed his notice of appeal in the trial court. Rule 28.07. ² Counsel appointed by the trial court pursuant to Rule 29.01(a) has briefed the case and presented oral argument to this court in defendant's behalf, and subsequent to oral argument has, with leave, filed a reply brief. We quote the five points relied on in his briefs: '1. Appellant was deprived effective assistance of counsel for his defense and the compulsory process of obtaining witnesses in his own behalf. 2. The Trial Court erred in refusing the motion for acquittal at the close of the State's case, and again at the close of all evidence. Said evidence in light of the admitted facts in the record was insufficient to establish a prima facie case of statutory rape. 3. The Trial Court erred in granting allocution at the close of the trial, thereby denying defendant his right to file a motion for a new trial. 4. The Trial Court erred and abused its discretion in accepting the plea of guilty after conviction and sentencing, without allocution, in that it was not freely and voluntarily made. 5. The Trial Court erred in coercing the withdrawal of defendant's Motion for a New Trial and the waiver of the Right of Appeal.'

We quote from the transcript the proceedings had on June 23, 1965, the day defendant filed a memorandum by which he withdrew his motion for new trial and waived right of appeal:

"Motion for new trial heretofore filed withdrawn and right to appeal waived.

/s/ F. G. Armstrong

Attorney for Defendant.

/s/ Alfred Phason.'

FILED: June 23, 1965.

APPEARANCES:

Michael M. Flavin, Assistant Circuit Attorney, for plaintiff;

Fred G. Armstrong, Esq., for defendant; Defendant appeared in person.

THE COURT: You are Alfred Phason? A. Yes, sir.

THE COURT: All right, sir. Are you going to withdraw his former plea of not guilty and enter a plea of guilty, is that correct?

MR. ARMSTRONG: Yes, for the record, at this time, and in accordance with out conference in the chambers, the defendant withdraws his motion for a new trial and asks for sentencing at this time.

THE COURT: You waive the right to appeal?

MR. ARMSTRONG: Yes, and does waive his right to appeal.

THE COURT: Is there anything the defendant wants to say before sentence is imposed or any legal reason why sentence should not be pronounced, Mr. Phason?

THE DEFENDANT: No.

THE COURT: In Cause number 942--N, at the direction of the jury, and with your prior convictions, the Court hereby finds you guilty. In accordance with the verdict of the finding of the jury, finding you guilty as charged, the Court hereby having found you had prior convictions of felonies, the Court commits you to the Department of Corrections for a period of twenty-five (25) years. I will allow him whatever jail time he has. Take charge of the prisoner.'

In this case we are faced with somewhat the same situation the court was faced with in State v. Johnson, Mo., 408 S.W.2d 24, also handed down this day, except that here a motion for new trial was filed and there is a contention in point five of defendant's brief that withdrawal of his motion for new trial and waiver of his right to appeal was the result of coercion. Also, we consider his point four to be a contention that this withdrawal and waiver was not freely and voluntarily made.

A defendant has the right voluntarily to withdraw his motion for new trial and waive his right to appeal. See: State v. Harmon, Mo., 243 S.W.2d 326, 328(2), and cases there cited. Defendant asserts in his argument that immediately after the jury returned its verdict and before he filed his motion for new trial the court entered judgment imposing a sentence of fifty years' imprisonment; that the sentence was reduced to twenty-five years after a conference in the judge's chambers in which it was agreed that he...