State v. Pickel, 50303

• Decision Date: 09 March 1964
• Docket Number: No. 1,No. 50303,50303,1
• Citation: 376 S.W.2d 181
• Parties: STATE of Missouri, Respondent, v. Robert PICKEL and Lewis Proffit, Appellants
• Court: Missouri Supreme Court

Page 181

376 S.W.2d 181

STATE of Missouri, Respondent, v. Robert PICKEL and Lewis Proffit, Appellants.

No. 50303.

Supreme Court of Missouri, Division No. 1.

March 9, 1964.

Thomas F. Eagleton, Atty. Gen., Louis C. DeFeo, Jr., Asst. Atty. Gen., Jefferson City, for respondent.

No attorney for appellant.

HOLLINGSWORTH, Presiding Judge.

Defendants, imprisoned in the state penitentiary under sentences imposed in the Circuit Court of Jasper County, Missouri, following their pleas of guilty to three allegedly jointly committed felonies, seek by motion filed under the provisions of S.Ct. Rule 27.26, V.A.M.R., to vacate and set aside the sentences thus imposed. Upon examination of the motion to vacate and set aside said sentences and the files and records in said cases, the trial court denied said motion without hearing, from which order defendants have appealed. Jurisdiction of said appeal is vested in this court. S.Ct. Rules 27.26 and 28.03.

The transcripts (one in each of the six cases) herein filed on appeal show that on the 4th day of January, 1960, the trial court appointed counsel for each of the defendants and that on said date they were formally arraigned and each entered pleas of guilty to the following crimes:

(1) burglary of the dwelling house of Guy Waring and Georgia Waring in Jasper County on or about the 19th day of November, 1959, and the stealing therefrom of personalty owned by said Warings of the aggregate value of $2,000;

(2) burglary of the office building of one C. J. Bulger in Jasper County on or about the 23rd day of November, 1959, and the stealing therefrom of personalty owned by said Bulger of the aggregate value of $64.60; and

(3) stealing from C. J. Bulger in Jasper County on or about the 23rd day of November, 1959, a 1953 Plymouth automobile of the value of $495.

Sentencing of each defendant was deferred until January 18, 1960. On that date defendant Pickel appeared in person and with his court-appointed attorney, Mr. Jack Burress, and defendant Proffit appeared in person and with his court-appointed attorney, Mr. Dalton DeShazer. Each defendant was granted allocution and each was sentenced to imprisonment for a term of four years for burglary and four years for stealing in the Waring case, to run consecutively, and to be reduced by 54 days for the time spent by each defendant in jail prior to sentence. Each was further sentenced to imprisonment in the penitentiary for a term of four years for burglary and four years for stealing in the Bulger office building case, each four-year sentence to run consecutively and to commence at the expiration of the sentence imposed upon each defendant in the Waring case. Each was also sentenced for the stealing of Bulger's Plymouth automobile to imprisonment for a term of five years, said sentence to run concurrently with the sentences consecutively imposed upon him in the Bulger burglary and stealing case.

The motion to vacate and set aside these sentences is based primarily upon the following three contentions:

(1) That certain armed policemen of Oklahoma City, Oklahoma, on the night of November 25, 1959, without any warrant for the arrest of defendants, forcibly entered a home in said city in which defendants were sleeping and forcibly and unlawfully arrested defendants and unlawfully searched said home and seized personalty therein for use in evidence against defendants, in violation of the Fourth and Fourteenth Amendments to the Constitution of the United States and Article I, Sec. 15, of the Constitution of Missouri, V.A.M.S.; and that in fact no warrant was issued for the arrest of defendants or either of them until December 29, 1959.

(2) That defendants were denied the benefit of counsel in their preliminary hearing and arraignment, in violation of the Sixth and Fourteenth Amendments to the Constitution of the United States and Article I, Sec. 18(a), of the Constitution of Missouri.

(3) That the pleas of guilty entered by defendants were obtained by coercion, in violation of the Fourteenth Amendment to the Constitution of the United States.

The motion further alleges that following arrest without warrant by the Oklahoma police officers defendants were taken to an Oklahoma jail and there informed that they were wanted by the sheriff's office in Joplin, Missouri, on a charge of burglary, the commission of which defendants denied and that they then and there waived extradition to Joplin, Missouri, 'so as to prove their innocence.' The motion further alleges that even though the court did appoint counsel to represent them on the day of their arraignment, January 4, 1960, defendants nevertheless were not allowed to consult with counsel except for approximately ten minutes just before the court pronounced sentence and judgment on January 18, 1960.

Certain duly certified 'Supplemental Transcript(s) on Appeal', filed in this court on January 14, 1964, contain a joint affidavit of defendants in which they (quoting verbatim) state:

'On or about the 30th day of November 1959 affiants were prisoners of the ...