State v. Rose

• Decision Date: 14 April 1969
• Docket Number: No. 1,No. 53996,53996,1
• Citation: 440 S.W.2d 441
• Parties: STATE of Missouri, Respondent, v. Eddie Lee ROSE, Appellant
• Court: Missouri Supreme Court

Page 441

440 S.W.2d 441

STATE of Missouri, Respondent, v. Eddie Lee ROSE, Appellant.

No. 53996.

Supreme Court of Missouri, Division No. 1.

April 14, 1969.

John C. Danforth, Atty. Gen., B. J. Jones, Asst. Atty. Gen., Jefferson City, for respondent.

James A. Blackwell, St. Charles, for appellant.

WELBORN, Commissioner.

Appeal from denial, after hearing, of motion, under Supreme Court Rule 27.26, V.A.M.R., to set aside judgment of conviction entered on plea of guilty.

By information filed in the St. Charles County Circuit Court on May 24, 1967, Eddie Lee Rose was charged with stealing 26 automobile tires of a value of $115.00. Rose, represented by counsel of his own choice, pleaded not guilty on June 5, 1967. On December 4, 1967, represented by his attorney, Rose changed his plea to guilty. After an examination of the defendant by the court, the punishment was fixed at two years' imprisonment. Sentence was stayed until January 2, 1968, in order to allow investigation of defendant's application for parole. On January 2, a hearing was held on the application. The court denied parole. Rose was committed to the custody of the Department of Corrections.

On March 2, 1968, Rose filed a pro se motion under Rule 27.26, to set aside his conviction. The ground of relief pursued in the trial court and here was that his plea of guilty was involuntary because it was induced and coerced by his attorney, with the assurances that probation would be granted.

A hearing was held at which Rose, represented by counsel appointed for the 27.26 proceeding, testified.

Rose testified that his attorney told him after the preliminary hearing in May, 1967, he had talked to the prosecuting attorney and that that official would recommend a two-year sentence with probation if Rose would plead guilty. Rose stated that he thereafter saw his attorney every law day and on each such occasion the attorney wanted him to plead guilty so he would receive probation. Rose also testified that the attorney told him repeatedly that he could not obtain a fair trial in St. Charles County.

According to Rose, at the October, 1967 law day, the following colloquy occurred:

'Mr. Boggs told me to enter a plea of guilty--that he would guarantee me a parole--that he had made arrangements for me to receive a parole--that he had made arrangements that I would receive a parole--that he had talked to Mr. Farlow, the probation officer and to Mr. Prinster, the Prosecuting Attorney, as well as with the Judge--he had made arrangements with them that I would receive probation--that I wouldn't enter the jail--prison.

'* * * He said: A man like you with no background, with no prior record, I see no way in the world why you shouldn't make it--I guarantee you you will make it--I promise you that you will make it. He said: If you enter a plea of guilty I guarantee it--I have made arrangements--I have talked to the Judge and the Prosecutor and to Mr. Farlow.'

On the date that the plea was entered: '(O)n December 4th I sat there by the bench--right there by the bench just before being called up here--he told me again that he had made arrangements--he wanted me to enter a plea of guilty--that I wouldn't receive a fair trial--that he guaranteed me parole--he definitely promised--he said he guaranteed it.'

He stated that his attorney had told him that he had lunch with the parole officer and arranged the parole.

Rose was the only witness at the 27.26 hearing. The trial court noted that, within minutes after the completion of the 27.26 hearing, he had seen the attorney who represented Rose at the time of the plea, in the courthouse.

The trial court found, on the basis of the record at the time of entry of the plea of guilty, that the plea had been entered voluntarily.

'The Court finds that no promise had been made to defendant nor could defendant have reasonably believed he would receive any special consideration for parole for entering a plea of guilty to the charge. Certainly there was no evidence of the State making any promise to defendant. We have only the defendant's statement that his counsel made a promise which, if true, could not benefit this defendant at this hearing.

'This Court further finds that the defendant had failed in his burden of establishing his grounds for relief as required by Supreme Court Rule 27.26. Having failed to do so, this Court must conclude that his motion should be denied.'

On this appeal, the question before us is 'whether the findings, conclusions and judgment of the trial court are clearly erroneous.' Rule 27.26(j), V.A.M.R.; State v. Mountjoy, Mo.Sup., 420 S.W.2d 316, 323; Crosswhite v. State, Mo.Sup., 426 S.W.2d 67, 70--71. In this connection, we also note that the burden of establishing the grounds for relief by the preponderance of the evidence was upon the petitioner. Rule 27.26(f), V.A.M.R.

Appellant challenges the court's conclusion that, as a matter of law, promises of the defendant's counsel could not benefit the defendant. He asserts that the rule frequently expressed in opinions of this court makes the fact of misapprehension the test for determining whether or not a plea of guilty may be withdrawn. The rule has been often stated as follows: 'If the defendant should be misled or be induced to plead guilty by fraud or mistake, by misapprehension, fear, persuasion, or the holding out of hopes which prove to be false or ill founded, he should be permitted to withdraw his plea. The law favors a trial on its merits.' State v. Cochran, 332 Mo. 742, 60 S.W.2d 1, 2(5--8). See also State v. Hovis, 353 Mo. 602, 183 S.W.2d 147, 148(1, 2); State v. Williams, Mo.Sup., 361 S.W.2d 772, 775(3, 4); State v. Smith, 421 S.W.2d 501, 502.

Appellant also calls attention to the statement in State v. Dale, 282 Mo. 663, 222 S.W. 763, 764: 'It is immaterial whether the misleading was intentionally or unintentionally done. The material inquiry is: Was the defendant misled, or under a misapprehension, at the time he entered his plea of guilty?'

As appellant points out, in laying down these rules, no limitation has been made upon the source of the misapprehension or misleading. Insofar as we have found, cases in which relief has been granted in the state all have involved some activity by a representative of the state which created or contributed to the defendant's misapprehension. In State v. Hovis, 353 Mo. 602, 183 S.W.2d 147, the prosecuting attorney, in conversation with the defendant and members of his family, had held out the hope of parole. In State v. Williams, Mo.Sup., 361 S.W.2d 772, the state withdrew the habitual criminal charge. The court considered that the action could have caused the defendant, who received a death sentence on a plea of guilty, to have been misled as to the possibility of a death sentence on his plea. See also: State v. Stephens, 71 Mo. 535, 536; State v. Dale, 282 Mo. 663, 222 S.W. 763, 764; State v. Hare, 331 Mo. 707, 56 S.W.2d 141; State v. Cochran, 332 Mo. 742, 60 S.W.2d 1, 2; State v. Blatherwick, 238 Mo.App. 1005, 191 S.W.2d 1021, 1024; State v. Edmondson, Mo.Sup., 438 S.W.2d 237: State v. Smith, Mo.Sup., 421 S.W.2d 501.

We have found no case in this state which has considered the precise question here presented. We do find that in other jurisdictions the question has been considered.

In People v. Stillwell, 162 Cal.App.2d 175, 328 P.2d 21, 22(2--5), the court stated:

'Where the statement by counsel represents that a commitment was made by some responsible state official, coram nobis is not available in the absence of a showing that the representation was apparently corroborated by the acts or statements of the official.'

Other California cases to the same effect include People v. Gilbert, 25 Cal.2d 422, 154 P.2d 657, 667--668(16) (17); People v. Martinez, 88 Cal.App.2d 767, 199 P.2d 375, 378(7). These cases appear to be based upon the theory that the attorney is the agent of the accused and that the defendant cannot avail himself of even willfully false statements of factual matters by his own attorney. State v. Gilbert, supra. To a similar effect are Smith v. United States, 116 U.S.App.D.C. 404, 324 F.2d 436, 441(8); People v. King, 284 App.Div. 1015, 135 N.Y.S.2d 396, 397(1--3); People v. Bofill, 19 Misc.2d 708, 192 N.Y.S.2d 821; People v. Brim, 22 Misc.2d 335, 199 N.Y.S.2d 744, 745--746(1); Davidson v. State, 92 Idaho 104, 437 P.2d 620.

On the other hand, in Long v. State, 231 Ind. 59, 106 N.E.2d 692, the court held that an allegation in a coram nobis proceeding to the effect that a plea of guilty was induced by counsel's misrepresentation that a suspended sentence would be granted was sufficient to raise an issue of fact. 'This conduct even on the part of his own attorneys, would amount to a fraud upon appellant, which the trial court should neither allow nor countenance. It is not a sufficient base upon which to found a judgment taking away the right of liberty from a defendant charged with crime.' 106 N.E.2d 693(2).

An exhaustive study of the rules in this area is found in United States ex rel. Thurmond v. Mancusi, 275 F.Supp. 508, D.C.E.D.N.Y. In that case the court stated (275 F.Supp. 516--518):

'If, at the time he pled guilty, the defendant believed that a coercive promise or threat had been made by either the court or the prosecutor, though in fact no such promise or threat had been made, and his plea was induced by this belief, it is an involuntary and void plea. This conclusion necessarily follows from the fact that voluntariness connotes a state of mind of an actor. If the actor--i.e., the defendant--believes that a promise has been made, the effect on his state of mind is exactly the same as if such a promise had in fact been made. Thus, any test of whether a person acts voluntarily is necessarily 'subjective.'

'A guilty plea induced by a mistaken belief that a binding plea agreement had been made is invalid even if it is the defendant's own attorney who is responsible for the...