State v. Smith

• Decision Date: 11 December 1967
• Docket Number: No. 2,No. 52278,52278,2
• Citation: 421 S.W.2d 501
• Parties: STATE of Missouri, Respondent, v. Dee Mitchell SMITH, Appellant
• Court: Missouri Supreme Court

Page 501

421 S.W.2d 501

STATE of Missouri, Respondent, v. Dee Mitchell SMITH, Appellant.

No. 52278.

Supreme Court of Missouri, Division No. 2.

Dec. 11, 1967.

Norman H. Anderson, Atty. Gen., Jefferson City, J. L. Anding, Sp. Asst. Atty. Gen., Pacific, for respondent.

Charles Powell, Jr., Macon, for appellant.

DONNELLY, Judge.

An information filed in the Circuit Court of Macon County on December 13, 1965, charged defendant, Dee Mitchell Smith with statutory rape. Section 559.260, RSMo 1959, V.A.M.S. On February 16, 1966, defendant appeared with his attorney, Charles A. Powell, Jr., entered a plea of guilty to the charge, was sentenced to imprisonment for two years, applied for and was denied parole, and then sought to withdraw the plea of guilty.

In State v. Williams, Mo.Sup., 361 S.W.2d 772, at 775, this Court stated: 'We have said: 'The guiding rules are that a plea of guilty is but a confession in open court. Like a confession out of court it should be received with caution. It should never be received unless it is freely and voluntarily made. 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; see also State v. Hare, 331 Mo. 707, 56 S.W.2d 141; State v. Harris, 336 Mo. 737, 81 S.W.2d 319; State v. Hovis, 353 Mo. 602, 183 S.W.2d 147; State v. Blatherwick, 238 Mo.App. 1005, 191 S.W.2d 1021. A leading Missouri case is State v. Stephens, 71 Mo. 535, 536, in which it is said: 'Courts have always been accustomed to exercise a great degree of care in receiving pleas of guilty, in prosecutions for felonies, to see that the prisoner has not made his plea by being misled, or under misapprehension or the like.' Thereafter in State v. Dale, 282 Mo. 663, 669, 222 S.W. 763, 764, this Court said: '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?"'

The record shows the following occurred on February 16, 1966: 'State appears by Assistant Prosecuting Attorney, Defendant appears in person, in custody and by attorney, waives formal arraignment and enters plea of guilty to the charge of statutory rape as laid in the Information. ALLOCUTION being duly granted said defendant it is the judgment, order and sentence of the Court that in conformity with defendant's plea of guilty to the charge of statutory rape as laid in the information, Dee Mitchell Smith be conveyed to the State Penitentiary at Jefferson City, Missouri and there be confined for a period of two years under the supervision of the Department of Correction unless sooner released by lawful authority. Said defendant to be given credit on aforesaid sentence for all time spent in jail and other custody of the State. Sheriff allowed expense of one guard in transporting prisoner. Application of defendant for parole presented, duly signed by defendant and Assistant Prosecuting Attorney and by the Court denied. Oral application of defendant, by counsel, for leave to withdraw plea of guilty is considered by the Court and denied. Leave granted defendant to file written application to withdraw plea not later than twenty-four hours from this date or until 4 o'clock p.m. February 17, 1966. Defendant remanded to the custody of the Sheriff and Sheriff directed not to transport prisoner until determination of defendant's written motion to withdraw plea of guilty.'

The transcript made at the time the plea was taken reads as follows:

'THE COURT: The defendant has waived formal arraignment. Do you wish the matter set down for trial or what plea do you want to enter?

'MR. POWELL: We plead guilty, your Honor.

'THE COURT: All righty. Mr. Prosecutor, will you make a brief statement?

'MR. FOLEY: Yes, Judge.

'(The prosecutor makes a statement to the court.)

'(After the statement by the prosecutor the following proceedings were had:)

'THE COURT: At this time we'll take a recess.

'(After a recess, the court resumed and the following proceedings were had:)

'THE COURT: Gentlemen, is there anything further to be said in this case?

'MR. FOLEY: No, your Honor.

'THE COURT: What about you, Mr. Powell?

'MR. POWELL: I don't believe so.

'THE COURT: All right. Mr. Smith, you may stand. In conformity with your plea of guilty to the charge of statutory rape as relayed in the Information, it is the judgment, order and sentence of the court that you be confined to the state penitentiary at Jefferson City, Missouri and there be confined for a period of two years under the supervision of the Department of Corrections unless sooner released by lawful authority. The court will allow you credit on this sentence for the time that you spent in jail. You may be seated.

'MR. POWELL: You want to entertain our application for parole at this time?

'THE COURT: I never have refused to entertain one. If you want to make one, you may do so.

'The court has read the application for parole. Do you wish to be heard, Mr. Powell, on the application?

'(Comments were made by counsel for the defendant.)

'THE COURT: I think you said he didn't have any * * * Mr. Smith, your counsel is in my opinion undoubtedly extremely sincere in what he said to me in your behalf. Mr. Foley, assistant prosecuting attorney, has indicated that he approves your application for a parole. Being human, I would rather say yes than no, but it's my understanding that medically speaking, anyhow, there is no abnormality in you that is excused for the offense you committed. It was repeated and repeated and repeated. And I find myself unable to approve this application for parole. It will be denied. I remand you to the custody of the sheriff for transportation down to Jefferson City whenever it's convenient. Now I will allow you all credit for time you have spent in jail which should include the time you spent at Fulton.'

On February...