State v. Tyler
| Decision Date | 14 April 1969 |
| Docket Number | No. 53682,53682 |
| Citation | 440 S.W.2d 470 |
| Parties | STATE of Missouri, Respondent, v. Billy Joe TYLER, Appellant. |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., L. Michael Lorch, Asst. Atty. Gen., Jefferson City, for respondent.
Daniel J. Sullivan, James W. Herron, St. Louis, for appellant.
On March 15, 1965, with his employed counsel present, Billy Joe Tyler pleaded guilty to four separate offenses as follows: (1) robbery first degree by means of a dangerous and deadly weapon (Case No. 1843--M); (2) assault with intent to kill with malice, and two prior convictions of a felony (Case No. 1019--M); (3) assault with intent to kill with malice (Case No. 1842--M); and (4) carrying a concealed weapon (Case No. 1844--M). He was sentenced to twenty years' imprisonment on each of the first three charges, and to two years' imprisonment on the fourth charge, all to run concurrently. He has filed a motion pursuant to S.Ct. Rules 27.25 and 27.26, V.A.M.R., to withdraw the plea of guilty and set aside the judgment as to each charge, but on this appeal he has abandoned the motion as to Case No. 1844--M (carrying a concealed weapon) because, as he states in his brief, he has 'completed that sentence.' The trial court held an evidentiary hearing and subsequently overruled the motion. Tyler has duly appealed.
This appeal was originally heard in Division II and the case was subsequently transferred to Court en Banc. Portions of an opinion prepared in Division (which was not adopted) are included herein without the use of quotation marks.
Defendant alleged in his motion that he was 'coerced into entering a guilty plea' as to each offense because his trial counsel was not prepared to go to trial on three of the four charges, but the trial judge refused to grant a continuance and ordered immediate trial of all four cases. He further alleged that the trial judge stated to defendant that if he stood trial and was found guilty he would be sentenced to fifty years in prison and that, 'faced with the prospect of attempting to establish his innocence in a trial for which his counsel was unprepared, and faced with the prospect of a fifty-year sentence if he did not succeed,' he entered the pleas of guilty.
Immediately prior to the entry of the pleas of guilty a conference between the judge, the assistant circuit attorney, defense counsel, and the defendant was held in the judge's chambers. No record was made of that conference or of the proceeding in the courtroom at the time the pleas of guilty were entered by defendant and accepted by the court, or if there was such a record it was not offered in evidence by either the defendant or by the state. Therefore, there is no record before us, made at the time the pleas of guilty were entered, which purports to show that before accepting the pleas of guilty the court determined that they were made voluntarily with understanding of the nature of the charges. See S.Ct. Rule 25.04, V.A.M.R.; State v. Blaylock, Mo., 394 S.W.2d 364; State v. Arnold, Mo., 419 S.W.2d 59. However, as stated in State v. Mountjoy, Mo., 420 S.W.2d 316, 323, 'a subsequent disclosure that the record does not demonstrate a substantial compliance with Rule 25.04 at the time the plea was accepted does not necessarily require, upon application by defendant, that the plea of guilty be set aside.' It was pointed out that by reason of S.Ct. Rule 27.25 a defendant may not withdraw his plea of guilty as a matter of right, State v. Skaggs, Mo., 248 S.W.2d 635, but the procedure is appropriate after sentence only to correct manifest injustice. State v. Parker, Mo., 413 S.W.2d 489. It was further held in the Mountjoy case that in a hearing on a motion to withdraw a plea of guilty after sentence the defendant has the burden to prove by a preponderance of the evidence the facts alleged in his motion which demonstrate that manifest injustice resulted from the acceptance of his plea of guilty.
At the hearing on the motion Clement Kieffer, the attorney for Tyler on the date his cases were disposed of, testified that on March 15, 1965, he was prepared to try the assault case, No. 1019--M; that this was the only case in which he had actually been employed and that he understood that Hale Brown had been employed to try the other three cases; that he sought a continuance in Division One but his request was denied and all four cases were assigned for trial in the Division over which Judge Nangle presided; that he was not prepared for trial in three of the cases; that Judge Nangle also denied a request for a continuance; that he then had a conference with Judge Nangle as to what sentence Tyler would receive if he entered a plea of guilty and was told that the sentence would be 20 years' imprisonment; that he then called the defendant into the judge's chambers and the judge stated that defendant would receive 20 years if he entered a plea of guilty, but that he would sentence him to 50 years if he were tried and found guilty; that he had a conference with his client and recommended that he not plead guilty but Tyler stated that he was 'afraid to turn it down--50 years was too long.' Mr. Kieffer also testified that he explained to defendant that it looked like he was going to be forced to trial in one of the three cases in which he was unprepared.
On cross-examination of Mr. Kieffer it was brought out that he had entered his appearance in the three 'new cases' more than two months before the date in question and that Mr. Brown had never entered his appearance as an attorney in those cases.
Defendant testified that he was taken into the judge's chambers and that his attorney, Judge Nangle, the prosecutor, and the sheriff were there; that the judge said that 'if I did not take the 20-year sentence I would get 50 years on each charge,' which he understood to mean a total of 150 years on three of the charges with two years for carrying a concealed weapon; that he understood that Mr. Kieffer was to defend him in the assault case only, and that he had been told that Mr. Brown was to defend him in the other three cases; that he had never conferred with Mr. Brown. When asked his reaction to this conference he stated:
The testimony of defendant's mother tended to support the testimony of defendant and Mr. Kieffer, although there was some evidence to indicate that she was never in the judge's chambers.
The Clerk of the Division testified that Case No. 1843--M had been sent to the Division for trial on March 15, 1965, and that after a discusion in the judge's chambers the court had sent him for the other three cases. He testified that the record indicated that all four cases had not been sent out for trial.
Michael O'Keefe, an assistant circuit attorney who had been assigned to handle the cases against Tyler, testified that he had discussed these cases with Mr. Kieffer prior to the trial date, and had told him the State would recommend life imprisonment on the three cases in which that sentence was authorized and the maximum on the concealed weapon charge, the sentences to run concurrently; that on March 15 he was in Judge Nangle's chambers during the conferences relating to the Tyler cases; that he was asked what the State's recommendation would be and he stated that it was life imprisonment; that the court stated that if Tyler pleaded guilty he would be given 20 years; that Tyler and his attorney left, the Clerk went over and got the other cases, and defendant was then brought into the courtroom and pleaded guilty. This witness also testified that he did not remember hearing the words 'fifty years' spoken in the judge's chambers.
The judge who presided at the hearing on the motion to withdraw the pleas of guilty was the judge who accepted defendant's pleas of guilty. The judge did not testify at the hearing on the motion but made several comments pertaining to what he said to defendant and his counsel, which in substance tended to disagree with the testimony on behalf of defendant, or at least indicated that the judge's recollection as to what was said and what occurred at the conference in his chambers was different from that indicated by defendant's evidence. While the judge did not make a complete or explicit statement as to what was said by him in his chambers, de...
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George v State
...judge and the judge did not actually take the stand as a witness and, therefore, did not testify. See id. at 414 (citing State v. Tyler, 440 S.W.2d 470 (Mo. 1969). The Eighth Circuit reversed the decision of the state court, finding that the judge testified even though he was not formally c......
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Tyler v. Swenson
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