Tygart v. State, s. 15241

• Decision Date: 25 April 1988
• Docket Number: 15282,Nos. 15241,s. 15241
• Citation: 752 S.W.2d 362
• Parties: David TYGART, Movant-Respondent, v. STATE of Missouri, Appellant. David TYGART, Movant-Cross-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 362

752 S.W.2d 362

David TYGART, Movant-Respondent, v. STATE of Missouri, Appellant.

David TYGART, Movant-Cross-Appellant, v. STATE of Missouri, Respondent.

Nos. 15241, 15282.

Missouri Court of Appeals,

Southern District,

Division Two.

April 25, 1988.

Motion for Rehearing or to Transfer

Denied and Overruled May 17, 1988.

Jon Van Arkel, Asst. Public Defender, Springfield, for movant-respondent and movant-cross-appellant.

William L. Webster, Atty. Gen., Karen A. King, Asst. Atty. Gen., Jefferson City, for appellant and respondent.

MAUS, Judge.

By his motion under Rule 27.26, the movant, David Tygart, seeks to set aside his sentence and withdraw his plea of guilty to a charge of first degree murder. § 565.020. His motion alleged four grounds why that relief should be granted. Following an evidentiary hearing, the motion court found against movant on two allegations. But, under the third and fourth allegations, it set aside the sentence and directed the trial court to hold a hearing on the movant's request to withdraw his plea of guilty with leave to the movant to present evidence. The state appeals from that judgment. The movant appeals from the adverse determination upon two of the four allegations.

Procedurally and factually this case is unusual. In particular it presents questions of procedure that have not been answered by the appellate courts. Counsel presented the case in the motion court in such a manner as to totally obfuscate those issues. The suggestions filed by movant's counsel included a misconception of the law as well as a misleading statement of the facts. The motion court was not aided by the failure of the state to file counter-suggestions. This made it virtually impossible for the motion court to define and resolve those issues.

The following is the general background of the case. The movant was charged with having committed first degree (capital) murder in violation of § 565.020.1 by shooting Don Tracy on September 7, 1985. Movant was represented by experienced, able and aggressive defense counsel. On March 26, 1986, movant signed a petition to withdraw his prior plea of not guilty and enter a plea of guilty pursuant to a plea bargain. The plea bargain was that the state would not seek the death penalty.

On March 31, 1986, the petition was presented to the Circuit Court of Jasper County. The movant appeared in person and by his retained counsel. The state appeared by the prosecuting attorney. The trial court conducted a lengthy hearing upon that petition. At the conclusion of the hearing the trial court made detailed findings and accepted the plea of guilty. Even though the only alternative punishment was imprisonment for life without eligibility for probation or parole or release, except by act of the governor, § 565.020.2, the trial court acceded to the movant's request for a presentence investigation. It set sentencing for May 27, 1986.

For a reason and in a manner not disclosed by the record, the trial court advanced sentencing to April 14, 1986. A presentence report had been filed. The defendant and his retained counsel appeared without objection. The state appeared by the prosecuting attorney. Movant and his counsel acknowledged the receipt of a copy of the report a few days prior to the hearing. The movant said the statement in the report that "David Tygart does maintain that he only shot Tracy twice" was a misquotation. He said he stated he "was responsible for the shooting" but that he only shot him once.

When asked if there was anything else, movant said he did not agree there was deliberation and premeditation. In a colloquy with the court, the movant said he was not asking for a jury trial. He added, "I'm asking that if the Court could hear the matter of deliberation and premeditation alone, on those points, the Court could hear, not a jury trial, but a Court trial, if it's possible, as I don't know, on those points alone." The court replied that such a hearing would be impossible, but that the court would treat his request as a motion to withdraw the plea of guilty. There was an extended hearing in which the movant, his counsel and the prosecuting attorney participated. The hearing was recessed for counsel to read the transcript of the acceptance of the plea. The court also read portions of that transcript. Following a recess of approximately two hours, the hearing was resumed. Relevant portions of the hearing will be hereafter noted. At the conclusion of the hearing, the court denied the motion to withdraw and sentenced movant in accordance with the plea bargain. No appeal was taken.

At the outset this court must take cognizance of the state's contention that a motion under Rule 27.26 may not be used to review the denial of a motion to withdraw a plea of guilty. That contention is based upon the proposition that such a motion may not be used as a substitute for a direct appeal. It cites cases such as State v. O'Neal, 626 S.W.2d 693 (Mo.App.1981); King v. State, 615 S.W.2d 69 (Mo.App.1980).

In general, the contention of the state has merit. A defendant may appeal from the sentence and judgment entered upon a guilty plea. State v. LaDriere, 299 S.W.2d 512 (Mo. banc 1957). However, the scope of review on such an appeal is "restricted to the question of the jurisdiction of the subject matter and the sufficiency of the criminal charge." State v. LePage, 536 S.W.2d 834, 835 (Mo.App.1976). Also see State v. O'Neal, supra. Other errors cognizable under Rule 27.26 are not subject to review on such an appeal. They may be reviewed in a collateral attack under that rule.

But, when a defendant has timely filed a motion to withdraw a guilty plea, the action of the trial court in denying that motion is subject to review upon appeal. King v. State, supra. The scope of review on such an appeal is, as hereafter stated, broader and includes the issue of whether or not the trial court abused its discretion in denying such withdrawal. If such an appeal is taken and determined adversely to a defendant, it is clear a motion under Rule 27.26 could not be used to gain further review of issues cognizable on appeal. Hulsey v. State, 631 S.W.2d 368 (Mo.App.1982). Basically, the same rule is applicable when no appeal is taken and the decision of the trial court has become final.

However, it has been held that an error that could have been raised on appeal, in rare and exceptional circumstances, when the same is required by fundamental fairness, may be presented by a motion under Rule 27.26. Brown v. State, 729 S.W.2d 54 (Mo.App.1987); Covington v. State, 600 S.W.2d 186 (Mo.App.1980); McCrary v. State, 529 S.W.2d 467 (Mo.App.1975). Because of the circumstances of this case, including the allegations of the motion and findings of the motion court, this court will review the appeals upon their merits.

The appeal by the state will be considered first. An underlying argument of the state is that the relief of setting aside the plea and sentence to permit movant to introduce additional evidence is unauthorized. It contends this is true even if the propriety of the trial court's action in denying the withdrawal is to be reviewed in this proceeding under Rule 27.26. The state is correct. If the record in the motion court, which includes the record in the trial court, does not establish the trial court erred in denying the motion to withdraw, there is no basis to set aside the sentence and judgment. They cannot be set aside to permit the movant to have a second opportunity to establish error. Further, even if, as he alleged, movant had been improperly denied the right of appeal, the remedy is not to vacate the sentence for a further hearing. It is to vacate the sentence and resentence the defendant permitting an appeal from the date of the new sentence. Green v. State, 451 S.W.2d 82 (Mo.1970). The appeals will be determined upon the record before this court.

The motion court found the movant presented four grounds for relief. That determination is supported by the record. Those grounds are as follows:

1. That no factual basis existed for the court's determination that 'deliberation' was present.

2. That Movant's plea of guilty was not made knowingly and voluntarily for the reason that Movant was suffering from a mental disease or defect and was under medication at the time of his plea, which prevented Movant from understanding the proceedings and the consequences of pleading guilty.

3. That Movant's plea of guilty was not made knowingly for the reason that Movant did not understand the charge and was unable to determine for himself that he deliberated and he would not have plead [sic] guilty had he understood the meaning of deliberation on March 31, 1986.

4. That Movant was denied his rights to due process and to a meaningful appeal by the acts and actions of the trial court.

As stated, the motion court found against the movant on grounds (1) and (2). It made no express finding upon ground (3). It found for the movant upon ground (4). While the issue was not pleaded, the conclusions of law also included a finding the movant was misled by the trial court into thinking that he could withdraw his guilty plea anytime before sentence was imposed.

The state contends the motion court erred because the evidence established the guilty plea was knowingly and voluntarily entered and the trial court did not abuse its discretion in denying the motion to withdraw. The movant contends that his plea was not voluntary because he did not understand the charge and could not determine that he deliberated and would not have pled guilty had he understood the meaning of deliberation.

Rule 29.07(d) provides: "A motion to withdraw a plea of guilty may be made only before sentence is imposed or when imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea."

The standards for review...