UNITED STATES EX REL. DEAN v. Wyrick, 76-526C(2).
| Decision Date | 19 November 1976 |
| Docket Number | No. 76-526C(2).,76-526C(2). |
| Citation | 426 F. Supp. 1195 |
| Parties | UNITED STATES of America ex rel. Kevin DEAN, Petitioner, v. Donald WYRICK, Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
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Kevin Dean, pro se, for petitioner.
Timothy J. Verhagen, Asst. Atty. Gen., Jefferson City, Mo., for respondent.
This is a pro se proceeding by a prisoner of the State of Missouri seeking habeas corpus relief. Petitioner was charged, jointly with Charles and Horace Bonner, with two first degree murders, forcible rape and assault with intent to kill in the Circuit Court of the City of St. Louis.
On October 9, 1973, after plea bargaining with the prosecutor, each defendant separately entered pleas of guilty to the two murder counts (reduced for purpose of the bargaining to murder in the second degree), as well as to the rape and assault charges. Each defendant was sentenced to three concurrent terms of 35 years imprisonment on the murder and assault charges and to a consecutive term of 5 years imprisonment on the rape charge.
As had been predicted by Judge Lackland Bloom, the sentencing judge, at the time the guilty pleas were entered,1 each defendant promptly filed motions under Missouri Supreme Court Rule 27.26 for post-conviction relief asserting that the guilty pleas were involuntary. The sentencing judge was disqualified2 and a full evidentiary hearing was held on all three motions before another circuit judge, Judge Daniel Tillman.3 Extensive findings of fact and conclusions of law were made in conjunction with the entry of judgments adverse to each movant. We are concerned at this time only with petitioner Dean. His appeal was unsuccessful. Dean v. State, 535 S.W.2d 301 (Mo.App.1976). Transfer to the Missouri Supreme Court was denied. The Bonner appeals were equally unavailing. Bonner v. State, 535 S.W.2d 289 (Mo.App. 1976) and Bonner v. State, 535 S.W.2d 297 (Mo.App.1976).
As grounds for relief in this Court, petitioner alleges that his guilty plea was involuntary in that (1) it was not made with an understanding of the nature of the charges against him "and was equivocal not constituting a factual basis for the charges pending," (2) that "it was induced by fraud or mistake, by misapprehension (sic), fear, persuasion, or the holding out of hopes which proved to be false or ill founded," (3) it was not made "with an understanding of the nature of the charges because of ineffective assistance of counsel," and (4) at the time of the plea the alternative of trial by jury was "unlawfully `chilled'" in violation of the Fifth, Sixth and Fourteenth Amendments to the Constitution.
In response to our order to show cause, respondent has filed copies of the transcripts of the sentencing and Rule 27.26 proceedings (both in one document), all briefs filed in the Missouri Court of Appeals, and the opinion of that Court. In his traverse, petitioner would appear to have narrowed the issues in the case by the following statement, "In short, the `critical' question in the entire case, is not whether the petitioner knowingly decided to plead guilty but `why' he made that decision." We will, however, consider the contentions as originally made.4 Before doing so, it is well to note the following from the transcript of the pleas and sentencing:
"Q You can't be made to plead guilty in this case. You have to freely and voluntarily after full understanding of all the rights determine whether you want to plead guilty or not. I do not want to sentence a man who isn't guilty to the penitentiary. So, if you're not guilty, I don't want you to tell me you are. Now, I'm going to ask you whether or not any threats have been made against you in order to get you to plead guilty in this case when you're not guilty?
A. No, they haven't.
Q Have any promises been made to you to get you to plead guilty when you're not guilty? A. No.
Q Have you had full opportunity to discuss the facts in this case with your lawyer?
A. Yes, sir.
Q Explain to him all the facts that you know about?
A Uh-huh.
Q And, he's explained to you your rights in this matter?
A Yes.
Q You talked to your sister, who is now in Court about it?
A Yes, I have."
Petitioner's initial contention, that the guilty pleas were not voluntary for the reason they were made without an understanding of the nature of the charge against him and "was equivocal not constituting a factual basis for the charges pending," is a mere conclusory allegation wholly unsubstantiated by any credible evidence. When the guilty pleas were tendered, Judge Bloom commenced his interrogation of petitioner with the cautionary statement: It is obvious from the responses made by petitioner that he had no difficulty understanding what was said or what he was charged with. In addition, it clearly appears from the testimony of his attorney (and grudgingly conceded by petitioner) that they had discussed at length the facts of the case against petitioner and the nature of the testimony expected to be given by the witnesses for the State.
The revolting facts of the crimes charged against petitioner and his participation therein were outlined by the Assistant Circuit Attorney at the instance of the Court, following which, in answer to a series of questions petitioner verified his participatory role. We find not the slightest support for his assertion that the pleas were "equivocal."
What petitioner contended in the State courts is that he was "on heroin" the day before (claiming he had purchased it at half price from a fellow prisoner in the jail) and was "high" when he appeared in Court. Yet neither his attorney, the judge or even petitioner's sister saw the slightest indication that petitioner was then under the influence of narcotics. His sister conferred with petitioner for about a half hour prior to the entry of the pleas, and was "sure" he understood what they were talking about. Significantly, although she had observed her brother on previous occasions when his pupils were dilated, his speech blurred and he was unable to carry on a rational conversation, he appeared normal to her in all respects on the day of the plea. The trial judge testified that he would not have accepted the plea had there been any doubt as to whether petitioner was in complete control of his faculties. And petitioner's own recollection of what was said and done at the time of the pleas, as testified to by him at his Rule 27.26 hearing, belies his present claim of lack of understanding on his part.
Petitioner's second contention is that his pleas were induced by fraud, mistake, fear, persuasion and false promises. And indeed, if the credible evidence had demonstrated the verity of this ground, there could be no doubt as to petitioner's entitlement to relief.
It is quite evident from the record that the attorneys for the defendants (by reason of the strength of the state's case) had engaged in intensive plea bargaining with the prosecutor.5 After first holding out for life sentences, the prosecutor tentatively agreed to recommend three concurrent thirty-five year sentences and a concurrent five year sentence. The facts of the crimes were then outlined to Judge Bloom (who had not participated in the bargaining) and the judge was asked whether pleas based on the reduction of the murder first charges to murder second and a recommendation that each defendant be sentenced to concurrent 35 year terms on the murder and assault charges and 5 years on the rape charge would be accepted. The judge stated that he would not accept such a recommendation. In the course of the discussion which followed, the judge "made it perfectly plain to counsel, based on, what he considered to be the seriousness of the charges, that in the event the jury found the defendants guilty, he would be "inclined to run consecutively whatever sentences the jury assessed." Subsequently, the judge was asked whether he would consider a recommendation that only the proposed 35 year terms run concurrently, with the 5 year term for rape to be consecutive. The Court advised counsel he would accept that recommendation. There is no doubt in our mind that, as he testified, the judge "was negotiating with no one." He did not initiate or participate in the plea bargaining process other than to reluctantly acquiesce in the "bargain" after it was made. He made no threats against petitioner, directly or indirectly.
We see no impropriety in the fact that Judge Bloom informed counsel of his purpose to run whatever terms of imprisonment which might be assessed consecutively in the event of a conviction. As he stated in the Rule 27.26 hearing, it was his belief that counsel "had a right to know that." Surely, such information would be of value to an attorney in assessing the situation for the purpose of advising his client. In fact, until the Missouri Supreme Court subsequently held the law to be unconstitutional as a denial of equal protection of the laws (in State v. Baker, 524 S.W.2d 122, decided June 9, 1975), Missouri had a mandatory consecutive sentencing statute (Section 546.480 R.S.Mo.) which would have been facially applicable at that time. In Baker, the Missouri Supreme Court en banc also held that whether sentences imposed in a multiple count indictment be concurrent or consecutive should be determined by the trial judge in the exercise of a sound judicial discretion.
As for the sentences to be imposed in the event of a conviction, we note that each of the crimes of murder first degree carried with it a mandatory sentence of life imprisonment (Section 559.030 R.S.Mo.), and that the other two offenses could also have...
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