Vann v. State, 21624
| Decision Date | 22 January 1998 |
| Docket Number | No. 21624,21624 |
| Citation | 959 S.W.2d 131 |
| Parties | Tony VANN, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Raymund J. Capelovitch, Asst. Public Defender, St. Louis, for Movant-Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel W. Follett, Asst. Atty. Gen., Jefferson City, for Respondent.
Tony Vann (movant) was convicted, following pleas of guilty, of the class A felonies of robbery in the first degree, § 569.020, 1 and armed criminal action, § 571.015. He filed a motion for post-conviction relief as permitted by Rule 24.035 contending, inter alia, that the trial court in his criminal case failed to establish a factual basis for his pleas of guilty. The motion court denied movant's motion.
Movant presents one point on appeal. He contends the motion court erred in denying his Rule 24.035 motion because the record of his guilty pleas does not disclose facts to support the state's claim that he committed the offenses with which he was charged. Movant argues he was denied due process of law; that the record of his guilty plea hearing does not disclose that the trial court ascertained a factual basis for the pleas of guilty he entered as required by Rule 24.02(e).
This court reverses the judgment denying movant's Rule 24.035 motion and remands with directions for the reason that the record of the guilty plea hearing in the underlying criminal case that was before the motion court was incomplete.
Rule 24.02(e) states:
The court shall not enter a judgment upon a plea of guilty unless it determines that there is a factual basis for the plea.
The transcript of the guilty plea hearing includes the following:
THE COURT: I'm going to read the charge to you, Mr. Van [sic]. Count I of robbery in the first degree.
(Court reads charge.)
Now, do you understand that Count I charge of robbery in the first degree that I just read to you?
(Court reads charge.)
Now, do you understand this Count II charge of armed criminal action that I just read to you?
The record of the guilty plea hearing contains no other reference to acts movant was alleged to have committed nor does it reveal any discussion or statement of the elements of the criminal offenses charged. There is no other disclosure of facts on which the state relied in filing criminal charges against movant.
Movant argues that the court reporter's reference, "Court reads charge," does not disclose that the court stated anything to defendant other than, perhaps, "robbery in the first degree" or "armed criminal action." He contends it cannot be assumed from this reference in the record that even the elements of the offenses charged were identified. This court agrees.
Rule 24.03 requires, in pertinent part:
When a defendant enters a plea of guilty to a felony, the court reporter shall:
(a) Record accurately all courts [sic] proceedings in connection with the plea;
(b) Prepare a transcript of such proceedings when the sentence imposed requires delivery of the defendant to the department of corrections on a felony, except any class C or class D felony....
(c) Certify the accuracy of the transcript of the proceedings and immediately deliver the certified transcript to the circuit clerk;
...
The circuit clerk shall note the filing of the certified transcript in his record and shall place the same, as a part of the permanent record of the case, in the file containing the indictment or information.
The direction for a court reporter to "[r]ecord accurately all courts proceedings" requires a verbatim record to be made. Verbatim means word for word.
Rule 24.03 requires a transcript of the hearing to be filed in the criminal case file. Upon this being done, when there is a post-conviction proceeding, the motion court has the transcript available for review upon taking judicial notice of the file in the underlying criminal case.
In this case, the motion court took judicial notice of the file in movant's criminal case. Unfortunately, the transcript of the guilty plea hearing that was part of that file was not a verbatim record of what transpired. The court reporter did not include a word-for-word recitation of what was read to movant in order to explain the acts movant was accused of committing, nor did she identify with certainty the source of the words the trial court read. The court reporter simply characterized what the trial court did as, "Court reads charge."
As explained in Row v. State, 680 S.W.2d 418, 419 (Mo.App.1984), inquiry into the factual basis of a plea of guilty may be made by "any appropriate means." However, the record must demonstrate there was an inquiry. In Row this was done by going over the elements of the offense charged, questioning the defendant concerning her understanding of the language included in the formal charge set forth in the information and, thereafter, obtaining the admission that the defendant intentionally committed the acts with which she was charged and about which she was asked. The record disclosed what was asked and what answers were given.
Another means for determining a factual basis for a guilty plea is for the prosecuting attorney to be asked to recite the evidence the state would present if the case were tried and thereafter asking the defendant if he or she understands the facts recited. See Bounds v. State, 556 S.W.2d 497, 499 (Mo.App.1977).
It is sufficient that the defendant in a criminal case, by answers to questions, expresses an awareness of the nature and elements of the charge to which he or she pleads guilty. Jones v. State, 581 S.W.2d 386, 388 (Mo.App.1979). The record in this case does not disclose that movant was made aware of the elements of the offenses to which ...
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