Wade v. State

• Decision Date: 01 October 1985
• Docket Number: No. 49877,49877
• Citation: 698 S.W.2d 621
• Parties: Ralph David WADE, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 621

698 S.W.2d 621

Ralph David WADE, Appellant, v. STATE of Missouri, Respondent.

No. 49877.

Missouri Court of Appeals,

Eastern District,

Division Three.

Oct. 1, 1985.

Kenneth A. Seufert, Farmington, for appellant.

John Munson Morris, Asst. Atty. Gen., Jefferson City, for respondent.

REINHARD, Judge.

Movant appeals after summary judgment in favor of the state on his Rule 27.26 motion. We affirm.

Movant pled guilty to one count of first degree robbery and one count of armed criminal action on October 20, 1983. Pursuant to a plea agreement, movant was sentenced to fifteen years imprisonment on both charges, those terms to be served concurrently. The sentences were to run consecutive to a seven year sentence imposed by the court in a probation revocation proceeding regarding movant.

On September 11, 1984, movant filed a Rule 27.26 motion which was subsequently amended by counsel. In his amended motion he claimed that his guilty plea was not voluntary because he was coerced into pleading guilty by his attorney, who allegedly told him he would receive a life sentence if the case proceeded to trial. Movant further alleged that he was instructed to "go along with" the judge's questions during the guilty plea hearing without regard to the truth, and, if unsure how to answer, movant was to look to his attorney for guidance. Movant also asserted that he had no direct involvement in the crimes, and that the sentence was excessive. The state filed a motion for summary judgment which was granted on March 14, 1985.

On appeal, movant contends that:

The trial court erred in granting summary judgment in favor of the state without granting an evidentiary hearing to the appellant because the allegations contained within his 27.26 motion, if true, entitled him to have his convictions set aside since his pleas of guilty were involuntarily made and the allegations of the motion were not refuted by the transcript of the guilty plea proceeding; in particular, appellant's motion alleged he was coerced into pleading guilty by his attorney as a result of threats of a life sentence and, further, directed by his attorney to answer the questions (asked by the court at the guilty plea proceeding) so as to go along with whatever the judge asked, (i.e., lie if necessary) even though he asserted his innocence to his attorney.

In order to be entitled to an evidentiary hearing on a Rule 27.26 motion, the movant must plead facts, not conclusions, which, if true, would entitle him to relief and must show that such factual allegations are not refuted by the record. Smith v. State, 513 S.W.2d 407, 411 (Mo. banc 1974); Greenhaw v. State, 627 S.W.2d 103, 104 (Mo.App.1982).

Once a guilty plea results, adequacy of representation bears only on whether the plea was made voluntarily and knowingly. Branstuder v. State, 609 S.W.2d 460, 463 (Mo.App.1980). "If the record conclusively establishes that the accused knowingly and voluntarily pleaded guilty, it is proper to deny an evidentiary hearing on a motion for post conviction relief based on an allegation that the guilty plea was coerced." Thomas v. State, 605 S.W.2d 792, 794 (Mo. banc 1980).

We find that the record in this case conclusively establishes that movant knowingly and voluntarily pleaded guilty and refutes movant's present allegations. Here the court considered, in addition to the record of the plea hearing, movant's unchallenged statement to the Madison County Sheriff, a transcript of which was attached to the state's motion for summary judgment. In his statement movant admitted that he had participated in the planning of the crime with his brother, and had suggested that "Inland [a service station/mini-mart] would be a good place" to rob. Movant said that after discussing the robbery, he and his brother went to get a gun, then proceeded to the service station. Movant drove around the surrounding area while his brother robbed the station, then returned, pursuant to their plan, to meet his brother down the road from the crime scene.

At the plea hearing, movant was fully apprised of his rights, and he said he understood them. The court informed him that he could receive a maximum sentence of life imprisonment on each charge, and made sure he understood what sentence he would receive under the plea agreement. The court made an inquiry...