Welch v. State, 43117

• Decision Date: 14 July 1981
• Docket Number: No. 43117,43117
• Citation: 620 S.W.2d 401
• Parties: Michael Arlen WELCH, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 401

620 S.W.2d 401

Michael Arlen WELCH, Appellant, v. STATE of Missouri, Respondent.

No. 43117.

Missouri Court of Appeals, Eastern District, Division Three.

July 14, 1981.

Rehearing Denied Aug. 6, 1981.

Richard K. Kuntze, Cape Girardeau, for appellant.

John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, Stephen N. Limbaugh, Jr., Pros. Atty., Cape Girardeau, for respondent.

CRIST, Presiding Judge.

Rule 27.26 proceeding. Movant appeals the denial of his Rule 27.26 motion without evidentiary hearing. We affirm in part but amend movant's sentence to conform with the terms of the plea agreement.

On December 4, 1978, movant pleaded guilty, in the instant cause No. 751498, to burglary and stealing. At that time, movant was awaiting sentencing in another earlier cause No. 751163. The prosecuting attorney made a recommendation to the court that any sentence imposed in the instant cause No. 751498 run concurrently with any sentence imposed in the earlier cause No. 751163.

After defendant's guilty plea in the instant cause No. 751498, but before imposition of sentence thereon, defendant was sentenced to consecutive four (4) and three (3) year terms of imprisonment in the earlier cause No. 751163. On January 2, 1979, movant was sentenced in the instant cause No. 751498 to two (2) concurrent five (5) year terms of imprisonment to run consecutively with the sentence imposed in the earlier cause No. 751163. This sentence failed to conform with the prosecutor's recommendation that sentence imposed in the instant cause No. 751498 run concurrently with sentence imposed in the earlier cause No. 751163.

Movant's contention that he was not informed that the court was rejecting the plea agreement before entering his guilty plea is supported by the record. The record also reveals that the guilty plea judge did not allow defendant to withdraw his guilty plea once the plea agreement was rejected, contrary to the requirements of Schellert v. State, 569 S.W.2d 735 (Mo. banc 1978). In all other respects, however, the record supports the Rule 27.26 judge's finding that defendant's guilty plea was voluntarily, knowingly and intelligently made. We disagree with movant's contention that he was entitled to an evidentiary hearing based on his allegation that he

Was mislead (sic) by his attorney to believe the replies which he gave at his plea of guilty were merely formalities which were necessary to gain the sentencing concession which had been offered to him pursuant to the terms of the plea bargain, i. e. that the sentences imposed would run concurrently with all other sentences.

Smith v. State, 513 S.W.2d 407 (Mo. banc 1974).

The question presented is whether or not movant is entitled to plead anew. We think not. Movant was, under the...