Wilson v. State, 11825.

Citation606 S.W.2d 266
Decision Date12 November 1980
Docket NumberNo. 11825.,11825.
PartiesEvelyn L. WILSON, Movant-Respondent, v. STATE of Missouri, Respondent-Appellant.
CourtCourt of Appeal of Missouri (US)

John A. Watkins, Greenfield, for movant respondent.

John D. Ashcroft, Atty. Gen., Weldon W. Perry, Jr., Asst. Atty. Gen., Jefferson City, for respondent-appellant.

PREWITT, Judge.

The state appeals from the trial court's ruling in movant's favor on her motion filed pursuant to Rule 27.26, V.A.M.R. Our review is limited to determining if "the findings, conclusions and judgment of the trial court are clearly erroneous." Rule 27.26(j), V.A.M.R.

Movant was charged with selling marijuana to an undercover narcotics agent. She pled guilty against the advice of her appointed counsel. He informed the judge who accepted the plea that she had a defense due to entrapment. There was evidence that her confidence in the attorney had been undercut by others, including her prospective mother-in-law, who on at least one occasion prior to the plea had acted as a bailiff for the trial court. She also told movant that if movant sold the marijuana then movant was guilty. On a form submitted to the court before the plea, movant stated that the undercover agent "asked me to get him some marijuana, so I bought an ounce & sold him half". In questioning by the judge prior to accepting the plea, she admitted that she had sold the marijuana. The judge then inquired, "He must have heard that you had marijuana available and had it for sale or why else would he have come?" She replied, "He said he just happened in the store, that he wasn't looking for anything." There were no other questions asked regarding entrapment before the plea was accepted and movant sentenced.

The motion was determined in movant's favor on two grounds or combinations thereof: (1) that the trial court did not sufficiently explore the proposed defense of entrapment to determine if the plea was voluntarily and intelligently made, and (2) that at the time of the plea movant was "effectively without counsel" and the court was obligated to then follow § 600.051, RSMo Supp.1976, which requires a written waiver of counsel form.

The trial judge hearing the motion, after denying relief on other grounds, considered "whether the trial Court made sufficient inquiries of the movant with respect to the facts of the case touching upon the defense of entrapment and whether she was effectively without counsel at the time of her plea." The trial court then determined that before the plea was accepted the judge should have made further inquiry "as to whether movant would have available to her a defense of entrapment", and that the failure to do so "entitles movant to the relief as prayed".

Rule 25.04, V.A.M.R., in effect at the time of the guilty plea, required that a court not accept a plea "without first determining that the plea is made voluntarily with understanding of the nature of the charge." The test in determining the validity of a guilty plea is whether in fact the plea was voluntarily and intelligently made. Williams v. State, 560 S.W.2d 887, 888 (Mo. App.1978). Before accepting the plea the court was not required to explain to movant every element of the crime to which she was charged if by her answers she expressed an awareness of the nature and elements of the charge to which she pled guilty. Jones v. State, 581 S.W.2d 386, 388 (Mo.App.1979).

A defendant must understand the nature of the charge; and where he pleads guilty, but denies an essential element of the offense, it demonstrates that he did not understand the nature of the charge, and he should be entitled to withdraw his plea of guilty. Davis v. State, 499 S.W.2d 445, 449, (Mo.banc 1973); McIntosh v. State, 559 S.W.2d 598, 600-601 (Mo.App.1977).

Where the criminal intent originates in the mind of the defendant, it is no defense that an opportunity is furnished, or that an officer aids in the commission of a crime; but where the criminal intent originates in the mind of the officer, and the accused is lured into the commission, it is the general rule that this is entrapment, and no conviction may be had. Kansas City v. Martin, 369 S.W.2d 602, 606 (Mo...

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5 cases
  • Funkhouser v. State, 16120
    • United States
    • Missouri Court of Appeals
    • October 20, 1989
    ...the crime. State v. Arnold, 676 S.W.2d 61, 62-63 (Mo.App.1984); State v. Ritterbach, 627 S.W.2d 894, 896 (Mo.App.1982); Wilson v. State, 606 S.W.2d 266, 267 (Mo.App.1980). So, it has been held that when the defense of entrapment is raised, then lack of entrapment becomes an additional eleme......
  • Peterson v. State, 16311
    • United States
    • Missouri Court of Appeals
    • December 12, 1989
    ...of the guilty pleas." Carrow v. State, 755 S.W.2d 328, 330 (Mo.App.1988); cf. Lee v. State, 573 S.W.2d 131 (Mo.App.1978); Wilson v. State, 606 S.W.2d 266 (Mo.App.1980); Williams v. State, 437 S.W.2d 82 (Mo.1969). A hearing was required only if the amended motion met the following test. "In ......
  • State v. Arnold, 13007
    • United States
    • Missouri Court of Appeals
    • August 9, 1984
    ...or that an officer aids in the commission of the crime. State v. Ritterbach, 627 S.W.2d 894, 896 (Mo.App.1982); Wilson v. State, 606 S.W.2d 266, 267 (Mo.App.1980). The fact that an officer merely afforded an opportunity or facilities for the commission of an offense does not constitute entr......
  • State v. Ritterbach, 12239
    • United States
    • Missouri Court of Appeals
    • January 22, 1982
    ... ... Wilson ... v. State, 606 S.W.2d 266, 267(4) (Mo.App.1980) ...         Defendant's sales of "dragon acid" to Elliott and the special agent on ... ...
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