Winford v. State, 56319

• Decision Date: 11 September 1972
• Docket Number: No. 56319,56319
• Citation: 485 S.W.2d 43
• Parties: Merle Ray WINFORD, Respondent, v. STATE of Missouri, Appellant.
• Court: Missouri Supreme Court

Page 43

485 S.W.2d 43

Merle Ray WINFORD, Respondent, v. STATE of Missouri, Appellant.

No. 56319.

Supreme Court of Missouri, En Banc.

Sept. 11, 1972.

Rehearing Denied Oct. 9, 1972.

Murphy & Kortenhof, Joseph M. Kortenhof, St. Louis, for respondent.

John C. Danforth, Atty. Gen., Kermit W. Almstedt, Asst. Atty. Gen., Jefferson City, for appellant.

HOLMAN, Judge.

Appeal by the State from order sustaining motions of Merle Ray Winford under Criminal Rules 27.25 and 27.26, V.A.M.R., to vacate and set aside judgment of conviction and sentence to life imprisonment entered on plea of guilty to charge of murder, second degree.

This appeal was originally heard in Division One where an opinion was adopted, but the case was subsequently transferred to Court en Banc because of the dissent of one of the judges. After the case was reargued the Division opinion failed of adoption en Banc and the cause was assigned to the undersigned. Portions of the aforementioned opinion are here adopted without the use of quotation marks.

On September 25, 1964, Merle Ray Winford was charged by information with murder, first degree. On September 30, 1964, he entered a plea of not guilty. On April 13, 1965, in open court, the State 'reduced' the charge to murder, second degree, and recommended a sentence to life imprisonment. Defendant, through his attorney, John Chancellor, withdrew his plea of not guilty and entered a plea of guilty to murder, second degree. The court accepted the guilty plea, honored the State's recommendation, and sentenced defendant to life imprisonment.

Beginning September 23, 1969, Merle Ray Winford filed a series of five motions to vacate judgment and sentence alleging variously as grounds for relief: that his plea was gained by false and misleading promises; that he was denied effective assistance of counsel; that he was forced to incriminate himself; that there was no conduct admitted by defendant which would have constituted murder in any degree; that the record before the sentencing judge is silent as to any incriminating conduct of defendant; that the judge never informed him of his rights; that the court did not determine that the plea was voluntarily entered and, by such failure, defendant was denied due process and his rights against self-incrimination, jury trial, and to confront witnesses.

On April 17, 1970, Merle Ray Winford, by and through his attorney, Joseph M. Kortenhof, filed 'Supplemental Motion to Set Aside Judgment of Conviction and Sentence and Withdraw Plea of Guilty (Rules 27.25 and 27.26), * * * in addition to, but not in lieu of, the other Motions heretofore filed by the said Merle Ray Winford, pro se,' to allege, as grounds for relief:

1. The nature of the charge was not adequately explained to defendant by either the court-appointed attorney or by the court prior to the reception of defendant's guilty plea.

2. Defendant, at the time of his guilty plea, did not know its consequences and legal significance.

3. Ineffective assistance of counsel.

4. Insufficient evidence to sustain a first or second degree murder charge and failure of counsel to so advise defendant.

5. Counsel appointed so late that real or intelligent investigation and preparation were precluded.

6. Defendant misled by counsel to believe an agreement had been reached for a ten-year sentence upon a guilty plea.

The evidentiary hearing was accorded April 17, 1970; movant's evidence consisted of his own testimony and the transcript of proceedings on his guilty plea of April 13, 1965.

Merle Ray Winford was discharged from the Army in October 1963. Prior to September 19, 1964, the date of the alleged offense, he had last been employed in July 1964. He had no previous conviction or difficulty with authorities. He was arrested September 20, 1964, on a check charge, and was in custody at all times thereafter. Approximately forty-five minutes after arrest, 'I was told I had killed a person and they requested that I sign some papers. I told them I did not kill anyone. I was beat up and asked to sign the papers again--I still refused to sign the papers; I was beaten again--and I signed the papers.' He signed a paper styled a confession in which he admitted shooting a young woman to death. He signed the paper because he 'couldn't take the beating any more. * * * I had not shot nobody.' He first talked to an attorney, 'a member of the Public Defender,' three or four weeks after he was charged. He saw Mr. John Chancellor 'four or possibly five times' for a total of 'fifty minutes.' He said 'there was very little he could do, due to the fact that I had signed a confession--that I had better plead guilty or I might end up in the gas chamber.' He told Mr. Chancellor the confession was false and that he gave it only to avoid further beating. They never discussed suppressing the confession. 'Mr. Chancellor said--if I could get you a fixed amount of years, would you plead guilty, and I believe he said ten years--and I agreed to plead guilty to ten years. * * * I was under the impression * * * the confession was binding and it could put me in the gas chamber.' He was not informed to the contrary; and, with respect to calling witnesses or establishing an alibi, Chancellor 'shrugged it off and said it would do no good.' At the time of his plea, he did not know the difference between first and second degree murder but did know he could be put in the gas chamber. He was not aware of the maximum or minimum punishment; it had not been explained to him; and he believed he would be given ten years. At the time of appearance before Judge McFarland, 'I was still a bit confused * * *. I actually did not know what was going on.' Judge McFarland should set aside the guilty plea and set the case for trial 'because I am not guilty of shooting anybody.' With respect to giving any legal reason why his plea should not have been accepted, he could give no legal reason at the time of his plea. 'I had no knowledge of the law.' He did not say anything when he got life instead of ten years because he 'was shocked beyond speech; I couldn't believe it.' He did not understand that when the plea was entered he was agreeing to facts as narrated by the prosecutor, Mr. Kitchin. He learned of his rights only after consultation in prison with 'jailhouse lawyers.'

The transcript of proceedings of April 13, 1965, showed:

'MR. KITCHIN: This is Cause 1378--M. The defendant is Merle Ray Winford, charged with murder first degree. The State will reduce the charge to murder second degree and recommend life in the State Penitentiary, Department of Correction.

'MR. CHANCELLOR: At this time the defendant will withdraw his plea of not guilty and enter a plea of guilty to the charge as amended, that is, the charge of murder second degree.

'THE COURT: What are the facts in this case?

'MR. KITCHIN: Your Honor, on Saturday, September 19, 1964, about 1:30 p.m., this defendant drove his girl he was going with, by the name of Bertha Lee White (Brenda Lee Wyatt), to the Lagoon Drive in Forest Park, where they discussed their relationship and she told him that she was going to leave him, break up with him, and so forth. So she started to get out of the car and he got a .22 caliber revolver from underneath the seat of the automobile and as she got out of the car he fired two shots into her head. He then took the body and placed it in the trunk of the automobile and drove to somewhere in Arkansas first and then to Kennett, Missouri. The sheriff of that county in Kennett, Missouri, found the body of the girl in the trunk of the automobile.

'MR. CHANCELLOR: For the benefit of the record may I state that the reduction is most proper in that this is not correctly murder in the first degree. He was not in the cool state of the blood. It was an offense brought about in a moment of passion.

'THE COURT: Is this the case where the defendant returned to the City? MR. KITCHIN: That is correct. THE COURT: And told the authorities where the remains of the girl could be found? MR. KITCHIN: He was in a daze and drove one hundred and eighty or two hundred miles.

'THE COURT: How old a man are you? THE DEFENDANT: I am twenty-eight years old, Your Honor.

'THE COURT: How much education have you had? THE DEFENDANT: I have a high school education.

'THE COURT: Where were you raised? THE DEFENDANT: I was born here in St. Louis, Sir.

'THE COURT: Have you been married? THE DEFENDANT. Yes. THE COURT: Divorced from your wife, is that it? THE DEFENDANT: Yes. MR. CHANCELLOR: His wife is very interested in what is happening.

'THE COURT: Do you know any legal reason why the Court should not accept your plea of guilty at this time? THE DEFENDANT: None whatsoever. THE COURT: Is there any reason, legal or oherwise, why I should not impose sentence? THE DEFENDANT: No.

'THE COURT: All right. Merle Ray Winford, in Cause No. 1378--M, wherein you are charged with the offense of murder in the second degree, the court will accept your plea of guilty as charged. And I hereby sentence you to life imprisonment in the Department of Correction.'

Evidence pertinent to the State's response consisted of testimony of witnesses Chancellor, Kitchin, and Friedman.

John D. Chancellor was an attorney employed by the Public Defender Bureau of the City of St. Louis. He opened a file on behalf of Merle Ray Winford October 1, 1964. He could not recall the number of times he talked to Mr. Winford but 'they were numerous.' He was never presented with any alibi witnesses and he never promised defendant any term of years. He discussed the difference between murder in the first and second degree and the difference in punishment for those offenses. He discussed plea recommendations with the circuit attorney and obtained an agreement to recommend life imprisonment on a guilty plea. He explained the recommendation to the defendant. 'I explained to him that if he went to trial on murder, first degree, that if he was convicted of that offense,...