Wraggs v. State

• Decision Date: 10 May 1977
• Docket Number: No. 59704,59704
• Citation: 549 S.W.2d 881
• Parties: Robert Charles WRAGGS, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 881

549 S.W.2d 881

Robert Charles WRAGGS, Appellant, v. STATE of Missouri, Respondent.

No. 59704.

Supreme Court of Missouri, En Banc.

May 10, 1977.

Kevin M. O'Keefe, St. Louis, for appellant.

Robert M. Sommers, Asst. Atty. Gen., Jefferson City, for respondent.

BARDGETT, Judge.

On application of respondent State of Missouri, this cause was transferred by this court from the Missouri court of appeals, St. Louis district, after opinion in that court, pursuant to art. V, sec. 10, Mo.Const., as amended 1970, and Rule 83.03. The reason we transferred the case was to consider respondent's contention that the court of appeals erred in its interpretation of United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), in light of Peterson v. United States, 493 F.2d 478 (8th Cir. 1974), Ryan v. United States, 485 F.2d 295 (8th Cir. 1973), and United States v. Belle, 525 F.2d 25 (8th Cir. 1975), which, in applying Tucker, denied the petitioners' applications to vacate a sentence previously imposed and to resentence the defendants. The case has been briefed and argued here and the court has concluded that the court of appeals opinion is not in conflict with Tucker, Peterson, Ryan, or Belle. We adopt the court of appeals opinion of Houser, Sp. J., with some additional comments.

Appeal from order denying Robert Charles Wraggs's Rule 27.26 motion to vacate or correct a judgment rendered and a sentence of 13 years' imprisonment imposed on March 23, 1972, on a charge of assault with intent to maim with malice.

Appellant was charged and convicted under the Habitual Criminal Act (based on a 1964 conviction of burglary and stealing) in division No. 20 of the circuit court of the city of St. Louis on January 7, 1972. The trial judge, Honorable Daniel T. Tillman, overruled appellant's motion for new trial on March 23, 1972, and sentenced appellant to the 13-year term, ordering that it run concurrently with four previous sentences. ¹ Judge Tillman made specific reference to these prior convictions during the sentencing hearing, stating "I am going to give you time in addition to what you have."

Subsequently Judge Nangle, who sentenced appellant in the four previous convictions in 1970, sustained a Rule 27.26 motion by appellant (filed in December 1972) attacking the two robbery sentences on the ground that the two victims were robbed in the course of the same transaction and two prosecutions for substantially the same act are not authorized. On the day Judge Nangle vacated the robbery sentences appellant repled guilty to one of the robbery charges and was sentenced to six years' imprisonment by Judge Nangle. The six-year sentence was ordered to run concurrently with the 13-year sentence imposed by Judge Tillman. Thereupon the other robbery charge was dismissed.

Thereafter appellant filed this Rule 27.26 motion in division No. 20 before Judge Tillman, attacking the validity of the 13-year sentence on the principal ground that it was based in part on Judge Tillman's consideration of an illegal and invalid prior conviction which was later vacated and set aside. At the conclusion of the hearing on the motion, Judge Tillman stated among other things that the basis for bringing appellant under the Habitual Criminal Act was not the two robbery cases but was the burglary of December 7, 1964; that in fixing a 13-year sentence the judge considered the totality of appellant's prior convictions, together with information supplied by the state highway patrol indicating appellant's past involvement with the law. Judge Tillman denied the motion, filing findings reciting that the sentence imposed "was within the court's sound discretion and was not based on any prior conviction which was unconstitutional"; that "no manifest injustice has been proven by sentencing defendant to a term of thirteen years on the charge of assault with intent to maim with malice," and that the 13-year sentence was "justified * * * by the severity of the crime * * * and the previous conviction for burglary."

Appellant claims error in the failure of the court to set aside the 13-year sentence "since it resulted from the court's consideration of previous unconstitutional convictions and sentences," citing Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1948), and United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). Under these controlling decisions we must vacate and set aside the 13-year sentence, for the reason that the record clearly and unequivocally demonstrates that appellant was sentenced "on the basis of assumptions concerning his criminal record which were materially untrue," Townsend v. Burke, 334 U.S. l.c. 741, 68 S.Ct. 1255, namely, that Judge Tillman was confronting a defendant whom he considered and believed to have been legally convicted of five previous felonies, including two convictions for first degree robbery on each of which defendant had been legally sentenced to 10 years' imprisonment, whereas in truth defendant had been legally convicted of three previous felonies; and had not been legally convicted of the two robbery convictions (which entered into the determination) because the robbery convictions were invalid. The rationale is that the sentence of March 23, 1972, "might have been different if the sentencing judge had known that at least two of (appellant's) previous convictions had been (illegally) obtained." United States v. Tucker, 404 U.S. l.c. 448, 92 S.Ct. 592.

The State contends that the 13-year sentence was not "based on the two robbery convictions" but on the burglary conviction, but on this record the conclusion is inescapable that the sentencing judge on March 23, 1972, took into consideration "the totality" of appellant's prior convictions, including the two 10-year robbery sentences later invalidated; that in referring to the 1964 burglary in his remarks at the conclusion of the evidence at the 27.26 hearing the judge was referring to the basis upon which the information under the Habitual Criminal Act was filed and not to the basis for the sentence, and that the reference to the burglary in the findings of fact was intended to convey the idea that the previous burglary conviction in and of itself would have been a sufficient "prior conviction" to justify the 13-year sentence, without regard to the two robbery convictions. The latter, of course, is not the question. The pertinent question is whether the sentence was predicated on misinformation; whether the sentence might have been different if the sentencing judge had known that at least two of appellant's previous convictions had been illegally obtained.

We cannot on this appeal entertain the State's contention that under Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), Judge Nangle erred in his ruling of November 21, 1973, setting aside the 10-year sentences, for we cannot here try that collateral matter and we must presume right action in that case.

Nor can we credit the State's argument that it would be futile to remand the case for resentencing because the trial judge will pronounce the same sentence on remand. A sentence passed on the basis of a materially false foundation lacks due process of law and entitles the defendant to a reconsideration of the question of punishment in the light of the true facts, regardless of the eventual outcome.

The court of appeals then vacated the 13-year sentence and remanded for resentencing.

Respondent contends in this court that the foregoing opinion is contrary to the interpretation placed upon Tucker by the United States court of appeals, eighth circuit, in Peterson v. United States, Ryan v. United States, and United States v. Belle, supra.

In Ryan the prior convictions which Ryan asserted to be invalid had not been held invalid. In Peterson the allegedly invalid prior state convictions had previously been upheld as constitutionally valid. In Belle one of the five previous convictions had been reversed prior to the sentencing about which Belle was complaining. During the sentencing proceedings the judge asked Belle if it wasn't correct that he had at least four adult convictions and Belle responded affirmatively and did not mention that a fifth conviction, a Dyer Act violation, had been reversed.

In each of these three cases the sentencing judge heard the postconviction motions and in overruling the motions stated unequivocally that the sentence he imposed was without regard to the prior convictions and that he would...