King v. State , 1980 Mo. App. LEXIS 3564 ( 1980 )

TURNAGE, Judge.

Leon King filed a motion under Rule 27.26 following his plea of guilty to murder in the second degree and sentence of life imprisonment. The court denied the motion without an evidentiary hearing but made findings of fact and conclusions of law. On this appeal King contends the court erred in refusing relief because (1) his guilty plea was involuntary since it was obtained under a promise that his sentence would be from 10-15 years and in no event longer than 30 years; (2) he should have been allowed to withdraw his guilty plea prior to sentencing; and (3) he was entitled to an evidentiary hearing. Affirmed.

On April 26, 1972, King appeared before Judge Henry Riederer and entered a plea of guilty to murder in the second degree. Judge Riederer conducted a thorough and exhaustive examination of King, King’s mother and King’s counsel before finding the plea was voluntarily entered and accepting the same. During this examination King stated that at age 15 he and two other men entered Joe’s Loan Shop. King was armed with a sawed-off shotgun and at least one of the others had a .38 caliber revolver. Their purpose was robbery, and during the course of the crime, King stated that he fired his shotgun and struck the shop owner. King stated that he later learned that the owner actually died from wounds inflicted by the .38 caliber revolver rather than those inflicted by King with the shotgun. Jurisdiction of King was relinquished by the juvenile court and he was charged as an adult.

During the guilty plea, King was represented by Richard Beitling and William Ferguson, Jr. King acknowledged during this hearing that he knew the State was going to reduce the charge from first degree murder to second degree murder before he agreed to plead guilty. He stated no other deal had been made. He stated there had been no threats or promises or offer of reward in order to get him to plead guilty. He also stated there was no prediction as to what sentence he would receive.

King’s mother was present in this hearing and also stated that she understood the proceeding and that she thought it was best for King to plead guilty. Mr. Beitling made a statement to the court in which he stated that he had discussed the matter thoroughly with King, his mother and stepfather and it was the decision of those three for King to plead guilty.

King stated that he was satisfied with the services rendered by Mr. Beitling and Mr. Ferguson. At the conclusion of the hearing, the court stated that it found that King had acted voluntarily with an understanding and appreciation of his rights in entering his plea. The consequences of pleading guilty, and that he is, in fact, guilty and accepted the plea. The court stated that it was not pronouncing sentence at that time, but was requesting a report from the State Board of Probation and Parole.

Judge Riederer later died and was succeeded by Judge Marsh. On February 9, 1973, King appeared before Judge Marsh. At this time Judge Marsh conducted a thorough and complete examination of King, his mother and Mr. Beitling, who again appeared as King’s counsel. Judge Marsh had a transcript of the guilty plea proceedings before Judge Riederer and went over almost every question in that transcript with King to determine if King remembered the questions and answers.

At the beginning of the proceedings before Judge Marsh, the judge indicated that he was aware that King wanted to reconsider his plea of guilty and King later requested that he be allowed to withdraw his plea. This was followed at the conclusion of the hearing by an oral motion by Mr. Beitling that King be allowed to withdraw his guilty plea before Judge Marsh pronounced sentence. When King advised Judge Marsh that he would like to withdraw his guilty plea, he gave as a reason that the court had promised that his sentence would be no more than 30 years and since Judge Riederer had died, he would just like to change his plea. King’s mother also stated that Judge Riederer had told them during the guilty plea hearing that the sentence would not exceed 30 years. Judge Marsh thereafter went over the guilty plea transcript in detail with King. When Judge Marsh asked King if he recalled Judge Riederer asking if there had been any promise of anything in the future and King’s response of no, King stated that he remembered such question and answer.

When the court inquired if the answer to that question were true, King responded that it was not. Thereafter, the court continued its interrogation of King with an inquiry about the question Judge Riederer had asked about any prediction as to what sentence he would receive and King’s response of no. Judge Marsh asked King if he remembered that question and answer, and King stated he did and the answer was true. Judge Marsh inquired if King recalled Mr. Beitling telling Judge Riederer that he and Mr. Ferguson were ready, willing, and able to commence a trial to defend King, but that King had told him that after consulting with his mother and stepfather he did not wish to have a trial. King also recalled Beitling’s statement that it was King’s own free choice to plead guilty to murder in the second degree and King told Marsh that statement was true. King also stated he remembered Mr. Beitling telling the court that he had not committed the court or the prosecutor as to what would be done in that case.

King told Judge Marsh that he wanted to withdraw his plea of guilty because he was dissatisfied but that he was not asking to withdraw the plea because he was not guilty. King again admitted to Judge Marsh that he walked into the Loan Shop with a sawed-off shotgun and shot the owner. He admitted he, Steele and Lockett had entered the store for the purpose of robbery.

Judge Marsh carefully interrogated Mrs. Haislip, King’s mother, concerning the hearing before Judge Riederer. She agreed, contrary to her earlier statement, that she had not heard Judge Riederer make any statement that the sentence would be 30 years. Thereafter, Judge Marsh interrogated King again and King agreed at that time that no mention of a 30-year sentence had been made before the plea, but that some mention had been made of that sentence after the plea was entered.

Mr. Beitling told the court that he thought there was some confusion because Mr. Ferguson had been a bailiff for Judge Riederer and after the plea of guilty was entered Mr. Ferguson had discussed the King matter with Judge Riederer. It was apparently during this conversation that some mention of a 30-year sentence was made and this information was relayed to King and his mother. Mr. Beitling felt sure this was the source of information on the part of King and his mother about the 30-year sentence. Mr. Ferguson had also died since the guilty plea.

Thereafter, King and his mother both agreed that no mention of a 30-year sentence was made before the plea was entered, but whatever mention of this was made to King came after the entry of the plea.

In his first point King argues the court erred in overruling his 27.26 motion because his plea of guilty was not freely and voluntarily made. His argument develops the reasoning for his statement to be the fact that King entered his plea under the belief that he would receive a 30-year sentence as he told Judge Marsh before agreeing this mention came after the plea. A review of the guilty plea proceedings before Judge Riederer by this court and the careful review of the transcript by Judge Marsh with King, his mother, and Mr. Beitling, refute beyond any question that King entered a plea without any promise or understanding that he would receive a 30-year sentence. The transcript of the guilty plea hearing reveals fully that King, his mother and his counsel all realized that he was entering a plea of guilty, his sentence would be pronounced later with no prediction as to what that sentence might be. In fact, during oral argument of this case, a question was directed to King’s counsel on this appeal, who is different from counsel during the guilty plea and sentencing, as to whether there is anything in the record of the proceedings before Judge Riederer to indicate any understanding with respect to the sentence to be imposed. Counsel’s response to this question was:

None whatsoever. It reads in a very ritualistic manner that no promises had been made. He knew that all that was left for the judge to do was to sentence him and that at the time he could sentence him to anything within the range of punishment allowed by law.

There is nothing in the guilty plea record to support the contention now made in the brief and the only source given in the brief is the statement made by King at the sentencing hearing that he thought he would receive no more than 30 years. As previously noted, King later acknowledged this was wrong and no mention of 30 years had been made until after his plea of guilty had been entered. There was no basis on which the court could have found that King’s plea was not voluntarily and intelligently entered.

King’s second point on this appeal is that his motion should have been sustained because Judge Marsh should have allowed him to withdraw his guilty plea. The refusal to allow a guilty plea made before sentencing to be withdrawn is appealable. State v. Begley, 534 S.W.2d 632, 634[1, 2] (Mo.App.1976). A 27.26 motion cannot substitute for a direct appeal. Achter v. State, 545 S.W.2d 83, 85[2-4] (Mo.App.1976); Franklin v. State, 455 S.W.2d 479, 486[13, 14] (Mo.1970). Thus, there is considerable doubt that the refusal of a motion to withdraw a guilty plea may be entertained in a 27.26 motion. However, the parties have not addressed this question and for the purpose of this opinion this court will assume, without deciding, that review of the refusal to allow the withdrawal is proper. Again, the basis for the contention that Judge Marsh should have allowed King to withdraw his plea is the fact that King at one time stated he believed his sentence would not exceed 30 years. As pointed out at length, King made this statement but later acknowledged that he did not know anything of a 30-year sentence until after the plea was entered. Furthermore, the guilty plea transcript completely refutes this idea.

King finally contends the court erred when it refused him an evidentiary hearing. King did have the assistance of counsel on this motion and the court did enter findings of fact and conclusions of law. The court found that the files and transcript refuted the allegations in the motion and an eviden-tiary hearing was not required.

In Dykes v. State, 574 S.W.2d 697, 698[1] (Mo.App.1978) it was stated:

If the allegations of the motion are refuted by the record of the guilty plea and sentencing proceedings, as the trial court found, then the action of the trial court is correct and should be affirmed. Smith v. State, 513 S.W.2d 407 (Mo. banc 1974).

The transcript, both of the guilty plea and the sentencing, refuted the contentions made by King that he entered his plea on the promise of a 30-year sentence, and thus, an evidentiary hearing was not required. The decision by the trial court in this case was made on September 25, 1978, and the decision in Fields v. State, 572 S.W.2d 477 (Mo. banc 1978) was announced on November 6, 1978. Thus, this case does not fall under Fields.

The judgment is affirmed.

WASSERSTROM, C. J„ and SHAN-GLER, SWOFFORD and CLARK, JJ., concur. DIXON, J., concurs in result in separate concurring opinion. KENNEDY, J., dissents in separate dissenting opinion.