Barker v. State

762 S.W.2d 93, 1988 Mo. App. LEXIS 1683, 1988 WL 130253
CourtMissouri Court of Appeals
DecidedDecember 8, 1988
DocketNo. 15673
StatusPublished

This text of 762 S.W.2d 93 (Barker v. State) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barker v. State, 762 S.W.2d 93, 1988 Mo. App. LEXIS 1683, 1988 WL 130253 (Mo. Ct. App. 1988).

Opinion

CROW, Presiding Judge.

On November 1, 1979, Randall Lee Barker (“movant”), pursuant to a plea agreement, entered pleas of guilty to robbery in the first degree, § 560.120, RSMo 1969, and stealing a motor vehicle, § 560.156, RSMo 1969,1 and was sentenced to concurrent prison terms of 25 years and 10 years, respectively. A third charge of stealing a motor vehicle was dismissed.

On October 26, 1987, movant commenced a proceeding under Rule 27.26, Missouri Rules of Criminal Procedure (18th ed. 1987), to vacate the judgment and sentences.2 The circuit court, henceforth referred to as “the motion court,” after an evidentiary hearing, entered findings of fact, conclusions of law and judgment denying relief.

Movant appeals, briefing one assignment of error. It avers:

“The [motion] court erred ... when it denied movant’s Rule 27.26 motion ... when the preponderance of the evidence presented demonstrated that, at the time movant entered his plea of guilty, he was unaware of the range of punishment provided for the charges brought against him and was not properly so informed by his attorney or the trial court. Consequently, movant’s plea of guilty was not knowingly and intelligently made.”

The range of punishment for the charge of robbery in the first degree against mov-ant was imprisonment by the division of corrections for not less than five years. § 560.135, RSMo Cum.Supp.1975. The range of punishment for the charge of stealing a motor vehicle against movant was imprisonment by the division of corrections for not more than ten years nor less than two years, or by confinement in the county jail for not more than one year, or by a fine of not more than one thousand dollars, or by both such fine and confinement. § 560.161, RSMo Cum.Supp.1975.

Movant, testifying in the motion court, asserted the lawyer who represented him at the time he pled guilty — henceforth referred to as “defense counsel” — never explained the minimum and maximum penalties prescribed by law for robbery in the first degree and stealing a motor vehicle. Movant added that defense counsel never explained there was a possibility movant could receive a sentence of less than 25 [95]*95years if movant took his case to trial. Furthermore, said movant, at the time he pled guilty the judge who accepted the pleas— henceforth referred to as “the plea court” —did not explain the maximum and minimum punishments for the offenses with which movant was charged, nor did the plea court inform movant there was a possibility movant would receive “a more lenient sentence” than 25 years. Consequently, declared movant, so far as he knew the 25-year sentence he received “could have very well been the minimum sentence prescribed.” Movant insisted that had he known there was any possibility he could have received a lesser sentence than 25 years, he would not have pled guilty.

Movant conceded on cross-examination that in his pro se motion under Rule 27.26 he had alleged defense counsel advised him he could receive a life sentence, so to that extent his (movant’s) testimony about lack of advice regarding the range of punishment was incorrect.

Defense counsel, called as a witness by the State at the evidentiary hearing in the motion court, explained he was present with movant when the latter was arraigned, and that he (defense counsel) received a copy of the felony information at that time. Defense counsel subsequently reviewed the information with movant and showed it to him. Defense counsel testified that the felony information listed the range of punishment for each charge, and that he read movant the range of punishment for the charges from the information. Defense counsel added:

“The plea agreement ... was for the purpose — the reason I recall talking with him about the range of punishment — it was for the express purpose of limiting the exposure that he would have. It was up to life imprisonment, as well as a possible consecutive sentence on the stealing of the vehicle on the night of the robbery. So in order to limit that exposure, and based upon the fact that he was a walkaway from Fordland and had another conviction down in Texas, it was agreed that the Prosecutor’s Office would recommend a sentence of not more than twenty-five years on the robbery and ten years on the theft of the vehicle, with the further agreement that those two sentences would run concurrently with one another.
[[Image here]]
Q Did you discuss limiting Mr. Barker’s exposure with him?
A Yes.
Q Did he ever make any statements to you admitting that he understood this was the purpose of the plea bargain?
A Well, we talked about it several times and each time that I talked to him he expressed to me that he was understanding what I was talking about....”

The motion court, with the consent of both parties, took “judicial notice of all of the contents” of the circuit court’s file in the robbery and stealing case. That file included, among other things, the felony information which, on its face, set forth the correct range of punishment for each crime to which movant pled guilty. The motion court, in denying relief, found that movant was advised by defense counsel of the range of punishment for the crimes with which movant was charged, and that the information stated the range of punishment on its face.

Movant asserts in his brief that Supreme Court Rule 24.02(b)l mandates that before accepting a plea of guilty the trial court must determine that the accused understands the mandatory minimum penalty and the maximum possible penalty provided by law for the charge to which the plea is offered. Movant ignores, however, that Rule 24.02, as it presently exists, was not in effect November 1, 1979, when movant entered his pleas of guilty. The version of Rule 24.02 in effect at that time pertained to amendment of an information and substitution of an information for an indictment. It did not concern the acceptance by a trial court of a plea of guilty. That subject was covered by Rule 25.04, Missouri Rules of Criminal Procedure (10th ed. 1979), at the time movant entered his pleas of guilty. Such rule stated, in pertinent [96]*96part: The court ... shall not accept the plea [of guilty] without first determining that the plea is made voluntarily with understanding of the nature of the charge.”

In Williams v. State, 538 S.W.2d 759 (Mo.App.1976), the accused entered pleas of guilty to murder in the first degree and assault with intent to kill with malice. He subsequently brought a proceeding under Rule 27.26 to vacate the judgment and sentences. The circuit court denied relief. On appeal the Eastern District of this Court said that by implication Rule 25.04 required that an accused be advised of the consequences of his plea, including the punishment range. Id. at 760[1]. Williams

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Griffin v. State
684 S.W.2d 425 (Missouri Court of Appeals, 1984)
Futrell v. State
667 S.W.2d 404 (Supreme Court of Missouri, 1984)
State v. Shields
441 S.W.2d 719 (Supreme Court of Missouri, 1969)
State v. Hurtt
509 S.W.2d 14 (Supreme Court of Missouri, 1974)
Fields v. State
466 S.W.2d 679 (Supreme Court of Missouri, 1971)
Williams v. State
538 S.W.2d 759 (Missouri Court of Appeals, 1976)
Cage v. State
573 S.W.2d 73 (Missouri Court of Appeals, 1978)
Kimball v. State
722 S.W.2d 319 (Missouri Court of Appeals, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
762 S.W.2d 93, 1988 Mo. App. LEXIS 1683, 1988 WL 130253, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barker-v-state-moctapp-1988.