Howard v. State

493 S.W.2d 14, 1973 Mo. App. LEXIS 1463

• Court: Missouri Court of Appeals
• Decided: March 21, 1973
• Docket: 9371
• Status: Published

Opinions

PAUL E. CARVER, Special Judge.

This is an appeal from an order denying William Floyd Howard an evidentiary hearing on his application for a writ of error coram nobis.

Petitioner-Appellant, to whom we shall refer hereafter as movant, on January 7, 1972, filed in the office of the Circuit Clerk of Phelps County a motion styled “Application For Writ of Error Coram Nobis.” Accompanying this motion was a sworn statement of fact and a brief citing many cases not applicable to or supporting his motion.

Movant, by his motion and sworn statement attached thereto, informed the trial court as follows:

“In Feb. of 1967 Applicant was arrested on a charge of stealing over $50.00 and in March of 1967 applicant pleaded guilty to said charge and this court imposed a sentence of 5 years against applicant for said charge above.”

The transcript discloses that on March 29, 1967, movant entered a plea of guilty and was sentenced to a term of five years. He was also allowed 21 days credit for time spent in the Phelps County jail before his conviction.

At the time of the entry of a plea of guilty and at his preliminary hearing he was represented by M. E. Carnahan, a member of the Phelps County Bar. On his appeal movant was represented by Jay V. White, also a member of the Phelps County Bar. Movant does not complain of the services rendered by Mr. Carnahan nor by Mr. White.

Movant’s motion is poorly drawn. It consists of conclusions, vague statements of fact, and various irrelevant citations of legal authorities in support of the motion. It may be noted that the motion was not prepared by Mr. Carnahan or Mr. White, his court-appointed counsel.

The record is not clear whether movant has complied with the sentence assessed against him. It does disclose he was sentenced on March 29, 1967, to a term of five years and that his motion for a writ of error coram nobis was filed on January 7, 1972. Considering that at the time of this decision movant would have completely served the sentence assessed, we conclude that movant has now served the sentence against him. In his jurisdictional statement he states, “Writ qf Error Coram Nobis is available to establish that defendant was denied due process when convicted, although defendant had already served his sentence . . . .” He also cited cases that hold coram nobis' is a proper remedy to attack prior convictions where the sentence has been served. We shall consider this based on the assumption he has already served the sentence assessed against him.

From an examination of the record and movant’s motion and brief it appears that:

“On March 27, 1967, the Prosecuting Attorney filed information against petitioner-appellant charging him with stealing property [of the] value [of] over $50.00.

“On March 29, 1967, petitioner-appellant with his Court appointed attorney Melvin E. Carnahan appeared and entered a plea of guilty to the charge of stealing property [of the] value [of] over $50.00 and re-cieved [sic] a five year sentence to Missouri State Department of Corrections.

“The [evidence] indicates that the petitioner-appellant was remanded to the custody of the sheriff, to he delivered to the Reception Center of the Department of Corrections for complian[ce] with his sentence.

“ . . . [0]n January 7, 1972, petitioner-appellant filed a writ of coram no-bis, application for writ of error coram nobis, and pauper affidavit.

“Petitioner-appellant stated as grounds for invalidating the judgment and sentence, as follows:

1. His plea was involuntarily entered without full understanding of the law in relation to the facts.

2. His plea was involuntarily made through coercive threats on [the] part of police officers while he was in jail.

3. Petitioner-appellant could not file a 27.26 application because the officers at Algoa would not let anyone there file any writ.

4. Petitioner-appellant claims he was arrested without a warrant and without probabl[e] cause to arrest him.

5. Petitioner-appellant claims that statements of a co-defendant were unsupported and the evidence would not have been enough to convict him.

“ . . . [0]n January 17, 1972, the Circuit Court of Phelps County denied petitioner-appellant’s writ of error coram nobis.

“ . . . [0]n the 25th day of January, 1972, petitioner-appellant filed his notice of appeal and motion to proceed [in] forma pauperis.

“Thereafter, on the 27th day of February, 1972, the trial Court appointed M. E. Carnahan Attorney for petitioner-appellant’s appeal.

⅜ ⅜ ⅜ ⅜ ⅜ ⅜

“ . . . [0]n March 7, 1972, notice of appeal and motion to proceed in for-ma pauperis was mailed to the Clerk, Missouri Court of Appeals, Springfield, Missouri.

“ . . . [0]n the 14th day of March, 1972, the Court released Attorney M. E. Carnahan as Court appointed attorney for petitioner-appellant and appointed Jay White of Phelps County Bar as attorney for petitioner-appellant.

“ . . . [0]n the 17th day of March, 1972, Notice of Appeal and Pauper Affidavit was mailed to the Supreme Court of Missouri.”

Movant, as an additional ground for relief, requested the trial court as follows: “Applicant would like to have this motion acted on in the same way as a 27.26 to find if the facts hold to be true, and were [sic] applicant can prove that all allegations are true.”

In support of his motion the following sworn statement was attached:

“In Feb. of 1967 Applicant was arrested on a charge of stealing over $50.00 and in March of 1967 applicant pleaded guilty to said charge and this court imposed a sentence of 5 years against applicant for said charge above.

“At that time before applicant pleaded guilty, Officers of the Law made all kinds of statements to applicant about what was going to happen to him if applicant did not plead guilty and because of the fear that the said Officers made applicant pleaded guilty to said charge, but only did so because of the fear and not because he was guilty or not.

“At the time this happened applicants Attorney which was appointed by the court, one M. E. Carnahan was in the hospital and could not help applicant in anyway [sic] and by the time Mr. Car-nahan came out of the hospital applicant was ready to plead guilty because of the fear the officers had put in applicant while he was in jail. Applicant phoned Mr. Carnahan and told him that he wanted to plead guilty because if applicant did get off of this charge that other charges were going to be fild [sic] against him until they sent him up, so appliant [sic] pleaded guilty through the fear of all this.

“After applicant was sent to prison at algoa he wanted to do something about this but did not really know what to do, and was told that the inmate were not let to file any writs from that place, and which is the same now no one in algoa can file a pro se writ from that place and this can be looked into if need be to prove this fact stated here. So by applicant not being able to file a 27.26 or anything at all. Applicant at that time did not know how to file any such thing as a writ but would have learned if he would have had a chance to do so in not being able to file anything then applicant was deied [sic] due process of Law as stated in Article 1, Section 14, Const. Mo., V.A.M.S.

“Applicant was also denied some other rights as will be shown below. Such as.

(1) Applicant was arrested without a warrant and without probable cause to arrest him.

(2) Statements by Co-defendant was unsupported and the evidince [sic] would not have been enough to convict applicant herein.”

“THEREAFTER, on January 17, 1972, the Court, by its order made and entered of record, ruled as follows:

‘Now on this day the Court takes up application of Petitioner William F. Howard for writ of Coram Nobis and after due consideration said application be and hereby is denied.’ ”

On the 25th day of January, 1972, petitioner filed his Notice of Appeal and Motion to Proceed in Forma Pauperis.

Movant has briefed only the following point. We shall consider it:

“The judgment of the trial Court in denying and dismissing petitioner-appellant’s application for writ of coram nobis to invalidate the sentence and judgment was clearly erroneous because it was made without any evidentiary hearing where petitioner-appellant’s motion alleged an involuntary plea of guilty and thereby raised a substantial fact issue directly contradicting the record.”

The trial court had jurisdiction to consider movant’s application for a writ of error coram' nobis. Peterson v. State, 476 S.W.2d 608, 610[2] (Mo.1972); Laster v. State, 461 S.W.2d 839, 840[1] (Mo.1971); State v. Carter, 399 S.W.2d 74, 76[2] (Mo.1966). It is an appropriate remedy to attack prior convictions where adequate facts exist and are pleaded, although the sentence assessed has been served. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248, 257[17] (1954); State v. Crow, 475 S.W.2d 71, 72[1] (Mo.1972); Laster v. State, supra, Mo., 461 S.W.2d at 840[1],

It is apparent the trial court, without having an evidentiary hearing or movant being present, considered the motion and sworn supporting statement and determined from them that the motion should be denied.

It is our duty to determine if the trial court was justified in not holding an evi-dentiary hearing.

A writ of error coram nobis is a civil action in nature and not criminal. Peterson v. State, supra; State v. Smith, 324 S.W.2d 707, 711-712[7] (Mo.1959). It is a remedy of the common law addressed to the trial court to correct errors of fact affecting the validity of the proceedings, which at the time of trial were unknown to the party seeking relief, and to the court. It is considered to be a new action and its purpose is to revoke the former judgment.

The right to relief under a writ of coram nobis is not absolute, nor is the writ allowed as of course or as a matter of right. The writ is issued only if it be made to appear with reasonable certainty that some error of fact not apparent on the record was unknown to movant. Blodgett v. State, 245 S.W.2d 839, 842[1] (Mo.1952).

The burden of proof being on mov-ant, he must present proof that supports the well pleaded allegations of his motion, Gordon v. United States, 216 F.2d 495, 498[3] (5th Cir. 1954); Tinkoff v. United States, 129 F.2d 21, 23 [2] (7th Cir. 1942), and such allegations must be established by a preponderance of the evidence. 18 Am. Jur.2d Coram Nobis § 26, pp. 493, 494 (1965).

Movant’s allegations consist of certain vague and conclusory errors that occurred at, before, and after the entry of his plea of guilty. We shall determine these allegations, although they are vague, concluso-ry, and not well pled.

A motion in the nature of a writ of coram nobis and supporting affidavits must state with particularity sufficient facts to constitute grounds for relief. Gordon v. United States, supra, 216 F.2d at 498[3]; Spaulding v. United States, 155 F.2d 919, 921 [8] (6th Cir. 1946).

We will consider movant’s allegations :

“(1) The plea of guilty was Involuntarily entered without full understanding of the Law in relation to the facts.

“(2) Involuntrily [sic] made through coercive threats on the part of the Police officers while defendant was in jail.”

These allegations do not state facts with particularity sufficient to constitute grounds for relief. Aggers v. United States, 280 F.Supp. 774, 775 [1,2] (E.D.Mo.1967).

“(3) Defendant could not file a 27.26 because of the Officers at the place of detention would not let anyone there file any writ. The place of detention at that time was Algoa a part of Missouri Prisons.”

Such an allegation is not an attack on the judgment of conviction, Sanders v United States, 183 F.2d 748, 749[1] (4th Cir. 1950) ; Laster v. State, supra Mo., 461 S.W.2d at 840-841 [5], and cannot be considered in a coram nobis proceeding.

In addition to his other complaints mov-ant alleges:

“Applicant was also denied some other rights as will be shown below. Such as.

[(A)] Applicant was arrested without a warrant and without probable cause to arrest him.

[(B)] Statements by Co-defendant was unsupported and the evidince [sic] would not have been enough to convict applicant herein.

[(C)] Applicant would like to have this motion acted on in the same way as a 27.26 to find if the facts hold to be true, and were [sic] applicant can prove that all allegations are true.”

The designations of “A”, “B”, and “C” are designated by us for the purpose of clarity in order to avoid duplication of claimed errors.

Allegation “A”, which is as follows: “Applicant was arrested without a warrant and without probable cause to arrest him”, affords no ground for relief and cannot be considered in a coram nobis proceeding. Collins v. State, 454 S.W.2d 917, 919[2] (Mo.1970).

Allegation “B”, which is as follows: “Statements made by Co-defendant was unsupported and the evidince [sic] would not have been enough to convict applicant herein”, affords no ground for relief. Questions as to the sufficiency of the evidence are not proper subjects to be considered in coram nobis proceedings. Weaver v. United States, 418 F.2d 475, 476[1] (8th Cir. 1969).

Movant requests by Allegation “C” that: “Applicant would like to have this motion acted on in the same way as a 27.26 to find if the facts hold to be true, and were [sic] applicant can prove that all allegations are true.”

The trial court had no jurisdiction to determine movant’s motion under V.A.M.R. Rule 27.26. Movant is not now detained or in custody under a sentence that he is seeking to vacate. Bibbs v. State, 476 S.W.2d 590 (Mo.1972); Peterson v. State, supra, 476 S.W.2d at 609-610[1]; Lalla v. State, 463 S.W.2d 797, 801[2] (Mo.1971).

As we have disposed of the other allegations, we will consider allegations (1) and (2) as well pled in order to completely determine all of the issues.

“(1) The plea of guilty was Involuntarily entered without full understanding of the Law in relation to the facts.”

“(2) Involuntrily [sic] made through coercive threats on the part of the Police officers while defendant was in jail.”

Movant’s sworn statement conclusively shows as follows:

“At that time before applicant pleaded guilty, Officers of the Law made all kinds of statements to applicant about what was going to happen to him if applicant did not plead guilty and because of the fear that the said Officers made applicant pleaded guilty to said charge, but only did so because of the fear and not because he was guilty or not.

“At the time this happened applicants Attorney which was appointed by the court, one M. E. Carnahan was in the hospital and could not help applicant in anyway [sic] and by the time Mr. Car-nahan came out of the hospital applicant was ready to plead guilty because of the fear the officers had put in applicant while he was in jail. Applicant phoned Mr. Carnahan and told him that he wanted to plead guilty because if applicant did get off of this charge that other charges were going to be fild [sic] against him until they sent him up, so appliant [sic] pleaded guilty through the fear of all this.”

Such facts existed and were fully known to movant and not disclosed by him to the trial judge at the time of entering his plea of guilty and sentencing. His motion does not state or complain that such facts were unknown to him. In fact, in his motion he states, “Put otherwise, [coram nobis] it is appropriate only to bring to the attention of the trial court matters of fact not revealed to it during the course of trial

The writ of error coram nobis is issued only if it be made to appear with reasonable certainty that some error of fact not apparent on the record was unknown to movant and could not by the exercise of reasonable diligence have been discovered by him in time to have been presented to the court. It will not' lie where the party complaining knew the facts complained of at the time or before trial, or by the exercise of reasonable diligence might have known it. State v. Smith, supra. This being true, it was the duty of movant to make it known to the court that immediate action might be taken to afford him a fair trial instead of concealing the fact, entering a plea of guilty, and then at a later date complain. The law does not contemplate that when one seeking this writ is possessed of the knowledge of the error of facts and has other equally effective remedies which he fails to invoke, that he may thereafter seek to assail the integrity of the judgment upon the strength of such concealed facts, when its timely disclosure would have afforded relief, State v. Richardson, 291 Mo. 566, 577, 237 S.W. 765, 768 [3] (banc 1922); Blodgett v. State, supra, and he may not now complain of his failure to disclose facts that he knew existed at the time of his plea of guilty and sentencing.

It is to be noted that movant explains that his excuse in pleading guilty was:

“At the time this happened applicants Attorney which was appointed by the court, one M. E. Carnahan was in the hospital and could not help applicant in anyway [sic] and by the time Mr. Car-nahan came out of the hospital applicant was ready to plead guilty because of the fear the officers had put in applicant while he was in jail. Applicant phoned Mr. Carnahan and told him that he wanted to plead guilty because if applicant did get off of this charge that other charges were going to be fild [sic] against him until they sent him up, so appliant [sic] pleaded guilty through the fear of all this.”

The threat of additional prosecutions if he did not plead guilty was proper. Peterson v. State, supra; State v. Becker, 263 Minn. 168, 115 N.W.2d 920, 921 [2] (1962).

The following point remains to be disposed of: Did the trial court err in not holding a hearing, or in denying the motion without the movant being present.

Movant’s motion fails to allege the necessary facts on the face of the motion entitling him to relief. No hearing is required. State v. Becker, supra, 25 Am. Jur.2d 11.

A writ of error coram nobis is a civil proceeding and no rule, statute, or constitutional provision requires the presence of the defendant. Peterson v. State, supra; 18 Am.Jur.2d, supra, § 26, p. 493.

The trial court was correct in denying an evidentiary hearing on movant’s request for writ of error coram nobis. The judgment of the trial court should be affirmed. It is so ordered.

TITUS, C. J., and STONE, J., concur and concur in separate concurring opinion of BILLINGS, J.

BILLINGS, J., concurs in separate concurring opinion filed.

HOGAN, J., and CAMPBELL, Special Judge, dubitante.