Jones v. State

502 S.W.2d 326, 1973 Mo. LEXIS 991
Supreme Court of Missouri·Decided December 10, 1973·No. No. 57137·Published·Cited by 1 cases

Opinion

WELBORN, Commissioner.

Appeal from denial of relief in proceeding to set aside judgment of conviction and sentence to life imprisonment, entered on plea of guilty to charge of murder in the first degree. Rules 27.26, 27.25, V.A.M.R.

In July, 1969, Ronald Eugene Jones, then 15 years old, was taken into custody as a juvenile in connection with the shooting to death of an off-duty policeman in a jewelry store holdup. After proceedings in the juvenile court, Jones was charged, by indictment returned in September, 1969, as an adult with murder in the first degree. Jones’s father employed attorneys to represent his son, but according to Jones, he was not satisfied with their services and in April, 1970, the father employed Mr. Lewis Pierce to represent his son. Apparently, when Pierce was employed, the case was set for trial in May, 1970. On April 23, 1970, Pierce filed motions on behalf of Jones to suppress a line-up identification and a statement which Jones had made while in custody as a juvenile. Pierce investigated the case and conferred with Jones six or seven times prior to May 4, 1970. On that date, Pierce appeared in circuit court prepared to go to trial in the case. He had previously discussed with the prosecutor what might be expected in the event Jones should enter a plea of guilty. The prosecutor indicated to Pierce that some leniency might be forthcoming if Jones would cooperate with the state in the trial of other defendants charged in the same case. Pierce transmitted the infor[328]*328mation to Jones and at Jones’s request he and Pierce met with the prosecutor, but Jones at the meeting expressed an unwillingness to cooperate with the state.

Prior to May 4, Pierce had also advised Jones and his parents that trial of the charge presented little chance of acquittal and, because of the inflammatory nature of the case, the state was prepared to request the death penalty.

When Pierce and Jones appeared for trial on May 4, the options available were again discussed and, according to Pierce, Jones concluded that he wanted to plead guilty to murder in the first degree. Jones did so on that date and a presentence investigation was ordered.

On October 2, 1970, Jones appeared in circuit court, represented by Mr. Robert Duncan, a member of the same law firm as Mr. Pierce who was out of town, and the court sentenced Jones to life imprisonment. On January 5, 1971, Jones filed a motion in the circuit court to set aside his conviction and sentence. A hearing was held on the motion and the trial court entered findings and judgment adverse to the movant.

On this appeal, appellant contends that he received inadequate assistance of counsel on his plea of guilty and that the plea was induced by representations of his attorney that he would receive a sentence of from 10 to 15 years on his guilty plea.

The inadequate assistance is premised primarily upon the failure of counsel to obtain a ruling upon the motion filed on behalf of movant to suppress the statement which he made while in juvenile custody. Appellant argues that the statement was subject to being suppressed under the holding of this court in State v. Arbeiter, 408 S.W.2d 26 (Mo. 1966).

Regardless of the merits of that position, the question is whether or not the advice and assistance which Pierce afforded mov-ant was “within the range of competence demanded of attorneys in criminal cases.” McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). The trial court concluded:

“3. Movant had the effective assistance of counsel. Prior to his appearance in this case, Mr. Lewis Pierce had extensive experience in the practice of criminal law. He met with movant and his family on many occasions, explored all possibilities of defense and made adequate investigation of the charge against movant in order to evaluate the possible courses of action. Counsel’s advice to movant, in light of his investigation, was within the range of his discretion as a competent attorney. Counsel’s analysis was not so erroneous as to constitute ineffective assistance.”

This conclusion is not clearly erroneous. Rule 27.26(j). Carpenter v. State, 479 S. W.2d 466, 468[2] (Mo.1972).

The contention regarding Pierce’s assurance of a 10 to 15-year sentence is based on the testimony of movant to that effect. Movant’s father also testified that a day or two before his son pleaded guilty, Pierce told him that he thought the best thing for Ronnie to do was plead guilty and so he said that he would probably get 10 to 12 years. Jones’s mother and brother who were in court when the plea was entered testified that before the plea, they heard Pierce assure Jones that everything would be all right and that he would get 10 to 15 years.

Pierce unequivocally denied that such assurance had been given Jones. He did testify to the dealings with the prosecutor’s office concerning leniency in return for Jones’s cooperation, as above mentioned. He also unequivocally denied that he had ever told Jones that he had talked to the sentencing judge and arrived in advance at a sentence.

On this issue, the trial court made the following finding:

“6. Movant’s counsel Mr. Pierce did discuss with movant the possibility of se[329]*329curing a reduction of the charge to a lesser degree of homicide and a sentence of a term of years in return for cooperation with the State in the prosecution of alleged co-conspirators in the murder. Movant and his counsel had several conferences with the prosecuting attorney regarding this course of action. Movant elected not to pursue this course. Other than that, counsel explained to movant that his only options were to go to trial or to plead guilty to first degree murder and hope for a sentence of life imprisonment. Counsel told movant that he would probably receive a life sentence if he entered a plea of guilty. Counsel at no time promised mov-ant that he would receive a sentence of a term of years if he pleaded guilty to murder in the first degree. Movant’s evidence indicates that counsel did tell movant just prior to the plea that he might be released on parole after a number of years served on the life term but did not promise him that he would. Movant was fully advised, prior to his plea and during his plea, as to the possible punishment for murder first degree. Note the following:

“ ‘THE COURT: I am sure your lawyer has explained to you, but I want you to tell me what you understand the range of penalty to be for the offense of murder in the first degree.
“ ‘DEFENDANT JONES: Yes.
“‘THE COURT: What is the possible penalty ?
“‘DEFENDANT JONES: For — life or death.
“‘THE COURT: And, fully understanding this, and fully understanding your right to a jury trial, you are still asking that I accept your plea of guilty ?
“‘DEFENDANT JONES: Yes/”

Here, counsel for appellant questions the trial court’s acceptance of Pierce’s testimony and rejection of the testimony of Jones and the members of his family. This was a matter to be resolved by the trial court and its finding is not clearly erroneous. Rule 27.26(j); Crosswhite v.

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Jones v. State, 502 S.W.2d 326, 1973 Mo. LEXIS 991 (Mo. 1973).

502 S.W.2d 326 (Jones v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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