Kammer v. State

748 S.W.2d 844, 1988 Mo. App. LEXIS 386, 1988 WL 18910
CourtMissouri Court of Appeals
DecidedMarch 8, 1988
DocketNos. 53112, 53135
StatusPublished
Cited by1 cases

This text of 748 S.W.2d 844 (Kammer 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
Kammer v. State, 748 S.W.2d 844, 1988 Mo. App. LEXIS 386, 1988 WL 18910 (Mo. Ct. App. 1988).

Opinion

KELLY, Judge.

Walter Kammer appeals the denial of his Rule 27.26 motion for post-conviction relief after an evidentiary hearing. We affirm.

Appellant was indicted in January 1980 on five counts of sodomy and two counts of sexual abuse. Represented by court appointed counsel, he subsequently entered pleas of guilty to all counts. In October 1980, the trial court sentenced appellant to fifteen years imprisonment for each of the five counts of sodomy, and five years imprisonment for each of the two counts of sexual abuse, all terms to be served concurrently. Appellant came before the parole board in October 1986. The parole board decided that he should not be released from prison until October 1991.

In December 1986, appellant filed a pro se motion to vacate, set aside or correct his sentence pursuant to Supreme Court Rule 27.26. He alleged that his guilty plea was invalid because he was not “aware of actual sentencing possibilities.” The attorney later appointed to represent appellant on his postconviction motion filed no amendment to the motion. The motion court granted appellant an evidentiary hearing on his pro se motion. After testimony from appellant and his trial counsel, the motion court issued its findings of fact and conclusions of law and denied appellant’s requested relief.

The motion court’s findings of fact included:

4) That movant’s factual basis for the present proceeding is that he ‘wants a little time cut’ ... by the Board of Probation and Parole from his present release date.
5) That movant’s only substantial complaint is that he has done everything asked of him by the Department of [846]*846Corrections and he wants parole consistent with what he perceives to be a fair number of years toward his sentence, as opposed to what the Board of Probation and Parole has determined his release date may be.
6) The record of movant’s plea shows that movant’s plea was given voluntarily, intelligently and with a full understanding of the charge and range of punishment. The plea transcript further shows that Counsel had given accurate and full advice and that a factual and legal basis existed for Mr. Kammer’s plea.
7) Mr. Kammer’s attorney discussed with him Missouri’s nine-twelfths statute but made no promise as to what amount of time Kammer would serve.

Based on the foregoing, the motion court concluded that movant’s allegations were not properly cognizeable under Rule 27.26 because the gravamen of his motion addressed no error arising under his plea of guilty, but, rather, addressed the failure of the Board of Probation and Parole to grant him parole. On appeal, our review is limited to determining whether the findings, conclusions and judgment of the motion court are clearly erroneous Rule 27.26(j); Richardson v. State, 719 S.W.2d 912, 915[1] (Mo.App.1986). The court’s findings and conclusions are clearly erroneous only if a review of the entire record leaves this court with a definite and firm impression that a mistake has been made. Richardson, 719 S.W.2d at 915[1].

Appellant asserts that his guilty plea was involuntary because his counsel and the prosecuting attorney misled him into believing that he would serve only eight years. Appellant attacks his guilty plea as both involuntary and not intelligent. A guilty plea must be voluntary and intelligent to be valid Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 1711[1], 23 L.Ed.2d 274, 279 (1969); Marlatt v. State, 672 S.W.2d 165, 167[1] (Mo.App.1984). While defendant’s belief of an anticipated sentence is necessarily subjective, the test to be applied in determining the voluntariness of a guilty plea alleged to be the result of mistake or misapprehension is whether there is a reasonable basis in the guilty plea record for defendant to have such a belief. Beattie v. State, 603 S.W.2d 42, 45[4] (Mo.App.1980).

The following colloquy occurred among appellant, his trial counsel and the court at the hearing on appellant’s plea:

COURT: Mr. Horwitz, what did you tell him was the range of punishment on these seven counts?
COUNSEL: I told him that the range of count one — well, on the sodomy counts was up to fifteen years but the minimum was five. I told him that on the class D, of the two counts of the class D that he could get a day or a year or up to five years.
COURT: And you understand that, Mr. Kammer, you understand that the range of punishment if they were all strung out consecutively would amount to 80 years?
COUNSEL: 85 years.
COURT: 85 years. You understand that if the sodomy counts was fifteen years, the counts of sodomy and the devial [sic] sexual intercourse and the others they will total 85 years; you understand that? You have to answer yes or no.
APPELLANT: Yes.

The court then told appellant that he would impose a sentence of no more than fifteen years. Appellant was asked twice whether he understood this and both times be answered in the affirmative. The court asked appellant whether he was under the influence of drugs or alcohol at the moment and appellant stated that he was not.

Any mistaken belief that appellant may have had concerning the range of punishment, however reasonable, was disabused by the trial court’s detailed discussion of the sentence to be imposed. See McMahon v. State, 569 S.W.2d 753, 758[6] (Mo. banc 1978). At the time of his plea, appellant was made aware of and acknowledged his understanding of the full range of punishment.

[847]*847Nothing m the evidentiary hearing on the 27.26 motion lessens our belief that appellant’s guilty plea was voluntarily made. At the evidentiary hearing, appellant’s trial counsel was asked whether he made any promises to appellant regarding how much time appellant would actually serve. Counsel responded as follows:

Again, I don’t think the word ‘promise’ would be appropriate. Walter did ... make the statement that fifteen years is a long time. I then told him that well, fifteen years is not fifteen years ... I told him at that point I believe it was 9/12ths. That’s the way they counted time in prison. It would not be a full fifteen years ... I did not promise him any specific time because I could not promise him any specific time.

When asked whether he expressed an opinion to appellant concerning the length of his prison term, counsel answered:

I probably did. Again, I don’t remember the exact thing, but I would not be surprised if Walter didn’t say, well, what do you think, how much time do you think I would do on this and I said, well, if we count it up with 9/12ths, then you can expect to do this and parole considerations, taking those into account, you may not even do that, but I don’t think that I promised that to him. (emphasis added)

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Related

Stevens v. State
770 S.W.2d 496 (Missouri Court of Appeals, 1989)

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Bluebook (online)
748 S.W.2d 844, 1988 Mo. App. LEXIS 386, 1988 WL 18910, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kammer-v-state-moctapp-1988.