McAnulty v. State

766 S.W.2d 749, 1989 Mo. App. LEXIS 210, 1989 WL 11864
CourtMissouri Court of Appeals
DecidedFebruary 16, 1989
DocketNo. 15889
StatusPublished
Cited by1 cases

This text of 766 S.W.2d 749 (McAnulty 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
McAnulty v. State, 766 S.W.2d 749, 1989 Mo. App. LEXIS 210, 1989 WL 11864 (Mo. Ct. App. 1989).

Opinion

HOGAN, Judge.

Pursuant to a plea bargain, movant John Ray McAnulty (hereinafter defendant) pled guilty to a charge of second-degree burglary in violation of § 569.170, RSMo 1978. He was sentenced to imprisonment for a term of 7 years. Subsequently the defendant filed a motion pursuant to former Rule 27.26 seeking to vacate his plea on five diffusely stated grounds. Relief was denied without an evidentiary hearing. The defendant now appeals. Inasmuch as sentence was pronounced prior to January 1, 1988, and this proceeding was pending when present Rule 29.15 became effective, the appeal is governed by the provisions of former Rule 27.26. Rule 29.15(m).

The defendant has briefed a single point. Slightly paraphrased, defendant’s argument is that the trial court erred in denying relief without an evidentiary hearing because his allegation that he was coerced into his plea by his trial attorney’s refusal to take any steps preparatory to mounting a defense: a) alleges facts which would warrant relief; and b) is not refuted by the record. Essentially, defendant’s argument is that his plea was not voluntary.

There are a few general principles to be borne in mind. After sentence has been pronounced, a plea of guilty will be set aside only to correct a manifest injustice. Winford, v. State, 485 S.W.2d 43, 49 (Mo. banc 1972); Row v. State, 680 S.W.2d 418, 419 (Mo.App.1984); Moore v. State, 624 S.W.2d 520, 522[2] (Mo.App.1981). In addition, the defendant’s position is weakened by the fact that the sentence was imposed pursuant to a plea bargain, and the defendant avers no breach thereof. See McIntosh v. State, 627 S.W.2d 652, 655 (Mo.App.1981). Nor is it of controlling significance that the plea was an Alford plea. As the court stated in North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162 (1970), “[a]n individual accused of crime may voluntarily, knowingly, and understanding^ consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.” The principles which are controlling in this case are those set out in Thomas v. State, 605 S.W.2d 792, 794-95 (Mo. banc 1980), thus:

“[3,4] To be entitled to an evidentia-ry hearing on the voluntariness of a guilty plea, defendant must plead facts which if true entitle him to relief and must show that such factual allegations are not refuted by facts elicited at the guilty plea hearing. Smith v. State, 513 S.W.2d 407 (Mo. banc 1974) cert. denied, 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975). If the record conclusively establishes that the accused knowingly and voluntarily pleaded guilty, it is proper to deny an evidentiary hearing on a motion for post conviction relief based on an allegation that the guilty plea was coerced. Jackson v. State, 585 S.W.2d 495 (Mo. banc 1979).”

We have first to consider a printed “Petition to Enter Plea of Guilty” which was used in this case, apparently to insulate the plea against collateral attack to some degree. The petition was executed by the defendant’s attorney and was signed by the defendant. One of the representations contained in the petition reads thus: “6. My lawyer has counseled and advised with me on the nature of each charge, on all lesser included charges, if any, and all possible defenses that I might have in this case.” When he was examined under oath [751]*751by the trial court, the defendant stated he had “read the paper” and indicated he understood it. Although printed forms have limits, the “Petition to Enter Plea of Guilty” also contains the following representations:

“14. Neither I, nor any of my friends or loved ones, have been mistreated, threatened, coerced, or forced in any manner or by any means to get me to plead guilty, nor were there any promises, inducements, or representations made except as set forth in paragraph 13 above.1
15. I believe that my lawyer has done all that anyone could do to counsel and assist me, and I AM SATISFIED WITH THE ADVICE AND HELP HE HAS GIVEN ME.”

The trial court, as we have indicated, addressed the defendant personally in open court as required by Rule 24.02(b) and (c). A transcript of the proceeding was prepared as required by Rule 24.03. Parts of that record are material on this appeal. Preliminarily, the trial court advised the defendant not to sign the petition to plead guilty unless he understood it. In response to continued questioning, the defendant stated he could read and write, had no physical ailment which would affect his ability to understand the proceedings, was able to hear and had had no medicine or drugs within the preceding 24 hours. The defendant was 25 years of age and ordinarily worked as a truck driver. The court’s interrogation then continued thus:

******
“Q. The Defenders have represented you. I believe you have had two defenders, or has Mr. Beatty represented you since the beginning?
[DEFENDANT'S ATTORNEY]: No. Mr. Luber represented him prior to myself.
Q. (By the Court) You have had two, so the questions I will ask will concern both of them. Are you satisfied with their representation?
A. Yes, sir.
Q. Do you have any complaint concerning your representation before this Court?
A. No.
Q. Do you understand if you do, now is the proper time to raise that?
A. Yes.
Q. And you are telling me you are satisfied with their work?
A. Yes, Your Honor.
Q. Have you had an opportunity to sit down and give them all the facts that give rise to these charges?
A. Yes.
Q. And you have told them about it?
A. Yes.
Q. Have they counseled with you on the law, discussed your rights and talked with you about it?
A. Well, I read the paper.
Q. Well, the paper includes your rights. Do you have any questions about your rights?
A. No, Your Honor.
Q. Do you understand them?
A. Yes.
Q. Is there anything that you want Mr. Beatty to do that he has not done?
A. No.
Q. Is there anything that you have asked him to do that he has not done?
A. No.
Q. Is there anything you would like for me to have him do for you?

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Bluebook (online)
766 S.W.2d 749, 1989 Mo. App. LEXIS 210, 1989 WL 11864, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcanulty-v-state-moctapp-1989.