Riley v. State

588 S.W.2d 738, 1979 Mo. App. LEXIS 3241
CourtMissouri Court of Appeals
DecidedOctober 9, 1979
DocketNo. 40211
StatusPublished
Cited by14 cases

This text of 588 S.W.2d 738 (Riley 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
Riley v. State, 588 S.W.2d 738, 1979 Mo. App. LEXIS 3241 (Mo. Ct. App. 1979).

Opinion

KELLY, Judge.

Gary Riley, appellant, was indicted by the Grand Jury of the City of St. Louis and charged in two separate indictments — No. 77 — 193—B and No. 77 — 194—B—with five offenses against the criminal laws of the State of Missouri. In Cause No. 77-193-B he was charged in Count I with the offense of robbery in the first degree; in Count II, armed criminal action; and in Count III, assault with intent to kill. In Cause No. 77-194 — B he was charged in Count I with the offense of robbery in the first degree and in Count II with armed criminal action.

On September 13, 1977, he, with counsel, entered pleas of guilty to the two robbery in the first degree counts, the assault with intent to kill count, and the armed criminal action count alleged in Count II of Cause No. 77-193-B. The armed criminal action count in Cause No. 77-194-B was nolle prossed by the state. On his pleas of guilty the trial court sentenced him to 17 years imprisonment in the custody of the Missouri Department of Corrections on the two robbery in the first degree counts and the assault with intent to kill count, said sentences to be served concurrently and not consecutively. On his plea of guilty to the armed criminal action count in Cause No. 77-193-B he was sentenced to a term of 3 years, said sentence to be served consecutively with the other sentences imposed at the same plea proceedings on the other charges.

On September 23, 1977, his counsel filed an appeal from the conviction on the armed criminal action count only.1

On December 1, 1977, while the appeal was still pending in this court, appellant pro se, filed a “Motion to Vacate, Set Aside, or Correct Sentence Brought Under Rule 27.-26” on the form set out in the appendix to Rule 27.26. According to this Motion the sentences appellant sought to have vacated, etc. were those imposed in the Circuit Court of the City of St. Louis in cases whose numbers were “unknown” for the offenses of “robbery, first degree; assault with intent to kill with malice; armed robbery; and two counts of armed criminal action,” for which he was sentenced on September 13, 1977, to “three seventeen year sentences, and one three year sentence running consecutive, (sic)” He failed to answer question No. 6 on the form: “Did you appeal from the judgment of Conviction?” His response to questions 7(a) and (b) inquiring to what court he had appealed and the result of such appeal and the date of the result, was “does not apply.”

The grounds stated for vacating, setting aside or correcting his convictions were: (1) that his plea was involuntary for the reason the judge threatened him prior to the guilty plea with a fifty year sentence if he did not plead guilty to the 17 years; (2) he did not knowingly and intelligently waive his right to a jury trial, to cross-examination, and confrontation of state witnesses, to compulsory process for the attendance of witnesses, to allow the state prove his guilt beyond a reasonable doubt, but that they were waived out of fear of the judge’s threats to the movant; (3) that his plea of guilty was given under coercion and duress because the trial judge had become involved against him and he had not been advised that he could file a motion to disqualify the judge; (4) that his pleas of guilty were in violation of Article I, Sections 2 and 10 of the Mis[740]*740souri Bill of Rights and the 5th, 6th and 14th amendments to the United States Constitution.

He further stated in response to question. No. 9 — “State concisely and in the same order the facts which support each of the grounds set out in (8), and the names and addresses of the witnesses or other evidence upon which you intend to rely to prove such facts” — that:

(a) Movant will testify that his lawyer told him bluntly that [the judge] stated and told him that if the movant did not take the 17 years, that [the judge] would give the movant 50 years;
(b) Movant will testify that he appeared and answered questions accordingly because he was scared of [the judge]; and
(c) The movant will testify that as the result of the statements, the movant entered his plea of guilty; and that movant was scared of what action [the judge] would take if the movant would not cooperate and plead.

The Motion was not verified as required by Rule 27.26(c).

Simultaneously with the filing of his 27.-26 Motion, appellant filed an “Application for Disqualification of Judge.” This latter motion was sustained and the cause assigned to another judge of the Circuit Court of the City of St. Louis.

On December 13, 1977 the Circuit Judge to whom the Motion had been assigned entered an order including findings of fact and conclusions of law denying appellant’s Rule 27.26 Motion, after ruling that he was not entitled to the assistance of counsel or to an evidentiary hearing thereon. This order noted that neither the Motion nor the forma pauperis affidavit filed by appellant was notarized and that this alone was grounds warranting its dismissal. It further recited that the transcript of the plea proceedings refuted the allegations of appellant concerning threats made to him by the sentencing judge, that he did not knowingly and intelligently waive those constitutional rights referred to in his Motion, and that the other allegations of his Motion neglected to allege specific facts, but rather alleged mere conclusions. Appellant’s Motion was “dismissed with prejudice.”

On January 3, 1978, appellant filed an application for appointment of counsel, for an appeal, for leave to appeal in forma pauperis, and for allowance of a transcript in forma pauperis. On the same date the trial court filed an order giving an additional reason for overruling defendant’s 27.26 Motion, granting defendant leave to appeal in forma pauperis, and appointing an attorney to represent him on appeal.

The “additional reason for overruling defendant’s 27.26 Motion” was the pending appeal from the judgment in Cause No. 77-193-B, in violation of the provisions of Rule 27.26(b)(2).

On March 2,1978, appellant filed a Notice of Appeal “from the judgment” denying his 27.26 Motion for a hearing on his convictions in Causes Nos. 77-193-B and 77-194-B entered on the 27th day of December, 1977. Later, on March 13, 1978, appellant filed a Motion for Special Order to File a Late Notice of Appeal in this court. While this Motion was pending, on March 20, 1978, appellant filed a second 27.26 Motion directed against the judgment and sentence imposed in Cause No. 77 — 193—B on the armed criminal action charge from which he had appealed. In this Motion appellant alleged that the appeal on that charge had been dismissed and admitted that the trial court was correct in dismissing his prior 27.26 Motion on the grounds that an appeal was pending on the armed criminal action judgment.

On March 27, 1978, this court sustained appellant’s Motion to File a Late Notice of Appeal from the judgment denying his 27.-26 Motion entered on December 27, 1977, and allowed him 10 days to file the Notice. This late Notice of Appeal was filed on March 28, 1978.

On March 30, 1978, the trial court denied appellant’s second 27.26 Motion filed on March 20,1978, for the same reasons it had overruled the prior 27.26 Motion, and for the further reason that it was foreclosed because the ground presented therein had [741]*741been raised in the earlier 27.26 Motion. Appellant filed a Notice of Appeal from this judgment on March 31, 1978.

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Cite This Page — Counsel Stack

Bluebook (online)
588 S.W.2d 738, 1979 Mo. App. LEXIS 3241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/riley-v-state-moctapp-1979.