Spencer v. State

776 S.W.2d 428, 1989 Mo. App. LEXIS 1244, 1989 WL 99498
CourtMissouri Court of Appeals
DecidedAugust 29, 1989
DocketNo. 15953
StatusPublished
Cited by5 cases

This text of 776 S.W.2d 428 (Spencer 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
Spencer v. State, 776 S.W.2d 428, 1989 Mo. App. LEXIS 1244, 1989 WL 99498 (Mo. Ct. App. 1989).

Opinion

CROW, Presiding Judge.

This is an appeal by Troy Lynn Spencer (“appellant”) from a judgment denying his first amended motion under Rule 27.26, Missouri Rules of Criminal Procedure (18th ed. 1987),1 to vacate his conviction and 15-year prison sentence for the class B felony of sodomy, § 566.060, RSMo Cum.Supp. 1984. The conviction resulted from appellant’s plea of guilty.

In denying relief the circuit court (“the motion court”) conducted no evidentiary hearing but did take into account the transcript of the proceeding at which appellant entered the plea of guilty, together with the transcripts of three subsequent proceedings that ultimately resulted in execution of the sentence appellant attacks. The judge who conducted those four proceed-[429]*429tags was the Honorable Anthony J. Heck-emeyer.

Appellant’s brief presents one point:

“The motion court clearly erred in denying appellant’s motion for post-conviction relief without granting an evidentia-ry hearing pursuant to Rule 27.26(e) on the issue of whether appellant was denied a fair and impartial judge during his guilty plea and sentencing because the record leaves a firm conviction that a mistake has been made in entering such judgment in that appellant pleaded factual allegations that ... Judge [Heckemeyer] was influenced by powerful persons, this fact was not refuted by the record as the transcript of the sentencing proceedings contained repeated references by the sentencing judge to powerful people and powerful interests who wanted appellant ‘put away.’ ”

On June 28, 1985, an information was filed charging appellant with sodomy. On August 8, 1985, appellant, his lawyer,2 and the prosecutor appeared before Judge Heckemeyer. Because of appellant’s hypothesis of error it is necessary to set forth extensive excerpts from the transcript of that proceeding and later proceedings. The transcript of the August 8, 1985, proceeding shows:

“The Court: ... On 7-25-85 you ... entered a plea of not guilty. I am advised today that you wish to change that plea to guilty; is that correct?
[Appellant]: That’s right.
The Court: When we first discussed this, I advised you that I had handled your case in the Juvenile Court; do you remember that?
[Appellant]: Yes, sir.
The Court: We did not have an eviden-tiary hearing at that time. Do you have any objection to me handling the case? I don’t think I have any disqualifying knowledge of you other than the treatment program that you voluntarily entered into through that program, but if there is any problem, you certainly have the right for me to step down. I don’t care either way.
[Appellant]: Your Honor, I am satisfied that your judgment would be just, and I hope merciful, and I am willing to lay down some of the things that might be preceded with in order to arrive at some final condition.
The Court: The Court finds that basically there was no evidentiary hearing of any kind. The Court had an ongoing juvenile file case which still is ongoing and Mr. Spencer is in treatment in that or in family counseling in that program. I find nothing disqualifying about that, but I certainly want to put it on the record and give Mr. Spencer every opportunity to have another judge appointed if he wanted.
Based on his statements that he does not want to, do you have any problem with that, Counsel?
[Appellant’s lawyer]: No, sir; I do not, so long as Mr. Spencer is satisfied, I am satisfied.”

Judge Heckemeyer began explaining to appellant the procedure for entering the plea. This colloquy ensued:

“The Court: How old are you?
[Appellant]: 35.
The Court: You are married and you have one child?
[Appellant]: Two children, sir.
The Court: What do you do for a living?
[Appellant]: I work as a hearing aid fitter.
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The Court: How far in school did you go?
[Appellant]: I have nearly two years of college.
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The Court: Has [your lawyer] done what you have asked him to do?
[Appellant]: Yes, Your Honor.
The Court: Is there anything you have asked him to do that he has not done?
[Appellant]: No, Your Honor.
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[430]*430The Court: Are you satisfied with his work?
[Appellant]: Yes, sir.
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The Court: Has anyone threatened you, harmed you or mistreated you or any member of your family in any way to get you to make this plea?
[Appellant]: No, Your Honor.
The Court: Do you make the plea of your own free will because you did the things that you are charged with?
[Appellant]: Yes, Your Honor.
The Court: Mr. Prosecutor, let me have the facts as you believe they would be presented in the event of a trial....
[Prosecutor]: Judge, during the month of January, 1985, I believe in particular on January 21, Mr. Spencer subjected [the female victim] to deviate sexual intercourse by having her perform oral sex on him, [she] being less than 14 years of age.
The Court: You heard the statement of the prosecutor. Is that statement substantially correct?
[Appellant]: Substantially correct, Your Honor.
The Court: ... is there a plea bargain?
[Prosecutor]: No, sir.
The Court: Do you understand it is an open plea? There is no recommendation to this Court; do you understand that?
[Appellant]: Your Honor, I did understand through my attorney that with a plea of guilty, that the prosecutor ... had no objection to probation being exercised.
The Court: Basically, I think that’s what an open plea is.
[Prosecutor]: It really depends on what the P.S.I. shows and his efforts and progress in dealing with Mr. David Brown at the Farmington State Hospital. I have no idea what those things are going to show at this time.
The Court: I think normally an open plea, the prosecutor stands blank. There is a P.S.I. I presume you understand what that is, a presentence investigation done by the Division of Probation and Parole, and they will make a recommendation. But as to the plea bargain, do you understand what a plea bargain is?
[Appellant]: Well, I didn’t, but I do now.
The Court: If a plea bargain is offered the Court, I can accept it or refuse it. I am not bound by it.

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966 S.W.2d 337 (Missouri Court of Appeals, 1998)
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918 S.W.2d 921 (Missouri Court of Appeals, 1996)
Tettamble v. State
798 S.W.2d 489 (Missouri Court of Appeals, 1990)
Spencer v. State
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Luster v. State
795 S.W.2d 109 (Missouri Court of Appeals, 1990)

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Bluebook (online)
776 S.W.2d 428, 1989 Mo. App. LEXIS 1244, 1989 WL 99498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spencer-v-state-moctapp-1989.