State v. DeClue

805 S.W.2d 253, 1991 Mo. App. LEXIS 112, 1991 WL 2558
CourtMissouri Court of Appeals
DecidedJanuary 16, 1991
DocketNo. 16548
StatusPublished
Cited by5 cases

This text of 805 S.W.2d 253 (State v. DeClue) 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
State v. DeClue, 805 S.W.2d 253, 1991 Mo. App. LEXIS 112, 1991 WL 2558 (Mo. Ct. App. 1991).

Opinion

FLANIGAN, Chief Judge.

A jury found defendant Benjamin De-Clue guilty of incest, § 568.020,1 and he was sentenced to two years’ imprisonment. Defendant appeals.

The victim of the offense was defendant’s 12-year-old daughter Michelle. Since defendant does not challenge the sufficiency of the evidence to support the conviction, it is unnecessary to describe the sordid events in detail. On March 3, 1987, the date charged in the information, defendant had sexual intercourse with Michelle at the family home. Michelle testified to other incidents involving sexual intercourse between her and the defendant.

Defendant’s first point is that the trial court erred in refusing to accept a plea agreement entered into by the prosecutor and the defense, and further erred “in failing to place the matter on record stating on the record his refusal of same and failing to advise defendant in open court that the court determined itself not bound by the agreement and the reasons therefor and in interfering with the second subsequent agreement and in failing to reconsider said agreement prior to trial.”

On January 23, 1989, several months pri- or to the trial, defense counsel informed the court of the particulars of a plea agreement which the defense had reached with the prosecutor. However, at that hearing defense counsel also informed the court that there “will not be a plea today, not because of myself or the defendant, but I am advised by the prosecutor that he is withdrawing the recommendation.” The [255]*255prosecutor then stated, “The record can show that the state is withdrawing its recommendation,” to which defense counsel replied, “Okay.”

On the morning of the trial, May 30, 1989, defendant presented to the court a piece of paper bearing this handwritten memorandum: “Ben DeClue — SIS felony— 566.100 Class D felony, one year court supervised probation, family counseling by licensed clinical psychologist approved by the court from outside the Crawford, Dent and Phelps County area, defendant shall pay court costs.” This writing bears the signatures of prosecuting attorney Martin Mazzei and defense counsel. The prosecutor’s signature is dated November 29, 1988.

Referring to the handwriting, defense counsel informed the court, “It would be the intentions of defendant this morning to enter a negotiated plea under the conditions that I have set forth in this respondent’s Exhibit A. It’s a signed plea agreement by myself, the prosecutor and the defendant in this case to the charges for which this defendant, the court intends to place it on trial. So this morning I am submitting the defendant’s plea again.” Defense counsel also told the court that the court “previously indicated it would not accept a plea in this case, not of guilty on a negotiated plea basis with the prosecutor.” The court stated: “The court is refusing to accept the plea agreement as negotiated between you and Mr. Martin Mazzei, who was the prosecuting attorney.” At the trial the state was represented by prosecuting attorney Randall Head who had replaced Mazzei.

Rule 24.02(d) provides, in pertinent part:
“2. If a plea agreement has been reached by the parties, the court shall, on the record, require the disclosure of the agreement in open court or, on a showing of good cause, in camera, at the time the plea is offered. Thereupon the court may accept or reject the agreement, or may defer its decision as to the acceptance or rejection until there has been an opportunity to consider the presentenee report.
“4. If the court rejects the plea agreement, the court shall, on the record, inform the parties of this fact, advise the defendant personally in open court or, on a showing of good cause, in camera, that the court is not bound by the plea agreement, afford the defendant the opportunity to then withdraw his plea, ...”

Rule 24.02(d)2 provides that “the court may accept or reject the agreement.” Rule 24.02(d)4 provides that if the court rejects the plea agreement the court shall, on the record, inform the parties of that fact and afford the defendant an opportunity to withdraw his plea. Here the court rejected the agreement and informed the defendant in open court of the rejection. The case proceeded to trial on a plea of not guilty. Nothing in Rule 24.02 required the court to inform the defendant of its reason for rejecting the plea agreement.

Defendant cites no case holding that the trial court had a duty to accept the plea agreement. Defendant cites no ease holding that a court may accept a plea agreement after the state has withdrawn from such an agreement.

Rule 11(e) of the Federal Rules of Criminal Procedure, dealing with plea agreement procedure, is the counterpart to Rule 24.02(d). With minor differences not material here, the two rules are essentially the same. Under the federal rule, a defendant has no right to have a plea bargain accepted, United States v. Carrigan, 778 F.2d 1454, 1465 (10th Cir.1985), “the district court is under no duty to approve a negotiated plea agreement,” United States v. Randahl, 712 F.2d 1274, 1275 (8th Cir.1983), and “a district court is under no duty to consider a negotiated plea agreement.” United States v. Moore, 637 F.2d 1194, 1196 (8th Cir.1981); United States v. Petty, 600 F.2d 713, 713-714 (8th Cir.1979).

In United States v. Severino, 800 F.2d 42, 45 (2d Cir.1986), the court said:

“While Rule 11(e)(2) expressly provides that if a plea agreement calls for the government to move for dismissal of other charges, ‘the court may accept or reject the agreement,’ Rule 11 does not [256]*256purport to establish criteria for the acceptance or rejection of a plea agreement. ‘Such a decision is left to the discretion of the individual trial judge.’ Advisory Committee Note to Fed.R. Crim.P. 11. See H.R.Rep. No. 247, 94th Cong., 1st Sess. 6, reprinted in 1975 U.S.Code Cong. & Ad.News 674, 678 (‘The procedure is not mandatory; a court is free not to permit the parties to present plea agreements to it,’); United States v. Bean, 564 F.2d 700, 702 (5th Cir.1977) (‘The drafters of the Rule intended for the judge to retain discretion in accepting plea bargains.’).”

Speaking of the plea agreement procedure contained in Federal Rule 11(e), a distinguished authority has said:

“It is important to note immediately what Rule 11(e) does not do. It does not make plea bargaining mandatory. It is obvious that no defendant can be obliged to enter into plea negotiations. It is less obvious, but quite firmly settled, that the prosecutor cannot be required to enter into negotiations of this kind. Defendant has no constitutional right to have the prosecutor bargain.

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Cite This Page — Counsel Stack

Bluebook (online)
805 S.W.2d 253, 1991 Mo. App. LEXIS 112, 1991 WL 2558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-declue-moctapp-1991.