Swink v. State

505 S.W.2d 45, 1974 Mo. LEXIS 655
CourtSupreme Court of Missouri
DecidedFebruary 11, 1974
DocketNo. 57631
StatusPublished

This text of 505 S.W.2d 45 (Swink v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Swink v. State, 505 S.W.2d 45, 1974 Mo. LEXIS 655 (Mo. 1974).

Opinion

DONNELLY, Chief Justice.

Appellant was charged in the Circuit Court of the City of St. Louis with the robbery of Robert Miller on August 16, 1970, and with the robbery of Gerald Paluszek on August 22, 1970.

On October 1, 1970, appellant entered pleas of guilty and was sentenced to six years on each charge with the sentences to run concurrently.

On June 7, 1971, appellant filed in the Circuit Court of the City of St. Louis his motion to vacate under Rule 27.26, V.A. M.R., and an evidentiary hearing was held on October 22, 1971. The motion to vacate was denied and an appeal to this Court followed.

The appeal having been taken to this Court prior to January 1, 1972, the effective date of new Article V of the Constitution, we have jurisdiction pursuant to then Article V, § 3 of the Missouri Constitution, V.A.M.S.

Appellant first asserts that the trial court erred in finding that appellant “fully explained the facts of his case to his attorney.”

At the evidentiary hearing, appellant testified as follows:

“Q Did you discuss with your attorney the facts of the charges that were brought against you? A After he told me that an attorney would be appointed for me he asked would five years be too much.
“Q Now, I will get to that. What I want to know is, Was that the first thing that he talked about the case was the amount of time ?
“A No, it wasn’t.
“Q Did he ask you what happened or did he go over the charges? A Yes, he asked what happened in the case, you know, and I explained it to the best of my knowledge what had happened on both charges.”

Appellant next asserts that the trial corn '' erred in finding that appellant “was not threatened by the Circuit Attorney of St. Louis.”

[46]*46At the evidentiary hearing, appellant testified as follows:

“Q Did Mr. Ryan talk to you about your case?
“A Yes, he did.
“Q Was this in the presence of Mr. Hubei ?
“A He did.
“Q Was the sheriff also there? A He was.
“Q What did Mr. Ryan indicate to you? Did he say anything to you, that you could get a lot more punishment than what he might offer?
“A Yes, he did.
“Q What did he say you were faced with ? A I forget what he said. It was marked more than six. I think it was either eight or twelve, one of the two.
“Q What did that indicate to you when he said the case was marked? A That meant this is what the State — the least amount of time the State had recommended for me to get.
“Q Did Mr. Ryan make any threats or inducements to you that if you didn’t take the recommendation, he would ask for the maximum penalty?
“A What he said a little later on in our discussion, he told me — he said, ‘You don’t have to take anything.’ He said, ‘You can go to trial on both of them.’ He said, ‘You will probably plead one and you are going to lose the other one.’
“Q Let me ask you, What did you feel as you were sitting there with Mr. Hubei, with the Circuit Attorney himself interviewing you, in the accepting a plea of guilty on a reduced amount of years?
“A I just felt he was telling me the truth.
“Q So you felt that the man wasn’t' trying to force you into pleading guilty, that he was trying to explain the facts of life to you?
“A In a sense he was telling me the State’s recommendation was a lot less than what I would have got if I had gone to trial with it.
“Q Now, did Mr. Hubei join in with this discussion with the Circuit Attorney? A No, he didn’t.
“Q How long did this discussion take place there in that room? A Approximately fifteen' — twenty minutes.
“Q Did the Circuit Attorney say anything to you that if you didn’t accept a lesser amount of years than what their file was marked for, that they were going to see to it that you would get more? Did they ever?
“A Yes, he did.
“Q Did he ever threaten you with that? A Yes, he did.
“Q Was that in Mr. Hubei’s presence? A Yes.
“Q Were you scared at that time? A I was scared from the beginning, really, from what the police officers had told me.
“Q So after this discussion was there an offer made to you if you would plead guilty as to what the Circuit Attorney would recommend? Was there an offer made in your presence ?
“A Yes, I believe it was eight years. But, anyway, after talking and discussing we finally got down to six.
“Q What did you say when they got down to six?
“A I told him that I would plead guilty for six years running concurrently on both charges.”

Appellant next asserts that the trial court erred in finding that “appellant stated he had no defenses to the charge.”

[47]*47At the evidentiary hearing, appellant testified as follows:

“Q All right. Now, can you tell us any other matters that you want to bring up at this time to the Judge? Now is the time.
“A The fact that my plea of guilty was just to get the six years to keep from getting any more. I was just scared getting any more time.
“Q Well, did you feel — I will get back to that again — did you feel at the time that you pleaded guilty and accepted the six years that you had possibility of some good defenses to the charges, that you were not guilty of them?
“A I didn’t have any. I didn’t have any defense, just the fact that, well, with my record it would just be my word against these guys’ word and probably would have ended up, what would happen, I would have been found guilty.”

Appellant finally asserts that the trial court erred “in making no finding regarding the representation afforded appellant when the evidence showed that in fact appellant’s attorney afforded appellant no representation whatsoever.”

The findings of the trial court read, in part, as follows:

“The Court finds that the defendant conferred with his attorney, George Hu-bei, a member of the Public Defender’s office, on the day that he was to be arraigned; that he explained fully to his attorney the facts in the matter.

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Related

Crosswhite v. State
426 S.W.2d 67 (Supreme Court of Missouri, 1968)

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Bluebook (online)
505 S.W.2d 45, 1974 Mo. LEXIS 655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swink-v-state-mo-1974.