GUNN, Judge.
On January 20,1975, movant, hereinafter defendant, entered a plea of guilty to two counts of robbery in the first degree with a dangerous and deadly weapon. He received a sentence of 13 years on each count to run concurrently. On October 2, 1975, the defendant filed a motion pursuant to Rule 27.26 to vacate the judgment and sentence. The trial court overruled the motion without a hearing. In its memorandum opinion, the trial court stated:
“Defendant’s Motion to Vacate Judgment pursuant to Supreme Court Rule 27.26 is denied. Court finds Rule 25.04 was complied with by the sentencing judge and further finds that the Motion, files and records of the case conclusively show that the prisoner is entitled to no relief pursuant to Rule 27.26(e).”
The defendant appeals from the adverse ruling claiming: 1) his plea of guilty was the product of duress and coercion resulting from the sentencing judge’s involvement in plea bargain discussions; and 2) the trial court erred in denying a hearing on his 27.26 motion. We affirm.
The defendant contends that his plea of guilty to the two counts of robbery in the first degree was a product of coercion and duress brought about by the sentencing judge’s involvement in the plea bargaining process. As a result of plea bargaining, it was agreed that by pleading guilty the defendant would receive two fourteen year sentences to run concurrently.
In addition, it was understood that an attempt would be made to obtain the defendant's release from the balance of a seven month federal sentence still to be served. The record of the defendant’s guilty plea indicates that the trial court had been involved in formulating
the plea agreement. For example, at one point the judge said: “Because of plea negotiations between yourself, your lawyer, me and the Prosecuting Attorney, I am going to sentence you to two 14 year sentences and run them concurrent . . . .”
At another point in the hearing the judge stated:
“This case, as you know, is assigned out for trial; you wanted five years, the State wanted twenty and we have agreed and negotiated on this fourteen years.
. I have cut the State six years and I have raised what you wanted a few years, and this is a sort of compromise between you, your lawyer and myself.”
The defendant claims that by injecting himself in the plea negotiations, the judge had placed the power of the court behind the agreement and could no longer be impartial. The defendant contends that the coercive effect of the judge’s participation was compounded by the defendant’s awareness that the judge could impose a more severe sentence if he stood trial, by the judge’s acknowledging the State had a strong case against him and by the judge’s comment that the defendant was “in a bunch of trouble because this is a serious armed robbery and you have a bunch of prior felonies.” The defendant claims that as a result of both these direct and subtle pressures exerted by the judge, his plea of guilty was involuntary and should be vacated.
The Missouri Supreme Court has stated that ordinarily a judge should not participate in plea discussions and that these negotiations should normally be limited to the defendant’s counsel and the prosecutor.
State v. Tyler,
440 S.W.2d 470 (Mo. banc 1969).
The court quoted with approval the following portion of the American Bar Association’s “Standard Relating to Pleas of Guilty”:
“3.3 Responsibilities of the trial judge.
(a) The trial judge should not participate in plea discussions.
(b) If a tentative plea agreement has been reached which contemplates entry of a plea of guilty * * * in the expectation that other charges before that court will be dismissed or that sentence concessions will be granted, upon request of the parties the trial judge may permit the disclosure to him of the tentative agreement and the reasons therefor in advance of the time for tender of the plea. He may then indicate to the prosecuting attorney and defense counsel whether he will concur in the proposed disposition if the information in the pre-sentence report is consistent with the representations made to him. If the trial judge concurs, but later decides that the final disposition should not include the charge or sentence concessions contemplated by the plea agreement, he shall so advise the defendant and then call upon the defendant to either affirm or withdraw his plea of guilty * * *.”
State v. Tyler,
supra at 474. See also
Bonner v. State,
535 S.W.2d 289 (Mo.App.1976).
The commentary relating to these standards reflects the A.B.A.’s disapprobation of a judge becoming involved with the actual plea negotiations. A comment to paragraph 3.3(b) states:
“[t]his procedure . . . does not contemplate participation by the judge in the plea discussions. The judge only becomes involved after the parties have reached agreement, and thus there would appear to be little basis upon which the defendant or counsel could conclude that the judge is attempting to force a certain result upon the parties. Moreover, the judge does not initiate the conference; he is brought into the matter prior to tender of the plea only upon the request of the parties.” “Standards Relating to Pleas of Guilty” at 75.
It is clear from the record before us that the sentencing judge’s conduct did not conform to the standards set out by the American Bar Association and which were approved by the Supreme Court in
State v. Tyler,
supra. From the judge’s own statements it appears that he did not merely approve a tentative agreement submitted by the prosecutor and defense attorney, but, rather, actively participated in the plea negotiations.
While we cannot approve of the judge’s conduct, the fact that he participated in the bargaining does not end our inquiry into the voluntariness of the defendant’s plea of guilty, which, is the essential matter at issue.
U. S. ex rel. Robinson
v.
Housewright,
525 F.2d 988 (7th Cir. 1975);
State v. Tyler,
supra. We must determine the coercive effect, if any, this participation had upon the defendant’s decision to plead guilty in light of all the circumstances surrounding his plea.
U. S. ex rel. Robinson v. Housewright,
supra;
State v. Tyler,
supra.
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GUNN, Judge.
On January 20,1975, movant, hereinafter defendant, entered a plea of guilty to two counts of robbery in the first degree with a dangerous and deadly weapon. He received a sentence of 13 years on each count to run concurrently. On October 2, 1975, the defendant filed a motion pursuant to Rule 27.26 to vacate the judgment and sentence. The trial court overruled the motion without a hearing. In its memorandum opinion, the trial court stated:
“Defendant’s Motion to Vacate Judgment pursuant to Supreme Court Rule 27.26 is denied. Court finds Rule 25.04 was complied with by the sentencing judge and further finds that the Motion, files and records of the case conclusively show that the prisoner is entitled to no relief pursuant to Rule 27.26(e).”
The defendant appeals from the adverse ruling claiming: 1) his plea of guilty was the product of duress and coercion resulting from the sentencing judge’s involvement in plea bargain discussions; and 2) the trial court erred in denying a hearing on his 27.26 motion. We affirm.
The defendant contends that his plea of guilty to the two counts of robbery in the first degree was a product of coercion and duress brought about by the sentencing judge’s involvement in the plea bargaining process. As a result of plea bargaining, it was agreed that by pleading guilty the defendant would receive two fourteen year sentences to run concurrently.
In addition, it was understood that an attempt would be made to obtain the defendant's release from the balance of a seven month federal sentence still to be served. The record of the defendant’s guilty plea indicates that the trial court had been involved in formulating
the plea agreement. For example, at one point the judge said: “Because of plea negotiations between yourself, your lawyer, me and the Prosecuting Attorney, I am going to sentence you to two 14 year sentences and run them concurrent . . . .”
At another point in the hearing the judge stated:
“This case, as you know, is assigned out for trial; you wanted five years, the State wanted twenty and we have agreed and negotiated on this fourteen years.
. I have cut the State six years and I have raised what you wanted a few years, and this is a sort of compromise between you, your lawyer and myself.”
The defendant claims that by injecting himself in the plea negotiations, the judge had placed the power of the court behind the agreement and could no longer be impartial. The defendant contends that the coercive effect of the judge’s participation was compounded by the defendant’s awareness that the judge could impose a more severe sentence if he stood trial, by the judge’s acknowledging the State had a strong case against him and by the judge’s comment that the defendant was “in a bunch of trouble because this is a serious armed robbery and you have a bunch of prior felonies.” The defendant claims that as a result of both these direct and subtle pressures exerted by the judge, his plea of guilty was involuntary and should be vacated.
The Missouri Supreme Court has stated that ordinarily a judge should not participate in plea discussions and that these negotiations should normally be limited to the defendant’s counsel and the prosecutor.
State v. Tyler,
440 S.W.2d 470 (Mo. banc 1969).
The court quoted with approval the following portion of the American Bar Association’s “Standard Relating to Pleas of Guilty”:
“3.3 Responsibilities of the trial judge.
(a) The trial judge should not participate in plea discussions.
(b) If a tentative plea agreement has been reached which contemplates entry of a plea of guilty * * * in the expectation that other charges before that court will be dismissed or that sentence concessions will be granted, upon request of the parties the trial judge may permit the disclosure to him of the tentative agreement and the reasons therefor in advance of the time for tender of the plea. He may then indicate to the prosecuting attorney and defense counsel whether he will concur in the proposed disposition if the information in the pre-sentence report is consistent with the representations made to him. If the trial judge concurs, but later decides that the final disposition should not include the charge or sentence concessions contemplated by the plea agreement, he shall so advise the defendant and then call upon the defendant to either affirm or withdraw his plea of guilty * * *.”
State v. Tyler,
supra at 474. See also
Bonner v. State,
535 S.W.2d 289 (Mo.App.1976).
The commentary relating to these standards reflects the A.B.A.’s disapprobation of a judge becoming involved with the actual plea negotiations. A comment to paragraph 3.3(b) states:
“[t]his procedure . . . does not contemplate participation by the judge in the plea discussions. The judge only becomes involved after the parties have reached agreement, and thus there would appear to be little basis upon which the defendant or counsel could conclude that the judge is attempting to force a certain result upon the parties. Moreover, the judge does not initiate the conference; he is brought into the matter prior to tender of the plea only upon the request of the parties.” “Standards Relating to Pleas of Guilty” at 75.
It is clear from the record before us that the sentencing judge’s conduct did not conform to the standards set out by the American Bar Association and which were approved by the Supreme Court in
State v. Tyler,
supra. From the judge’s own statements it appears that he did not merely approve a tentative agreement submitted by the prosecutor and defense attorney, but, rather, actively participated in the plea negotiations.
While we cannot approve of the judge’s conduct, the fact that he participated in the bargaining does not end our inquiry into the voluntariness of the defendant’s plea of guilty, which, is the essential matter at issue.
U. S. ex rel. Robinson
v.
Housewright,
525 F.2d 988 (7th Cir. 1975);
State v. Tyler,
supra. We must determine the coercive effect, if any, this participation had upon the defendant’s decision to plead guilty in light of all the circumstances surrounding his plea.
U. S. ex rel. Robinson v. Housewright,
supra;
State v. Tyler,
supra. The critical issue is whether the plea of guilty was in fact voluntarily made with understanding of the nature of the charge.
Flood v. State,
476 S.W.2d 529 (Mo.1972). It should be noted that “if an accused is misled or induced to plead guilty by mistake, misapprehension, persuasion, or the holding out of a hope which proves to be false or ill-founded, his plea is not voluntary.”
Moore v. State,
488 S.W.2d 266, 270 (Mo.App.1972);
Latham v. State,
439 S.W.2d 737 (Mo.1969). However, the mere fact that the defendant’s plea of guilty resulted from plea bargaining is not a sufficient basis for finding the plea involuntary.
Pulliam v. State,
480 S.W.2d 896 (Mo.1972);
Coleman v. State,
473 S.W.2d 692 (Mo.1971);
Rayford v. State,
504 S.W.2d 285 (Mo.App. 1973). A review of the record makes it abundantly clear that the defendant’s plea was voluntarily made, and that the trial court’s participation in the plea bargaining did not coerce the defendant to plead guilty.
The record indicates that the trial court explained to the defendant in elaborate and thorough detail the sentence he would receive if he pleaded guilty, as well as the minimum and maximum sentences available under the law. The defendant acknowledged that he understood that by pleading guilty he was waiving his constitutional rights attendant to a jury trial. Thus, the requirements of
Boykin v. Alabama,
395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), were fulfilled. The prosecutor detailed the evidence against the defendant, and the defendant admitted his guilt. The defendant stated that he was not addicted to either drugs or alcohol and emphasized that it was his decision to plead guilty. He admitted that his decision was made free of any coercion or physical or mental intimidation. Throughout the hearing, the judge repeatedly told the defendant that he did not have to plead guilty and that he was entitled to a jury trial. The judge stressed that if the defendant chose to go to trial, the possibility existed that he could be acquitted by the jury. If he were found guilty the sentence imposed might be more or less than fourteen years.
The most conclusive evidence demonstrating that the defendant’s plea was voluntarily made despite the judge’s participation in the plea bargaining is the fact that on several occasions during the hearing, the defendant was offered more time to consider his plea. For example, the judge asked the defendant if he wanted an oppor
tunity to discuss his decision with his family before entering a plea. The defendant was also afforded an opportunity to postpone pleading until word was received from the United States probation officer concerning the suspension of the seven month sentence he still had to serve. Despite these opportunities to delay pleading, the defendant chose to plead guilty. In the light of these facts it cannot be said that the defendant’s decision to plead was the product of coercion or duress. The record conclusively demonstrates that the defendant’s plea was voluntary,
and the test of
Flood v. State,
supra, has been fully accomplished. There was no manifest injustice in refusing to
permit a withdrawal of defendant’s guilty plea.
Brown v. State,
supra. Defendant’s guilty plea was not maculated by the trial court’s participation in the negotiations in this case, and we commend the trial court for the manner in which it advised defendant of his rights and interrogated him regarding the plea.
We also hold that no error was committed in denying the defendant a hearing on his 27.26 motion, as the motion, files, transcript and records of the case “conclusively show that the prisoner is entitled to no relief.” Rule 27.26(e).
Smith v. State,
513 S.W.2d 407 (Mo. banc 1974);
Buckley v. State,
539 S.W.2d 736 (Mo.App.1976);
Fisk v. State,
515 S.W.2d 865 (Mo.App.1974);
Lewis v. State,
513 S.W.2d 772 (Mo.App. 1974).
The judgment is affirmed.
SIMEONE, P. J., and KELLY, J., concur.
