Williams v. State

745 S.W.2d 803, 1988 Mo. App. LEXIS 469, 1988 WL 12970
Procedural entryThis page is a short order in Williams v. State. Read the opinion of the Court — 1986 Mo. App. LEXIS 3942
Missouri Court of Appeals·Decided February 22, 1988·No. No. 15278·Published

Opinion

CROW, Chief Judge.

On April 2, 1985, per a plea agreement, Ward Sturgis Williams (“movant”) entered a plea of guilty to manufacturing marihuana, § 195.020.1, RSMo Cum.Supp.1984, and was sentenced to 10 years’ imprisonment. He subsequently brought a proceeding un[804]*804der Rule 27.26, Missouri Rules of Criminal Procedure (18th ed. 1987), to vacate the conviction. After an evidentiary hearing, the circuit court, in an order containing findings of fact and conclusions of law, denied relief. Movant appeals.

Three assignments of error are presented in movant’s brief. Summarized, they are: (1) movant’s plea of guilty was “tainted” by incorrect advice from his lawyers and the judge, (2) the prosecutor violated the plea agreement by filing a “vindictive” commitment report or, if that was allowable under the bargain, movant’s lawyers rendered ineffective assistance in failing to warn movant about such possibility, and (3) the motion court erred in denying movant’s request to disqualify the prosecutor from representing the State at the evidentiary hearing.

Movant and his wife, Roslyn, were each charged in the Circuit Court of Barry County in September, 1984, with manufacturing marihuana. Applications for change of judge and change of venue resulted in the cases being transferred to the Circuit Court of Lawrence County, with Honorable Robert Yocom, Associate Circuit Judge of the Circuit Court of McDonald County, being assigned as special judge.

In December, 1984, Judge Yocom set movant’s case for trial April 2, 1985. On March 13, 1985, movant filed a motion to suppress evidence. On March 28, 1985, movant, Roslyn, their attorneys (J. Edward Sweeney and Stephen R. Soutee), and Barry County Prosecuting Attorney John A. Lewright appeared before Judge Yocom in Newton County. In the transcript of that proceeding, we find this:

“THE COURT: ... The proceeding today was by agreement of counsel and the Court to be held in Newton County, ... which is in the nature of a pre-trial conference and consider multiple and several motions pertaining to suppression of evidence and other matters.... The parties have indicated that they have reached a plea bargain in these cases and in fact these cases will be pleas of guilty in Lawrence County on April 2nd, 1985, and that there will be no jury trials ...
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Before we go any further, I should advise the defendants that they have a right against self-incrimination. They do not have to make any incriminating statements and anything they say can and will be used, in the event there is not a plea of guilty to convict them at trial. Now, Gentlemen, does counsel agree with everything I’ve stated into the record up to this point?
MR. SWEENEY: Correct.
MR. SOUTEE: Yes, Your Honor.
MR. LEWRIGHT: Yes, Your Honor.
THE COURT: Very well. All right, counsel for the defense, do you have anything for the record with regard to Ward Sturgis Williams? Mr. Sweeney.
MR. SWEENEY: Ward, you understand you have been charged with the cultivation of marijuana, is that correct?
MR. WILLIAMS: Yes, I do.
MR. SWEENEY: Arising out of an occurrence in Barry County, Missouri, is that correct?
MR. WILLIAMS: Yes.
MR. SWEENEY: In fact, did you participate in the cultivation of same in Barry County, Missouri?
MR. WILLIAMS: Yes, I did.
[Roslyn, questioned by Sweeney, then made a similar admission.]
THE COURT: Very well. So far as I can tell, the thing for us to do then is to recess this matter and take up these cases in Lawrence County on April 2nd.”

The reason movant’s plea of guilty was not entered March 28, 1985, is found in the testimony of prosecutor Lewright during the evidentiary hearing on the motion to vacate. He explained:

“We were going to take the plea of guilty, and I ... brought up the issue, well, could he come back on a 27.26 because we’re not in Lawrence County where the case is officially at.
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And, therefore, the Judge said, why, I want to see if they want to plead guilty, ’cause we were, we had like 30 people there for the, uh — suppression [805]*805hearing. They came in, and he asked them if they were going to want to plead guilty, and I believe they said yes....”

On April 2, 1985, movant, Roslyn, and the same attorneys appeared before Judge Yocom in the Circuit Court of Lawrence County. Questioned by Judge Yocom, movant stated there was a “plea bargain” under which (a) he and Roslyn would each plead guilty, (b) he would be sentenced to 10 years’ imprisonment, and (c) Roslyn “goes free on probation.” Prosecutor Le-wright clarified the bargain as to Roslyn, explaining that she would receive a sentence of 5 years’ imprisonment, execution of the sentence would be suspended, and she would be placed on probation for 3 years. Movant confirmed that those were the conditions of the bargain. Movant then entered his guilty plea and received the specified sentence.

At the evidentiary hearing on his motion to vacate, movant testified that when the plea bargain was made on March 28, 1985, his attorneys told him that the purpose of appearing before Judge Yocom on that date was “[s]o we couldn’t back out on April the 2nd.” Movant added that his attorneys did not contradict Judge Yocom’s statement that any incriminating statement by movant could and would be used to convict him at trial in the event there was no guilty plea.

Testifying further, movant asserted that on the morning of April 2, 1985, prior to appearing before Judge Yocom, he told attorneys Sweeney and Soutee, "I thought we’d [agreed to plead guilty] in haste without enough time to think about it, and that if there was a way to undo it, then we wanted to return and have the suppression hearing.” Then this:

“Q ... What response did you get from your attorneys to the statement you just told me?
A They told us that we were committed, that we had already entered guilt, informal guilty pleas on March the 28th, and if we, if we said something that made the Judge not accept the guilty plea, they would use the statement of March 28th to convict us.
Q Okay.
A And that they no longer needed, the State no longer needed to win a suppression hearing. At that point, I was committed.
Q All right. Did you believe your attorneys when they told you this?
A Yes.”

Roslyn, testifying at the evidentiary hearing, recalled conferring with attorneys Sweeney and Soutee on April 2, 1985, prior to appearing before Judge Yocom. Roslyn’s testimony:

“Q ... What, in the presence of the attorneys, what did you do regarding Ward’s position?
A We told them that we had changed our minds, that I did not want him to plead guilty.
Q Did you feel he was sacrificing himself for you?
A Yes, I did.

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Williams v. State, 745 S.W.2d 803, 1988 Mo. App. LEXIS 469, 1988 WL 12970 (Mo. Ct. App. 1988).

745 S.W.2d 803 (Williams v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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