Howard v. State

BILLINGS, Judge

(concurring).

I concur in the reasons and result of the principal opinion and desire to set forth some further observations in support of the lower court’s ruling.

In recent years it has become rather standard practice to grant evidentiary hearings in coram nobis proceedings whenever the faintest assertion is made that a constitutional right was violated. I cannot agree with this practice and do not believe that the writ of error coram nobis, or, in the nature of a writ of error coram nobis, should be treated in basically the same fashion as a proceeding under Rule 27.26. The Missouri fountainhead for such cavalier treatment of this extraordinary remedy seems to be the case of State v. Stodulski, 298 S.W.2d 420 (Mo.1957), which followed dictum found in the earlier case of State v. Terrell, 276 S.W.2d 219 (Mo.1955) and the 5 to 4 decision of the United States Supreme Court in United States v. Morgan, 346 U.S. 502 , 74 S.Ct. 247 (1953). In my *22 view Stodulski and subsequent decisions have tended to overlook the limitations explicit in both Terrell and Morgan .

In Terrell the movant (confined under a subsequent sentence) sought to vacate sentences and alleged he had not been represented by an attorney at the time he entered pleas of guilty. The trial court summarily denied the motion on the ground that the judgments recited that the defendant had appeared in person and by his named attorney. On appeal The Supreme Court treated the motion to vacate as an application for a writ of error coram nobis and in affirming the action of the trial court in denying movant relief without his presence or an evidentiary hearing, the late Judge Westhues wrote (276 S.W.2d l.c. 220, 221) : “ . . . We are of the opinion that the lam does not permit a solemn finding of fact in a judgment of a court to he impeached by oral evidence . . .”. “ . . - If such a solemn finding can be set aside by a defendant on oral evidence dehors the record, then every judgment of conviction may be attached and sought to be set aside. There would be an endless chain of litigation.

“Terrell insists he has the right by his present motion to reopen the case and produce oral evidence to show he was not represented by counsel. He cites the case of U. S. v. Steese, 3 Cir., 144 F.2d 439 , wherein it was held that a case may be reopened by a motion in the nature of a writ of error coram nobis to show that a fundamental constitutional right was denied a defendant. We grant that to be correct. However, in that case the record was silent as to whether the defendant had been advised of his right to have legal counsel. The court did not hold that a specific finding of fact in a judgment could be set aside by oral evidence.

“This court in State v. Harrison, Mo., 276 S.W.2d 222 , in speaking of the function of a writ of error coram nobis, said: ‘The application is made to the trial court to correct errors of fact, not appearing on the face of the record, affecting the validity of proceedings which errors of fact were unknown to the party now seeking relief and to the court at the time of the disposition of the particular case, and which errors of fact, had they been known, would have prevented the rendition of the judgment.’ ” (emphasis added)

In Stodulski the court considered an application for a writ of error coram nobis in which the applicant was seeking to set aside prior convictions, already served, which had been used in applying what is now the Second Offender’s Act (§ 556.280, RSMo., 1969, V.A.M.S.) in a subsequent conviction. In approving the use of coram nobis to attack a completed sentence the court relied upon the dictum in Terrell approving what had been ruled in United States v. Steese, supra, and the decision in United States v. Morgan, supra. As a consequence, a never-ending flow of cases have followed in which the courts of this state have prefaced their opinions with a statement that since the defendant had completed the sentence now attacked Rule 27.26 was not applicable and the motion would be considered as an application in the nature of a writ of error coram nobis.

As the principal opinion observes the writ by which appellant in the instant case seeks relief from his past conviction is not a writ of right. It is a writ which had as its origin “necessity” and initially emanated from the Chancery Courts, was adopted by the Common Law in civil proceedings, and subsequently used to attack criminal judgments. 1 Throughout its history it was necessary for the application for the writ to set out the facts on which the writ was sought and conclusions were insufficient to invoke this extraordinary remedy. Additionally, reasonable diligence on the part of one seeking such a writ was re *23 quired and laches could constitute a bar to relief. 24 C.J.S. Criminal Law § 1606.

The majority opinion in United States v. Morgan, supra, recognized these principles in the following words (346 U.S. l.c. 511— 513, 74 S.Ct. l.c. 252): “Continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review should be allowed through this extraordinary remedy only under circumstances compelling such action to achieve justice. . . . [Tjhat coram nobis included errors ‘of the most fundamental character’ . . . [A]nd sound reasons existing for failure to seek appropriate earlier relief ...” The court concluded its opinion by saying “Although the term has been served, the results of the conviction may persist. Subsequent convictions may carry heavier penalties, civil rights may be affected . . . ” 2

Following the dictates of the federal courts Missouri has provided a legitimate method of post-conviction proceedings under Rule 27.26 and I would hold that convicted individuals desiring to raise constitutional questions concerning a judgment should be required to either raise such issues on direct appeal or by Rule 27.26. Further, that the failure to pursue these recognized remedies would constitute a deliberate by-pass of state procedure and laches would bar the invocation of an ancient and extraordinary remedy which has been illegitimatized into a modern-day mode of attacking a completed sentence. The willingness to permit the continued abuse of coram nobis has proven Judge Westhues to be prophetic in his Terrell statement that there would be an endless chain of litigation and has cast aside the principle voiced by the dissenting Justices in Morgan that there should be an end to litigation.

In the case at bar the appellant’s motion and brief admit the trial court records of his earlier plea “appear substantially regular” but “without oral testimony he is without remedy”. What appellant is seeking is a full-scale evidentiary hearing as under Rule 27.26 whereby he can, by oral testimony, seek to contradict and impeach the court records. Although in accepting appellant’s 1967 guilty plea the trial judge did not go into the detail now required in federal courts, or strictly comply with Rule 25.04, it is evident to me that the judge was satisfied appellant’s guilty plea was in fact voluntary. In addition, the judgment specifically recites “ . . . [A]nd the Court states to the defendant that he has voluntarily entered his plea of guilty to the said charge . . .” What appellant seeks to do in this case is exactly what Judge Westhues held could not be done in Terrell .

If convicted defendants who have completed sentences are to continue to be permitted to deliberately by-pass Rule 27.26 then we should adopt the California rule that in coram nobis proceedings the trial court has broad discretion in deciding the outcome of such and only in a clear case of abuse of discretion will the appellate courts interfere. People v. Blevins, 222 Cal.App.2d 801 , 35 Cal.Rptr. 438 , 36 Cal.Rptr. 191 (1963); People v. Goodspeed, 223 Cal.App.2d 146 , 35 Cal.Rptr. 743 (1963) ; People v. Quigley, 222 Cal.App.2d 694 , 35 Cal.Rptr. 393 (1963).

In the comparatively recent decision of Stewart v. United States, 446 F.2d 42 (8th Cir. 1971) that court duly acknowledged the ruling of the Supreme Court in United States v. Morgan, supra, but observed that the ruling in Morgan permitted the extraordinary remedy of coram nobis “only under the circumstances compelling such action to achieve justice” and held that the petitioner must demonstrate that he is suffering from present adverse circumstances in order to he entitled to that remedy, cit *24 ing McFadden v. United States, 439 F.2d 285 (8th Cir. 1971). (emphasis added)

In the McFadden case the Circuit Court of Appeals affirmed the denial of a writ of error coram nobis to a petitioner who was incarcerated on subsequent convictions and sought to overturn completed sentences. He had alleged he had ineffective assistance of counsel following the earlier convictions because his attorney failed to inform him of his right to appeal in forma pauperis, and as a result he did not appeal. He further alleged he was presently suffering adverse consequences from not having had the earlier convictions reversed on appeal, because he was presently serving enhanced sentences imposed on him as a second offender following 1966 convictions. The District Court denied the writ for two reasons: (1) McFadden failed to allege any errors in his earlier trial calling for a reversal of his convictions on appeal, and, (2) the sentences imposed following the 1966 convictions were within the maximum sentence available for first offenders. In affirming, the Eighth Circuit Court of Appeals said (l.c. 287): “The Government primarily relies on the reasoning articulated by the District Court in denying McFadden’s motion but also points out that McFadden has not complied with the requirements set forth in United States v. Morgan, 346 U.S. 502, 512 , 74 S.Ct. 247 (1954), that petitioner must show sound reasons for failing to seek appropriate earlier relief before his motion in the nature of the extraordinary writ of coram nobis must be heard by the district court.

"Morgan is of course the landmark case. There the petitioner, who had completed a sentence for a federal crime, was convicted of a state crime and given an enhanced term as a second offender because of his prior federal conviction. He then attacked the federal conviction for lack of counsel. The Supreme Court held that relief under § 2255 and under Rule 35 was not available, but that the district court had power to grant relief ‘in the nature of a writ of error coram nobis’ under 28 U.S.C. § 1651 . However, the Court stressed that ‘[ continuation of litigation after final judgment and exhaustion or waiver of any statutory right of review should be allowed through this extraordinary remedy only under circumstances compelling such action to achieve justice.’ 346 U.S. at 511 , 74 S. Ct. at 252 .

“In construing Morgan , this Court has held that ‘error coram nobis relief should not be granted except under compelling circumstances’ and that the writ was designed only to correct errors of the most fundamental character. Gajewski v. United States, 368 F.2d 533, 534 (8th Cir. 1966), cert. denied, 386 U.S. 913 , 87 S.Ct. 865 , 17 L.Ed.2d 786 (1967). We denied the writ in Gajewski, but granted the writ in Deckard v. United States, 381 F.2d 77 (8th Cir. 1967), upon a proper showing of a basis for relief and a showing of outstanding adverse legal consequences from the conviction. The latter showing was necessary to give the federal district court jurisdiction of an application in the nature of coram nobis. United States v. National Plastikwear Fashions, Inc., 368 F.2d 845, 846 (2d Cir. 1966), cert. denied, Greene v. United States, 386 U.S. 976 , 87 S.Ct. 1171 , 18 L.Ed.2d 136 (1967). 3 The constitutional error in Deckard was fundamental, there were compelling circumstances to grant relief in order to achieve justice, and these errors and circumstances were articulated by the petitioner in his application for the writ.

“We conclude petitioner’s claim that he was denied his right to appeal does not present an error of the most fundamental character since his petition does not set forth a single ground calling for a reversal of his 1957 convictions. Petitioner has also failed to show that he is suffering outstanding adverse legal consequences *25 from these convictions. There is substantial doubt that even a successful appeal of McFadden’s 1957 convictions would redound to his benefit, since his 1966 sentences were within the permissible limits of sentencing him as either a first or second offender and any loss of civil rights flowing from the 1957 convictions now flow with equal force from the 1966 convictions. Finally, McFadden has failed to state sound reasons for not seeking appropriate earlier relief. Kiger v. United States, 315 F.2d 778, 779 (7th Cir.) cert. denied, 375 U.S. 924 , 84 S.Ct. 270 , 11 L.Ed.2d 166 (1963).” 4

In addition to the reasons advanced in the principal opinion for the denial of relief to appellant I would hold that there has not been a showing that appellant is suffering from present adverse circumstances as a result of his 1967 conviction 5 and he has failed to state sound reasons for not seeking appropriate earlier relief.

. Stephens, Principles of Pleading, 3rd Am.Ed. 142; and see cases and authorities collected in United States v. Morgan, 346 U.S. 502 , 74 S.Ct. 247 , 98 L.Ed. 248 .

. Inherent in the court’s decision in Morgan is the “enhancement of punishment” in subsequent prosecutions under what are commonly called habitual criminal acts. Since 1959 in Missouri enhancement of punishment no longer exists in prosecutions under the Second Offender’s Act (§ 556.280). The judge, rather than the jury, assesses punishment upon a jury determination of guilty.

. In United States v. National Plastikwear Fashions, Inc., the petitioner sought coram nobis relief from a 12-year-old one month sentence for criminal contempt. The court held the allegations failed to show any outstanding adverse legal consequences from the conviction and sentence.

. Kiger v. United States reaffirmed the narrow scope of review for coram nobis relief and held petitioner had failed to show “sound reasons * * * for failure to seek appropriate earlier relief.”

. In case No. 9272, State of Missouri vs. David McCullough, pending in this court, appellant appeared as a witness and testified he was presently incarcerated in the Missouri State Penitentiary under a 1971 sentence from Phelps County.