Smith v. State

SEILER, Judge

(dissenting).

I respectfully dissent. The disposition made by the trial court and now adopted by this court does not, in my opinion, meet the federal constitutional standards, which are binding on us as well as the federal courts.

Defendant contended he made an involuntary or coerced plea. Such a plea is open to collateral attack and here defendant set forth nine grounds. One ground was that his lawyer threatened him with 175 years if he should stand trial. We cannot tell from the record before us whether this truly occurred or not, or if it did, what the effect was on defendant. If it did occur, how can we conclude, on the basis of any specific findings of fact in the record, that it did not coerce defendant? With all deference, I do not believe we can speculate that “threatened” was meant by defendant to convey the idea that counsel was stating his opinion as to the punishment a jury would assess. According to standard dictionaries, the verb “threaten” means to promise as a threat, to hold out by way of menace or warning, to attempt to dissuade by promising punishment, reprisal or distress. We have no factual basis on which to find defendant used the word to mean something innocuous.

The argument advanced that counsel could not have meant “threatened” in the usual sense of the word because counsel has no control over what punishment a jury would fix, may appeal to us as judges, because we know that to be a fact, but it does not follow at all that defendant also knew this. He may have taken literally what he alleged his lawyer said. The same applies to the fact that the guilty plea proceedings show defendant said he was satisfied with the manner in which he was advised. Defendant may have believed at the time of pleading guilty that despite the existence of what he alleged as grounds in his 27.26 motion, that his lawyer had done all defendant was entitled to and that he had no grounds for complaint. Certainly there is no specific refutation in the guilty plea proceedings of any of the grounds alleged in the 27.26 motion, except as to the drug addiction claim. We cannot say, under the record before us, that under no circumstances could defendant establish facts warranting relief on any of the grounds alleged.

In addition, it seems to me the majority opinion in stating: “A 27.26 movant, in or *413 der to be entitled to an evidentiary hearing, must plead facts, not conclusions, which, if true, would entitle him to relief and must show that such factual allegations are not refuted by facts elicited at the guilty plea hearing”, substantially reduces a defendant’s chances to obtain an evidentiary hearing under rule 27.26. We will not provide him counsel to prepare a 27.26 motion, Loflin v. State, 492 S.W.2d 770 (Mo.banc 1973), even though he asks for help to amend; we will not provide him with a transcript of his case until after he has a proper motion filed, State v. Keeble, 427 S.W.2d 404 (Mo.1968), and we have no provision for providing him with a copy of his guilty plea proceedings under rule 25.04 (see general order of this court entered February 22, 1972 requiring a transcript of such proceedings to be prepared by the reporter and filed with the circuit clerk). Yet now we are to require him to prepare a lawyer-like pleading which will survive a motion to dismiss, and to show, in his initial pleading, that his allegations are not refuted by facts elicited at the guilty plea hearing. By requiring all this, we make it close to impossible for the average inmate to file a 27.26 motion which will require an evidentiary hearing, regardless of how meritorious his claim may be in reality. This procedure is not designed, in my opinion, to facilitate getting 27.26 claims out in the open and disposing of them on the merits. On the contrary, it encourages the illusion that 27.26 claims can safely and finally be disposed of on technical grounds. In the long run, this will increase, not decrease, the time and effort required by the courts and counsel to dispose of 27.26 cases. Claims of violation of federal constitutional rights cannot be disposed of without having a factual basis on which to do so.

Finally, I believe there is merit to the contention that the trial court failed to meet its obligation to make findings of fact and conclusions of law on all issues presented, whether or not a hearing was held. Instead, this court, in the majority opinion, has sifted and analyzed the record and has, in effect, made the findings which should have been made by the trial court. As stated, even so, I do not believe the findings are supported by the record, but if they are, it is not sound policy, in my judgment, for the appellate courts to assume duties which are logically and properly to be performed by the trial court. It encourages side-stepping of responsibility, see State v. Brown, 436 S.W.2d 724 (Mo. 1969).