From the Circuit Court of Jackson County Criminal Appeal from Motion Under Rule 27.26 (Post Conviction Relief) Judge Timothy D. O'Leary.
Motion for Rehearing Overruled, Transfer Denied August 30, 1983. Application Denied October 18, 1983.
Before Clark, P.j., Dixon, Nugent, JJ.
The opinion of the court was delivered by: Dixon
Movant appeals from the denial of his motion for relief pursuant to Rule 27.26. The single issue is whether the defendant's plea was unintentional and involuntary because of ineffectiveness of counsel premised upon movant's claim that a plea bargain was unfulfilled. The movant was charged in two cases of burglary in the second degree. The second burglary contained a separate count of stealing. The movant entered a plea, which included a dismissal of the stealing charge. It is to the proceedings concerning this plea that the movant addresses his claim that his counsel was ineffective.
Movant asserts that there was an unfulfilled plea bargain agreement and that his counsel was thereby ineffective. Movant had prior convictions for burglary, attempted burglary, stealing, and narcotics violations.
Piror to movant's appearance for his guilty plea proceeding, the state and counsel for the defendant had discussed the possibilities of a plea bargain. The only record reference to this agreement appears in the transcript of the plea proceedings as follows:
THE COURT: Now, the only commitment I've made to your attorney is, really two, one, that I'd defer sentencing on both cases and order a pre-sentence investigation report.
THE COURT: The second thing is that after I get that P.S.I., if I do incarcerate you at that time, the maximum sentence I will impose on all three charges would be seven years.
THE COURT: Now, that's the only commitment I've made to your attorney.
After this statement, the trial court entered into a lengthy exchange with counsel and the defendant to insure that the defendant understood the nature of the proceedings and the extent to which the court was bound in connection with the guilty plea agreement. The court then pointed out to the defendant that a pre-sentence investigation would be made and that he would not be sentenced immediately.
The court acknowledged that under the plea negotiations no sentence greater than seven years would be imposed if the defendant were incarcerated at the time of the hearing on sentence after the pre-sentence investigation. The court further noted that if the defendant were placed on probation, the court had made no commitment as to the length of probation or sentence, nor as to the suspension or imposition of execution of sentence. The court further explicated its position by asking the following questions:
THE COURT: You understand that if I do suspend execution of sentence and put you on probation, I can sentence you to a total of twenty-five years?