Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF CRAWFORD COUNTY Honorable Kelly W.
Parker, Circuit Judge.
Steffen Rahmeyer, J.
before the State completed the presentation of its evidence
to a jury, Robert Eugene Geist ("Defendant") chose
to enter a plea of guilty to each of the four offenses for
which he was being tried. Slightly more than four months
later on the day of sentencing, Defendant's trial counsel
orally requested to withdraw from representing Defendant. The
trial court denied counsel's request, and Defendant then
orally requested to withdraw his guilty pleas. The trial
court denied that request as well, and, later that same day,
imposed sentence on Defendant. Defendant appeals from the
judgment contending in two points that the trial court erred
in denying defense counsel's oral request to withdraw,
and in denying Defendant's oral request to withdraw his
guilty pleas. We deny Defendant's points, and affirm the
trial court's judgment.
and Procedural Background
to a jury commenced on December 7, 2016, on a second amended
information. The prosecutor announced that he
"anticipate[d]" calling three witnesses, and
defense counsel stated, "It's hard to say at this
point[, ] sir[, ] it just depends on what the, I don't
anticipate my client testifying. I think we both knew that
but I don't believe I have any other witnesses but
it's hard to say at this point."
trial court informed Defendant he was charged with (1) one
count of the class B felony of possession of methamphetamine
with the intent to distribute with a range of punishment from
five to fifteen years in prison, and (2) three counts of the
class C felony of unlawful possession of a firearm with a
range of punishment for each count of up to seven years in
prison (Defendant was alleged to have knowingly possessed
three separate firearms - a shotgun, a pistol and an assault
rifle). All the offenses were alleged to have occurred on
February 18, 2016. Defendant entered a plea of not guilty to
each count. Defendant also was informed that, if he was found
to be a prior and persistent offender, the range of
punishment would be increased to from "ten to thirty
years or life imprisonment" on count one and "five
to fifteen years" on each of counts two through four.
Defendant acknowledged that he had received and rejected a
plea offer, and "want[ed] to continue with the
prosecutor then introduced evidence of Defendant's
alleged two prior felony convictions without objection by
defense counsel, and the trial court found "beyond a
reasonable doubt that the defendant is a prior and a
persistent offender." Two law enforcement officers then
testified - a former detective for the Crawford County
Sheriff's Department,  and "an investigator with the Lake
Area Narcotics Enforcement Group assigned to Crawford
former detective told the jury that he served a search
warrant at Defendant's residence on February 18, 2016.
Defendant was present at his residence during the search. In
the course of the search, Defendant showed the officer a
"cache" of "illegal drugs and drug
paraphernalia," including "methamphetamine and
weed," "two bags of crystalline sub[s]tance that
tested positive for methamphetamine," "a bag
containing marijuana," and "scales," in a
"display case" in the garage, and a shotgun
"that was next to that area." The officer also
"went into the residence and located" a total of
thirty-seven firearms. The firearms found included a second
shotgun located in "a back gun safe" that the
officer believed was open, a "Colt Gold Cup 1911 45
automatic handgun" seized from Defendant's
residence, and an "AK 47 assault rifle" found in
the residence along with a "drum magazine."
Defendant told the officer he "knew" about the
handgun, and that the "guns did belong to him."
Defendant also told the officer that the second shotgun
"was his." The second shotgun did not have a serial
number as the shotgun had been "defaced." Defendant
told the officer that Defendant "was the owner" of
the assault rifle.
discovery of the firearms, the officer read Defendant his
"Miranda rights" after which Defendant
made a statement. The statement included Defendant telling
the officer that "the guns were his," and "he
knew he shouldn't have them but he wanted to pass them on
to his son." In a later interview at the Sheriff's
Department, Defendant also told the officer "he
purchased some of the weapons," "some of the
weapons were very expensive," and "he traded [dope]
sometimes for guns that he believed were probably
stolen." Defendant also told the officer that "he
sold meth to a[n] unidentified person in the prior six
time of the search, Defendant's wife told the officer
that "some of the weapons in the safe did belong to
her," but she was unable to describe the weapons and
"then conceded that the weapons belonged to
investigator testified as follows. From Defendant's
garage, the investigator collected
[four] small bags with a crystalline substance which field
tested positive for the presence of methamphetamine and was
later sent to the lab and came back as methamphetamine. And
then items of drug paraphernalia . . . There was numerous
bags which I associate to the packing of illegal substances
for distribution as well as scales with residue which field
tested positive for meth.
"numerous bags" were "too many to count."
The investigator showed the jury the "numerous
bags" and the "small bags" he collected. The
investigator also collected "some larger bags" with
residue. In the investigator's experience, "[l]arger
bags are an indication of large quantities of drugs being
kept in those bags," and the presence of smaller bags
indicates "smaller quantities being broke down from the
larger quantities for distribution." The significance of
the scales was "to verify the weight of various amounts,
investigator also collected a bag of marijuana. In a
post-Miranda interview that was recorded, Defendant
told the investigator the drugs seized were "just his
personal use" and "he hadn't done larger
quantities in quite a while." However, Defendant also
told the investigator that an unnamed "friend"
still "owed him money for drugs." Based on the
evidence, the investigator opined that Defendant's
operation "was still involved in the distribution of
methamphetamine," and "the amount [Defendant]
had" "is more than what we normally see on a
personal use case." On cross, the investigator
acknowledged the amount "could go either way" -
"either a personal use amount or a distribution
the completion of the investigator's testimony, the
prosecutor announced that the State had "one more
witness" - "the lab technician." Defense
counsel then asked "if we could take a recess," and
the trial court granted "a short break." Before the
jury was brought back into the courtroom, an exchange between
counsel, Defendant and the trial court occurred where
Defendant plead guilty to each of the four offenses being
tried. See Appendix A (attached).
trial court accepted the guilty pleas after taking judicial
notice of all the evidence and asking Defendant if he agreed
that is what the evidence was. The trial court found that
Defendant's pleas of guilty were made freely, voluntarily
and intelligently, with full understanding of the charges and
consequences of the pleas and with full understanding of his
rights attending a jury trial, and the effect of the pleas of
guilty on those rights. The trial court also found that there
was a factual basis for the pleas. The trial court then
ordered the Board of Probation and Parole to prepare a
sentencing assessment report, and scheduled sentencing for
February 27, 2017. The trial court released the parties, and
subsequently discharged the jury.
at least two continuances of sentencing, Defendant appeared
for sentencing on April 19, 2017. At the outset of the
hearing, defense counsel orally announced to the trial court that
Defendant "has directed me to withdraw as counsel and he
wishes to seek alternate counsel. He feels that I unduly
pressured him to plead guilty in this case so he will also be
seeking to withdraw his guilty plea. I know that you will not
allow me to withdraw until alternate counsel has
entered." The prosecutor "oppose[d] the request
unless he has another counsel that's going to enter for
him today," and also argued that Defendant "had
ample time to get another attorney if he wanted one."
The trial court then stated "[o]kay the request to
withdraw is denied at this time because this matter has been
going on way too long."
counsel then orally informed the trial court that Defendant
"wishes to withdraw his guilty plea, that's our
second request Your Honor." The following discussion
between the trial court, counsel, and Defendant then
[Defense Counsel]: He does not believe he's guilty of
this offense and he believes I unduly influenced him into
pleading guilty. He was unhappy during my performance during
trial and he believes that's one of the reasons that he
pled guilty and that unduly influenced him.
The Court: Okay. Do you wish to be heard further on that?
[Defense Counsel]: [Defendant] probably does Your Honor. I
think I've laid out the . . .
Defendant: That's pretty much everything.
The Court: Okay[, Defendant, ] do you wish to be heard
further on that, do you join in your attorney's request
to withdraw your guilty plea?
Defendant: Yes I do.
The Court: Anything else?
Defendant: I pled guilty to something I'm not guilty of.
It was just a highly pressured time and I didn't have no
choice and the longer I think about it the worse I get.
The Court: Okay[, ] State wish to be heard?
[Prosecutor]: Yes[, ] Your Honor. We are opposed to that
The Court: Okay the request to withdraw guilty plea is
overruled and denied[.]
that same day after a recess, the trial court recalled the
case for sentencing. At the sentencing, Defendant took the
witness stand and testified about a number of topics
including that Defendant disagreed with "pretty
much" the entire statement of facts in the sentencing
assessment report. Defendant also testified that he felt
defense counsel's "assistance was ineffective"
I can't get a phone call usually, late for court, this,
that and the other. I don't know how to say, she's
not open with me I guess is what I want to say. I mean I like
to know everything ahead of time before I get caught up in
the middle of something and it's just my nature and
she's not met my expectations.
Defendant's wife also testified, and told the trial
[The] guns were mine. I was the only one who had the
combination to the safe and I was the one who gave them that
combination to the safe when they asked for it. They belong
to me, not anybody else. They were forfeited over to me
whenever my husband got in trouble years ago. He hasn't
touched a gun. He knows better. I kept them locked in a safe
for a reason[.]
with the prosecutor's agreement at the time of
Defendant's guilty pleas, the prosecutor recommended
fifteen years on Count I and ten years on each of Counts II
through IV with the sentences to run concurrently. The trial
court imposed a sentence of fifteen years on possession of
methamphetamine with the intent to distribute (Count I), and
a sentence of ten years on each of the three counts of
unlawful possession of a firearm (Counts II through IV), with
the sentences to run concurrently.
the trial court's questioning of Defendant in making its
determination of whether there was probable cause to believe
defense counsel was ineffective, Defendant told the trial
court: "It was just that day of the trial, we went to
lunch and when we come back it was like the whole room, a
whole new ball game, I mean everybody did a 180, she was
doing great and then all of a sudden poof, you need to plea.
I was feeling like I didn't know what to do." The
State had not made a new offer; "I just don't know
what it was, I still don't know." Defense counsel
did not "do something that [Defendant] requested her not
to do." When asked if defense counsel "fail[ed] to
do something that [Defendant] requested her to do,"
Other than return phone calls and be here when she was
supposed to be you know I just, I was not informed real fully
of everything that I could have done. I could have had a
change of venue or something, none of that was ever
explained. I had two choices that day of the trial.
The Court: I think I asked you when we took your guilty plea
whether you understood you have a right to a change of venue.
Defendant: Yeah and I was probably in a mode, you know my
wife was upset and I couldn't get them to cooperate you
know I had two choices so I took the best of the two that I
thought was the best but apparently it wasn't.
counsel did not respond to Defendant's complaints about
her performance. The trial court subsequently found that
"there is no probable cause of ineffective assistance of
first point, Defendant asserts that the trial court erred in
denying defense counsel's oral request to withdraw,
"or in the alternative, by failing to grant [Defendant]
a continuance," "in that an irreconcilable conflict
existed between [Defendant] and [defense] counsel, where
[defense] counsel was required to argue a motion that was
predicated on [defense] counsel's own alleged
impropriety, and the denial was an abuse of discretion."
84.04(e) requires that the argument portion of the
brief "include a concise statement describing whether
the error was preserved for appellate review; if so, how it
was preserved; and the applicable standard of review."
Defendant's first point fails to comply with this
requirement. At sentencing, defense counsel's stated
ground for her request to withdraw was that Defendant
"feels [she] unduly pressured him to plead guilty."
Neither defense counsel nor Defendant claimed that defense
counsel had an irreconcilable conflict with Defendant at the
time of sentencing, or requested a continuance from the
sentencing. Defendant's first point was not presented to
the trial court. Defendant does not request plain error
review, and, in the absence of a request, we decline to
exercise our discretion to review for plain error.
first point is denied.
second point, Defendant asserts that the trial court erred in
denying Defendant's oral request to withdraw his guilty
pleas on the day of sentencing "in that the full record
available to the trial court established that
[Defendant's] plea of guilty was the product of
misapprehension, fear, and undue influence, and/or that the
trial court wrongfully believed that a motion for
post-conviction relief was ...