Opinion
No. ED75057
September 28, 1999
Appeal from the Circuit Court of St. Louis County, Hon. Robert S. Cohen
Stormy White, 100 S. Central, 2nd Floor, Clayton, MO 63105, Attorney for Appellant.
Jeremiah W. (Jay) Nixon, Attorney General, Catherine Chatman, Assistant Attorney General, Post Office Box 899, Jefferson City, MO 65102, Attorney for Respondent.
Before William H. Crandall, Jr., P.J. and Mary K. Hoff, J. concur.
Defendant, Mohammad Sultan, appeals the denial of his motion to withdraw his guilty plea pursuant to Missouri Supreme Court Rule 29.07(d) after an evidentiary hearing. Defendant was charged with rape, section 566.030 RSMo 1986, pleaded guilty and was sentenced to five years in the custody of the Missouri Department of Corrections, suspended execution of sentence and five years probation. We affirm.
The evidence supports finding the following facts. On November 12, 1993 defendant pleaded guilty as charged pursuant to a plea agreement. The court questioned defendant regarding his right to a jury trial and all other rights attendant thereto. The court ascertained that his plea was voluntary, knowing and counseled. The court questioned his understanding of the range of punishment and the state's recommendation. The court accepted defendant's guilty plea.
At the time of his plea, defendant was an alien who had resided lawfully in the United States for about one year. He was a citizen of Iraq. Sometime after his guilty plea, deportation proceedings were initiated and defendant was taken into federal custody. On May 22, 1998 defendant filed a revised Motion to Set Aside Judgment of Conviction and Withdraw Guilty Plea. His motion alleged: (1) he did not knowingly and intelligently plead guilty due to limited understanding of English; (2) he had no knowledge that he would be deported as a result of his conviction; and, (3) if deported, he would be executed by the Iraqi government as an army deserter. At the evidentiary hearing, defendant's plea counsel testified that he met defendant twice before the hearing. Counsel acknowledged that defendant had "some difficulty" understanding him, but believed that defendant understood his right to a trial and certain rights at trial. Counsel explained that a plea of guilty on the state's recommendation would result in release from jail and a suspended execution of sentence with probation. Counsel testified there was no discussion of the consequences of a guilty plea on defendant's immigration status. An interpreter was requested for the plea, but failed to attend.
On June 9, 1998 the court denied defendant's motion. It found that he understood "the reason he was in jail, the crime charged against him, his right to contest the charge and to proceed to trial with his attorney, his admission of wrongdoing, and the direct consequences of his plea of guilty."
On appeal, defendant argues: (1) the motion court erred in failing to set aside defendant's conviction and guilty plea to prevent manifest injustice pursuant to Rule 29.07(d); (2) the trial court erred in accepting defendant's plea of guilty because it was made unintelligently and involuntarily; (3) the motion court erred in finding that the failure to inform defendant of deportation was a collateral consequence and, thus, not cause to set aside and vacate his guilty plea; and, (4) the motion court erred in failing to set aside defendant's plea and sentence because he would not have pleaded guilty if the plea agreement were put on the record as required by Rule 24.02(d)(2). We review the trial court's decision on a motion to withdraw a guilty plea for clear error or an abuse of discretion. State v. Dunn, 970 S.W.2d 891, 891 (Mo.App.E.D. 1998). The defendant bears the burden of proving such error by a preponderance of the evidence.State v. Hasnan, 806 S.W.2d 54, 55 (Mo.App. 1991).
Rule 29.07(d) provides that "[a] motion to withdraw a plea of guilty may be made only before sentence is imposed or when imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea." Rule 29.07(d) (emphasis added). It expressly applies to misdemeanors and felonies, which differs from the exclusivity of Rules 24.035 and 29.15. Relief pursuant to Rule 24.035 is unavailable to defendant because that rule only applies to those who "were delivered to the custody of the department of corrections." Rule 24.035(a). Defendant does not implicate the conduct of his plea counsel, and the court has never presented, heard or decided the issue of ineffective assistance. Instead, a Rule 29.07(d) motion is appropriate because it is intended as a remedy where defendant changes his mind, particularly where the sentence does not include prison time.
In his first point, defendant argues that the motion court erred in failing to set aside his conviction and guilty plea to prevent manifest injustice pursuant to Rule 29.07(d). We review for manifest injustice in the plea and sentencing process, but not the alleged harsh treatment, including the probability of death, if deported because of this conviction and returned to Iraq. Although there is no comprehensive definition of manifest injustice as used in Rule 29.07(d), examples of application are extremely important. Manifest injustice would occur in circumstances where: (1) a defendant has no language ability and, thus, a knowing and intelligent plea could not be entered; and, (2) the only proof of some element of a crime is falsified and the guilty plea is related to that false testimony (i.e. perjury, forgery, etc.). However, there is no manifest injustice inherent in a plea that was knowing and voluntary and was made with an understanding of the charges against defendant. "If an accused has been misled or induced to plead guilty because of fraud, mistake, misapprehension, fear, persuasion or holding out of hopes which prove to be false or ill-founded, he should be permitted to withdraw his plea." Sharp v. State, 908 S.W.2d 752, 755 (Mo.App.E.D. 1995) quoting Scroggins v. State, 859 S.W.2d 704, 707 (Mo.App.W.D. 1993). "Unawareness of certain facts at the time of a plea does not necessarily render the plea unintelligent or involuntary." State v. Pendleton, 910 S.W.2d 268, 270 (Mo.App.W.D. 1995).
Fed.R.Crim.P. 32, the federal counterpart of Rule 29.07(d), provides further guidance. State v. Choate, 639 S.W.2d 906, 908 (Mo.App. 1982); State v. England, 599 S.W.2d 942, 947 (Mo.App. 1980). A plea that conforms to Rule 24.02, and federal counterpart Fed.R.Crim.P. 11, may still be withdrawn pursuant to 29.07(d) and Fed.R.Crim.P. 32 if it defeats the interests of justice. United States v. Sambro, 454 F.2d 918, 925-26 (D.C. Cir. 1971). In United States v. Russell, 686 F.2d 35 (D.C. Cir. 1982), the court identified the following circumstances to guide courts' exercise of discretion as to whether justice requires that a defendant be allowed to withdraw his guilty plea pursuant to Fed.R.Crim.P. 32: (1) the strength of defendant's reason for withdrawing the plea; (2) whether defendant asserts his innocence of the charged crime; (3) whether defendant's untimely request to stand trial prejudices the government's case; and, (4) whether defendant's misunderstanding of collateral consequences is the result of miscommunication. United States v. Russell, 686 F.2d 35, 39 (D.C. Cir. 1982).
In support of the first Russell element, defendant argues that his guilty plea will result in deportation, torture and execution in his native Iraq. Defendant asserts that "during the motion hearing, the motion court restated numerous times throughout the hearing its plainly erroneous finding that deportation consequences are by definition completely `irrelevant' to the court's proceeding." We disagree. Missouri courts have not decided that a plea court or counsel must instruct defendant on collateral consequences, such as deportation. Hasnan, 806 S.W.2d at 55. "Federal case law uniformly holds that deportation proceedings are a collateral result of a guilty plea and as such, need not be disclosed to a criminal defendant entering a plea of guilty." State ex rel. Nixon v. Clark, 926 S.W.2d 22, 25 (Mo.App.W.D. 1996) quoting Hasnan, 806 S.W.2d at 56.
Defendant contends that he has always maintained his innocence of the crime. That is not correct. Unlike the defendant in Russell who consistently maintained his innocence and entered a plea of guilty without admitting guilt as allowed byNorth Carolina v. Alford, 400 U.S. 25 (1970), here defendant admitted his guilt under oath. The Supreme Court in Russell limited its holding to those defendants who enter an Alford plea, and thus is inapplicable to the defendant here. Russell, 686 F.2d at 40 n. 6.
In support of the third Russell element, defendant argues that he should be allowed to withdraw his plea after nearly four and one half years. In Russell, the court found no prejudice to the government's case where the plea had been entered only three months prior to his motion to withdraw. Id. at 40. Defendant has not demonstrated that there would be no prejudice to the state's case.
Finally, defendant asserts that "misunderstanding of the consequences of his plea are a result of miscommunication." To the contrary, the record supports the following exchange at the plea hearing:
THE COURT: This could have some ramifications on his being here.
MR. KENYON: Yes, ma'am, I know.
THE COURT: Do you know that?
THE DEFENDANT: Yes.
In Russell, the defendant was actively misled about the consequences of his guilty plea on his immigration status. Id. at 41. Here, no affirmative misrepresentations about deportation were made to defendant. Thus, he does not meet the elements as set forth in Russell.
In Point II, defendant argues the trial court erred in accepting his plea of guilty because it was made unintelligently and involuntarily. He asserts: (1) his limited understanding of English; (2) that neither the court nor counsel informed him that consent was a defense to the charge of rape; and, (3) that neither the court nor counsel informed him that he would not go to prison if the jury believed the victim consented. A criminal defendant's guilty plea to a charged offense waives significant constitutional rights and, therefore, is not valid unless it is knowing, intelligent and voluntary. Huth v. State, 976 S.W.2d 514, 516 (Mo.App.E.D. 1998). Our Supreme Court has cogently explained what defendant must understand to enter a valid plea of guilty:
Unlike a waiver of the Sixth Amendment right to counsel, a guilty plea is a waiver of several constitutional rights. The first is the privilege against self-incrimination . . . Second, a guilty plea waives the right to a trial by jury . . . Third, a guilty plea waives the right to confront one's accusers . . . In addition to these rights . . . the Missouri Constitution provides the right "to demand the nature and cause of the accusation" and "to have access to compel the attendance of witnesses on his behalf." These rights are guaranteed by these constitutions of which the record taken as a whole must show that a person pleading guilty is aware, understands, and freely relinquishes before a guilty plea is effective.
State v. Shafer, 969 S.W.2d 719, 731-32 (Mo.banc 1998), cert. denied 119 S.Ct. 419 (1998). The plea was entered as follows:
THE COURT: All right. You understand that under our system of justice, Mr. Sultan, that you are entitled to a trial by jury, instead of pleading guilty, and in such a trial you would have a jury of twelve persons. Do you understand that?
THE DEFENDANT: Yes, I understand.
THE COURT: Do you know that you are entitled to the services of your lawyer throughout that whole trial?
THE DEFENDANT: Yes, I understand.
THE COURT: And do you know that the jury would be instructed that you are presumed to be innocent?
THE DEFENDANT: Yes, I understand.
THE COURT: Do you understand that the State would be required to prove your guilt beyond a reasonable doubt, and the jury would be so instructed?
THE DEFENDANT: Yes, I understand that.
THE COURT: Do you understand that you could testify or not testify, as you choose, and that no comment could be made by the prosecuting attorney or the Court about your failure to testify, if you decided not to testify?
THE DEFENDANT: Yes, I understand that.
THE COURT: Do you know that all twelve jurors would have to agree as to your guilt?
THE DEFENDANT: Yes, I understand that.
THE COURT: Do you know that the State would be required to produce in open court its witnesses against you, and your attorney would have the right to cross-examine these witnesses?
THE DEFENDANT: Yes, I understand that.
THE COURT: Do you know that you could present other evidence and witnesses in your defense, if you so chose [sic], and you could have persons subpoenaed, if necessary, to testify as witnesses in your favor?
THE DEFENDANT: Yes, I understand that.
THE COURT: By pleading guilty, Mr. Sultan, you're waiving all the rights I have just gone over with you, and there will not be a trial. Do you understand that?
THE DEFENDANT: Yes, I understand that.
THE COURT: Do you have any questions?
THE DEFENDANT: No.
The record supports a finding that defendant made appropriate responses. Although the record of the Rule 29.07(d) motion hearing indicates that plea counsel once perceived the need of an interpreter, and one failed to attend, counsel testified that defendant understood his rights and the procedure of pleading guilty sufficiently to enter a valid plea without an interpreter. Defendant does not claim that counsel misled the plea court or that counsel was ineffective.
In Point III, defendant argues that the motion court erred in finding that the failure to inform him of a possible deportation was a collateral consequence and, thus, not cause to set aside and vacate his guilty plea. There is no Missouri authority which requires the court or counsel to instruct defendant on the collateral consequences, such as deportation. Hasnan, 806 S.W.2d at 55. "Under no construction or reading of Rule 24.02(b) can deportation proceedings be found to be `direct' consequences of a guilty plea." Id. at 56.
Whether defendant had knowledge and understanding of the consequences of his plea is at issue. The trial court and counsel have a duty to inform the defendant of the direct consequences of his guilty plea. Huth, 976 S.W.2d at 516; Hasnan, 806 S.W.2d at 55. "Direct consequences "are those which definitely, immediately, and largely automatically follow the entry of a plea of guilty." Hasnan, 806 S.W.2d at 56 quoting Huffman v. State, 703 S.W.2d 566, 568 (Mo.App. 1986). Additional guidance is provided by Rule 24.02(b), which is similar to its federal counterpart, Fed.R.Crim.P. 11. Thus, Missouri courts have held that federal case law, which interprets and applies Fed.R.Crim.P. 11, is "persuasive precedent" when understanding Rule 24.02(b).Hasnan, 806 S.W.2d at 56. "Federal case law uniformly holds that deportation proceedings are a collateral result of a guilty plea and as such, need not be disclosed to a criminal defendant entering a plea of guilty." State ex rel. Nixon, 926 S.W.2d at 25 quoting Hasnan, 806 S.W.2d at 56. Federal appellate courts addressing the issue have held that deportation proceedings are collateral in nature and, thus, defendants have no due process right to be informed of the likelihood of deportation as a result of a guilty plea. United States v. Banda, 1 F.3d 354, 355 (5th Cir. 1993); Varela v. Kaiser, 976 F.2d 1357, 1358 (10th Cir. 1992); United States v. Olvera, 954 F.2d 788, 793-94 (2nd Cir. 1992); United States v. Del Rosario, 902 F.2d 55, 59 (D.C. Cir. 1990); United States v. Montoya, 891 F.2d 1273, 1292-93 (7th Cir. 1989); United States v. Yearwood, 863 F.2d 6, 7-8 (4th Cir. 1988);United States v. Romero-Vilca, 850 F.2d 177, 179 (3rd Cir. 1988);Nunez Cordero v. United States, 533 F.2d 723, 726 (1st Cir. 1976); Fruchtman v. Kenton, 531 F.2d 946, 948-49 (9th Cir. 1976).
There is no dispute that defendant was informed of the direct consequences of his guilty plea. Prior to entering his plea, the plea court fully informed defendant of his right to a jury trial, the rights attendant thereto, and the hypothetical situation where the jury may have found him not guilty of the charged offense. Point denied.
In his fourth point, defendant argues that the motion court erred in failing to set aside defendant's plea and sentence because he would not have pleaded guilty if the plea agreement were put on the record as required by Rule 24.02(d)(2). The record indicates that the plea court conducted the following inquiry:
THE COURT: And the State's recommendation, please?
MR. ARCHER (prosecuting attorney): Your Honor, the State's recommendation is that we ask that he serve five years in the Missouri Department of corrections and Human Resources. [F]urther, we would ask that the Court suspend the execution of that sentence and that he be placed upon five years probation, with the following special conditions that we would ask the Court to impose. First of all, that he have no contact with the victim. Secondly, that he undergo counseling, specifically sex offenders counseling, as ordered by the State Board of Probation and Parole.
THE COURT: All right. Thank you. Sir, is this your understanding of what the State's recommendation is?
THE DEFENDANT: Yes, it is.
A guilty plea should not be accepted "without first inquiring whether there is a plea agreement, and if there is one, requiring that it be disclosed on the record in open court." Rule 24.02(d);Loudermilk v. State, 973 S.W.2d 551, 554 (Mo.App.E.D. 1998) quoting Schellert v. State, 569 S.W.2d 735, 739 (Mo. 1978). Defendant asserts that after an off the record discussion, the court announced on the record that he was to be a "guest of our prison," and because there is nothing in the record to support this statement, the entire plea agreement must not have been placed on the record. However, the evidence supports a finding that the court never ordered defendant delivered into the custody of the Department of Corrections. Here, the court's inquiry was sufficiently specific to satisfy the requirement that the plea agreement was put on the record and embodied in defendant's actual sentence. At the motion hearing, defense counsel confirmed the entire plea agreement was as set forth above. Point denied.
We affirm.