Chapter 33

Guilty Pleas

 

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Section 33.1      Overview and Procedure Checklist

Section 33.2      Essential Elements of a Valid Plea

Section 33.3      Plea Bargaining

Section 33.4      Waiver of Counsel

Section 33.5      Enforcement of Plea Bargain

Section 33.6      Alford Pleas

Section 33.7      Withdrawal of Plea

Section 33.8      Appeal

Section 33.9      Effect of Plea

Section 33.10    Transcript Prepared - When

Section 33.11    Forms

 

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Section 33.1 Overview and Procedure Checklist

 

Guilty plea hearing. A guilty plea hearing is usually held in open court, on the record, with the defendant and his attorney present in person. Televised appearances of the defendant for the purpose of offering a guilty plea are not permissible. State ex rel. Turner v. Kinder, 740 S.W.2d 654 (Mo. banc 1987). However, it should be pointed out, subsequent to the Kinder decision, the legislature enacted Section, 561.031, RSMo (2006). Where the defendant is in a place of custody or confinement, the statute allows for televised guilty pleas when the plea is offered at arraignment and the defendant waives his/her right to be physically present. The statute also allows other appearances, including guilty pleas, via closed circuit television upon waiver of any right a defendant held in custody might have to be physically present. Section 561.031.1(4) and .2, RSMo (2006).  

 

Written guilty pleas. A written plea procedure is inadequate without sufficient oral inquiry by the trial court. Johnson v. State, 962 S.W.2d 892 (Mo. App. 1998); Dean v. State, 901 S.W.2d 333 (Mo. App. 1995). The court need not personally interrogate the defendant at the hearing, but the court must ensure that the record reflects that all necessary information was communicated to the defendant, and find that the defendant is proceeding voluntarily, with a full understanding of the consequences. State v. Taylor, 929 S.W.2d 209 (Mo. banc 1996).

 

Duties of counsel. Counsel does not have a duty to inform a defendant of all the collateral consequences of his guilty plea. Morales v. State, 104 S.W.3d 433 (Mo. App. 2003). The distinction between "direct" versus "collateral" consequences of a guilty plea is discussed in State v. Hasnan, 806 S.W.2d 54 (Mo. App. 1991). There, the court held that deportation proceedings were a collateral result of a guilty plea. The possibility of a civil action after a guilty plea is a collateral consequence under the rationale of Hasnan.

 

Felony guilty plea checklist.

 

 

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Section 33.2 Essential Elements of a Valid Plea

 

Knowing, voluntary and intelligent. A guilty plea must be knowingly, voluntarily and intelligently entered, with a full knowledge and understanding of the charge and the consequences of the plea, and an understanding of his rights to trial by jury and the effect of the guilty plea on these rights. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969); State v. Henderson, 750 S.W.2d 507 (Mo. App. 1988). The record must be sufficient to establish that the defendant's plea was voluntary, and that the defendant had been informed of the essential elements of the offense and understood the range of punishment. See Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 140 L. Ed. 2d 828 (1998); Holland v. State, 954 S.W.2d 660 (Mo. App. 1997).

 

Factual basis. There must be a factual basis for the plea, and it must appear of record. Ennis v. State, 887 S.W.2d 771 (Mo. App. 1994). Rule 24.02(e) mandates that, "The court shall not enter a judgment upon a plea of guilty unless it determines that there is a factual basis for the plea." If the facts presented to the court fall short of establishing the commission of a crime, then the offered plea should not be accepted. Jones v. State, 758 S.W.2d 153 (Mo. App. 1988). It is not necessary for the defendant to admit to or recite the facts that constitute the offense as long as a factual basis for the plea does, in fact, exist. The factual basis is established if the defendant understands the facts outlined by the judge or prosecutor. Id.; see also State v. Hunter, 840 S.W.2d 850 (Mo. banc 1992).

 

Plea bargain and its terms. Rule 24.02(d)(2) requires the plea bargain be stated precisely on the record, together with the defendant's understanding of and consent to the bargain. See Robinson v. State, 952 S.W.2d 315 (Mo. App. 1997). A recitation of the terms of the plea must be stated in open court. However, upon a showing of good cause, the plea can be recited in camera. Rule 24.02(d)(2).

 

Group pleas. In some jurisdictions, judges take pleas from groups of defendants simultaneously. If this is done, the record must clearly reflect each defendant's clear understanding of the proceedings. Rule 24.02(b) requires that each defendant be addressed in open court. A group plea is perhaps most convenient when co-defendants are pleading to the same charges. Reece v. State, 852 S.W.2d 877 (Mo. App. 1993).

 

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Section 33.3 Plea Negotiation and Plea Agreement

 

Trial Judge's Role and Response to Plea Agreement.

 

 

Plea negotiations cannot be compelled. Neither the defendant nor the prosecutor can be required to negotiate. See State v. DeClue, 805 S.W.2d 253 (Mo. App. 1991).

 

Alteration of plea bargain. The plea bargain may be altered with the consent of the defendant. In particular, the trial court may impose additional conditions, such as the requirement that the defendant on bond actually appear at the date fixed for sentencing. The record must clearly reflect the defendant's understanding of and consent to, any conditions imposed by the trial court. Compare Brown v. Gammon, 947 S.W.2d 437 (Mo. App.1997) and Finley v. State, 891 S.W.2d 507 (Mo. App. 1994) for a discussion of whether the defendant was reasonably mistaken with respect to his understanding of the additional conditions imposed by the court. The two courts reached different results based on their respective views of the defendant’s understanding. See Cupp v. State, 982 S.W.2d 304 (Mo. App. 1998) for a discussion of the proper manner of imposing additional conditions.

 

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Section 33.4 Waiver of Counsel

 

Procedure. A defendant can enter a plea of guilty without an attorney. However, before accepting the plea, the court must obtain a ”written” waiver of counsel in compliance with §600.051, RSMo  (2006). In addition to the written waiver the record should reflect that the defendant understands his right to an attorney and is waiving that right. Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L. Ed. 2d 319 (1967); Peterson v. State, 572 S.W.2d 475 (Mo. banc 1978). The inquiry is substantially the same as when the defendant desires to represent himself at trial. The following is a sample form of inquiry concerning waiver of counsel, based on the colloquy in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L. Ed. 2d  562 (1975):

 

THE COURT: Mr./Ms. _______, you have advised me that you wish to discharge counsel and represent yourself. Is that correct?

DEFENDANT: Yes. [Any hesitation or equivocation at this point may terminate the whole exercise.]


THE COURT: Why don't you want counsel?


DEFENDANT: [Responds.]

THE COURT: You have the right to the assistance of counsel, although you do not have the complete freedom to choose counsel. Is the problem with this particular counsel, or do you simply wish to represent yourself?


DEFENDANT: [Must respond with positive statement indicating desire to represent himself.]


THE COURT: We have a saying that anybody who represents himself has a fool for a client. You are facing serious charges, and it is my duty to advise you that representing yourself would be a serious mistake. Do you want to reconsider?


DEFENDANT: [Unequivocal negative response needed.]


THE COURT: In that case, you must show me that you are giving up your right to an attorney knowingly, voluntarily and intelligently, and with full understanding of the possible consequences. Have you read and signed the written waiver form?


DEFENDANT: Yes, here it is. [The waiver should be marked as an exhibit and made part of the record at this time.]


THE COURT: Is that your signature?


DEFENDANT: Yes.


THE COURT: Please read me the first sentence or two of the form.

 

DEFENDANT: [Does so.]


THE COURT: I take it that you can read and write.


DEFENDANT: Yes.

 

THE COURT: Let's go through this waiver form point by point. Do you understand that you are charged with _______, which carries a range of punishment of _______?

 
DEFENDANT: Yes.

 

THE COURT: Do you understand that you have a right to a trial by jury on the charge?

 
DEFENDANT: Yes.

 
THE COURT: Do you understand that any plea bargain recommendations of the prosecutor are not binding upon the court and do not have to be accepted by the court?

 
DEFENDANT: Yes.

 
THE COURT: Do you understand that if you plead guilty or are found guilty of the charge, the court will most likely sentence you to prison time?

 
DEFENDANT: Yes.

 
THE COURT: Do you understand that you have a right to an attorney to represent you, and that one will be appointed for you free of charge if you cannot afford one?

 
DEFENDANT: Yes.

 
THE COURT: Do you understand that, acting as your own attorney, you will be opposed by an experienced prosecutor, and neither the judge nor the prosecutor will help you during the trial?

 
DEFENDANT: Yes.

 
THE COURT: Do you understand that you will be bound by the same rules of law, procedure and evidence as a lawyer.

 

DEFENDANT: Yes.

 
THE COURT: Do you understand that if you fail or refuse to follow proper procedure and engage in improper conduct, such as behaving in a rude, vulgar or obnoxious way, the trial will stop and you will not be allowed to represent yourself further?

 
DEFENDANT: Yes.

 
THE COURT: Do you understand that you will have to ask questions and present evidence in accordance with the technical legal rules?

 
DEFENDANT: Yes.

 
THE COURT: Do you understand that if you disrupt the trial or get fouled up by the rules of procedure, you will be much worse off than if you had a lawyer?

 
DEFENDANT: Yes.

 
THE COURT: Do you understand that if I have to stop the trial and bring a lawyer in to represent you, you and your lawyer will be at a serious disadvantage?

 
DEFENDANT: Yes.

 
THE COURT: Do you still want to proceed pro se?

 
DEFENDANT: Yes. [An equivocal response at this point could terminate the proceedings.]

 
THE COURT: Let's talk about the charges against you. Tell me what you know about the charges against you and their legal elements.

 
DEFENDANT: [Responds.]

 

THE COURT: Do you know whether the law requires proof of specific intent or general intent for any of the charges?

 
DEFENDANT: [Responds.]

 
THE COURT: Do you understand that unless you know the answers to these questions, you will be unable to prepare a defense properly, present evidence or object to improper evidence?


DEFENDANT: [Responds.]


THE COURT: Do you understand that there are three phases of the process: before trial proceedings, the trial, and proceedings after trial?


DEFENDANT: Yes.


THE COURT: Do you understand that various matters, such as objections to police searches, lineups, confessions, must be raised by proper motions before trial, or those objections will be lost?


DEFENDANT: [Responds.]


THE COURT: Do you understand that you are very likely to be convicted without a lawyer?


DEFENDANT: [Responds.]


THE COURT: Do you understand that it will be practically impossible for you to negotiate a plea bargain, a deal, with the prosecutor by yourself?


DEFENDANT: Yes.


THE COURT: Do you understand that if you go to trial, the first stage is jury selection, and you have to ask proper questions of the prospective jurors, know the legal grounds to objecting to jurors, and know how to make peremptory challenges?


DEFENDANT: [Responds.]


THE COURT: Do you understand that at trial you will have to know when and how to object to evidence that the prosecutor will offer, and that to do so you'll need to know something about hearsay evidence rules, relevancy, use of prior convictions to impeach witnesses, and that if you fail to make a proper objection, evidence will come in which will damage you with the jury?


DEFENDANT: [Responds.]


THE COURT: Do you understand that any questions you ask witnesses will have to follow the rules, and, if you don't, objections will be sustained?


DEFENDANT: [Responds.]


THE COURT: Do you understand that if you're the one asking questions, you might say something which will influence the jury against you or suggest that you know something you're trying to hide?


DEFENDANT: [Responds.]


THE COURT: Do you still want to be your own lawyer?


DEFENDANT: Yes.


THE COURT: Do you know what sentence you could get if the jury finds you guilty?


DEFENDANT: [Responds.]


THE COURT: Do you know the rules concerning how much time you will do if convicted? [Do you understand your status as a prior and persistent offender? Prior drug offender? Prior sex offender?]


DEFENDANT: [Responds.]


THE COURT: Do you know how to present an insanity defense and what could happen if you were found not guilty by reason of insanity?


DEFENDANT: [Responds.]


THE COURT: Do you understand that if you act as your own lawyer, and if you are convicted, you will not be able to come back to this or any other court and complain that your lawyer did not do an adequate job of representing you?


DEFENDANT: [Responds.]


THE COURT: Has anybody threatened you, mistreated you, offered you any promise or consideration, or in any way forced you to ask to act as your own lawyer?


DEFENDANT: No.


THE COURT: For the last time, I strongly advise you against it, but do you want to represent yourself?


DEFENDANT: Yes.


THE COURT: Option 1: The court finds that the defendant is incompetent to represent himself. Although he is mentally competent and understands his right to counsel, he does not understand his full range of rights nor does he understand the consequences of his contemplated act. I specifically find that the defendant has
not intelligently and voluntarily waived his right to be represented by counsel, and that to allow defendant to represent himself would deny due process.

 

Option 2: The court finds that the defendant is fully informed of his right to the assistance of counsel and understands that right. The court finds that the defendant is literate and mentally competent. The court finds that the defendant has knowingly, voluntarily and intelligently waived his right to be represented by counsel in this proceeding, with a full knowledge and understanding of the right and an understanding of the consequences and effect of waiver of that right. Accordingly, it is ordered that the defendant proceed in this matter pro se. [Defendant's current counsel is granted leave to withdraw on condition that he forthwith deliver to the defendant all discovery received to date, together with copies of the charges and all motions filed to date.]

 

Variation: The court appoints _______ to act as advisory and standby counsel to aid the defendant if and when he requests help, and to be available to represent the defendant in the event that the defendant so requests or the court finds it necessary to terminate defendant's self-representation due to misconduct of the defendant or for other proper reasons.
 

Written Waiver of Counsel. A written waiver of counsel is mandatory in Missouri before a defendant may act pro se. § 600.051, RSMo (2006); Peterson v. State, 572 S.W.2d 475 (Mo. banc 1978); State v. Wilkerson, 948 S.W.2d 440 (Mo.App. 1997); but see State v. Hunter, 840 S.W.2d 850 (Mo. 1992) where the court held that failure to obtain a written waiver of counsel does not constitute plain error. The waiver form should be signed by the defendant in the presence of the court or the clerk. The form is as follows:
 

[Title and Caption ]

Comes now _______, defendant in the above-captioned action and states to the court that he/she understands that he/she has a right to the assistance of counsel at all critical stages of this proceeding and that he/she freely, voluntarily, and intelligently desires to waive that right, and in support thereof states:
 

1. I understand that I am charged with _______.
2. I understand that I have a right to a trial and that this right includes a trial by jury.
3. I understand that the maximum possible sentence on the charge(s) is _______ imprisonment in jail and a fine of $_______, or both imprisonment and a fine. I understand that the minimum possible sentence is _______ imprisonment in jail or a fine in the amount of $_______, or by both such confinement and a fine.
4. I understand and am aware that any recommendations by a prosecuting attorney or other prosecuting official are not binding on the judge and that any such recommendations may or may not be accepted by the judge.
5. I understand that if I plead guilty to or am found guilty of the charge(s), the judge is most likely to impose a sentence of confinement.
6. I understand that, if I am indigent and unable to hire an attorney, I have a right to request the judge to appoint counsel to assist me in my defense against the charge(s).
________________________________________________________________
[Defendant's signature]

Witness: _______________________________ Date: ____________
 

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Section 33.5 Enforcement of Plea Bargain

 

State default. If the state defaults on its obligations under a plea bargain, the court in its discretion can either order specific performance of the plea bargain or provide the opportunity for the defendant to withdraw his guilty plea. Any resentencing at the trial level should be before a different judge. Proctor v. State, 809 S.W.2d 33 (Mo. App. 1991).

 

Trial court default - withdrawal of plea. In Welch v. State, 620 S.W.2d 401 (Mo. App. 1981), the appellate court denied the defendant the opportunity to withdraw his guilty plea upon finding that the sentencing court failed to follow the terms of a plea bargain. Citing Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L. Ed. 2d 427 (1971), the court in Welch held that the defendant was not entitled to plead anew, but rather,was entitled to the benefit of the original plea bargain. In accordance with the original plea, the court ordered the defendant's sentences to run concurrent with, rather than consecutive to the sentences imposed in an earlier case. 

 

Prosecutor's duty in regard to plea bargains. The prosecutor has no duty to keep a plea bargain offer open for any length of time. A "one-day only special" is not improper. If defendant fails to comply with his part of a plea agreement, even during the plea proceedings, the prosecutor can withdraw his offer. Stokes v. State, 688 S.W.2d 19 (Mo. App. 1985). Brady rules apply to guilty plea proceedings. Under principles of Brady v. State of Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), the state must disclose exculpatory evidence to the defendant, if there is a reasonable probability the failure to make such disclosure would alter defendant’s decision to plead guilty. See Scroggins v. State, 859 S.W.2d 704 (Mo. App. 1993).

 

Prosecutor's duty to perform. For example, if a prosecutor agrees to dismiss a charge upon the condition that the defendant pleads guilty on another charge and his promise serves as inducement to obtain the guilty plea, he cannot, thereafter, refuse to perform his promise. State v. Hoopes, 534 S.W.2d 26, 34 (Mo. banc 1976).

 

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Section 33.6 Alford Pleas

 

Defined. An "Alford plea" is a plea of guilty based upon certain precepts enunciated in North Carolina v. Alford, 400 U.S. 25,  91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Alford held that where there was strong evidence of guilt, a defendant is not constitutionally required to admit commission of the criminal act in order to plead guilty. See Bird v. State, 657 S.W.2d 315 (Mo. App. 1983) and Jenkins v. State, 788 S.W.2d 536 (Mo. App. 1990).

 

Function of Alford pleas. An Alford plea is a plea of guilty based on defendant's belief that he would receive a greater sentence if he stood trial than he would receive through a plea bargain agreement. North Carolina v. Alford, 400 U.S. 25,  91 S.Ct. 160, 27 L. Ed. 2d 162 (1970) ; Clemons v. State, 755 S.W.2d 711 (Mo. App. 1988.)

 

Stages and procedure.

 

 

Effect of Alford plea. A plea of guilty based upon the principles announced as constitutionally acceptable in Alford stands on equal footing with one in which an accused specifically admits the commission of the particular act charged. Pittman v. State, 796 S.W.2d 413 (Mo. App. 1990). An Alford plea, while not containing an admission of the commission of a crime, is a plea of guilty based on defendant's belief that he would receive a greater sentence if he stood trial than he would receive through a plea bargain agreement. Clemons v. State, 755 S.W.2d 711 (Mo. App. 1988).

 

There is no requirement for the acceptance of an Alford plea. Furthermore, most judges do not accept the plea. State v. Williams, 937 S.W.2d 330 (Mo. App. 1996). 

 

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Section 33.7 Withdrawal of Plea

 

Before sentencing. Rule 29.07(d) authorizes motions to withdraw guilty pleas before sentencing or a suspended imposition of sentence. After a court accepts an offered guilty plea, the defendant does not have an absolute right under all circumstances to withdraw his plea. Granting leave to withdraw a plea is within the trial court's discretion. State v. Tyler, 440 S.W.2d 470 (Mo. banc 1969). However, withdrawal of guilty plea must be allowed if:

 

 

After sentencing. A Rule 29.07(d) motion to withdraw plea after sentencing is proper only to correct a manifest injustice. The motion to withdraw cannot be used to raise claims which are properly part of a post-conviction motion to vacate under Rule 24.035. State v. Pendleton, 910 S.W.2d 268 (Mo. App. 1995); Row v. State, 680 S.W.2d 418 (Mo. App. 1984).

 

Procedure. The record should reflect all grounds the defendant is relying on in the motion to withdraw plea. The court must:

 

 

Appeal. The defendant has a right to appeal a denial, but the trial court's ruling will stand, unless it is clearly erroneous or there was an abuse of discretion. State v. Douglas, 622 S.W.2d 28 (Mo. App. 1981).

 

Evidence of withdrawn plea inadmissible. It is prejudicial error to permit the state to use a withdrawn plea of guilty in the trial. See Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927). Rule 24.02(d)(5) also bars the use of a withdrawn plea of guilty. It states in part:

 

"Evidence of a plea of guilty, later withdrawn, or if an offer to plead guilty to the crime charged or of any other crime, or of statements made in connection with, and relevant to any of the foregoing pleas or offers, is not admissible in any civil or criminal proceeding against the person who made the plea or offer."

 

The use of the withdrawn plea of guilty, and statements made in connection with it, constitutes reversible error and requires the judgment to be reversed and the cause remanded for new trial. See State v. Danneman, 708 S.W.2d 741 (Mo. App. 1986).

 

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Section 33.8 Appeal

 

Direct appeal from a guilty plea is limited to questions of the jurisdiction of the subject matter, and the sufficiency of the information or indictment. Tygart v. State, 752 S.W.2d 362 (Mo. App. 1988).

 

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Section 33.9 Effect of Plea

 

Double jeopardy. Jeopardy attaches on a guilty plea when the defendant is sentenced. Jones v. State, 771 S.W.2d 349 (Mo. App. 1989); but see Bally v. Kemna, 65 F.3d 104 (8th Cir. 1995). A guilty plea does not necessarily waive a claim of double jeopardy that is apparent on the face of the record.

 

Speedy trial. A guilty plea made voluntarily is conclusive of defendant’s guilt. It thereby waives any rights with regard statutory or constitutional guarantees to a speedy trial. Skelton v. State, 578 S.W.2d 333 (Mo. App. 1979).

 

Ineffective assistance claims. When an accused pleads guilty to an offense, effectiveness of counsel is material only to the extent that it affects whether the guilty plea was voluntarily and knowingly made. Oerly v. State, 658 S.W.2d 894 (Mo. App. 1983). A guilty plea waives complaints about counsel's failure to investigate the case. Estes v. State, 950 S.W.2d 539 (Mo. App. 1997).

 

Extended Interrogation of Defendant - Effect on Post-Trial Remedy Motions. The value of an extended interrogation of a defendant in a guilty plea hearing to a proper disposition of a post-trial remedy motion is well demonstrated in State v. Gentile, 781 S.W.2d 169 (Mo. App. 1989).

 

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Section 33.10 Transcript Prepared - When

 

Under amended Rule 24.03(b), a transcript of guilty plea proceedings is to be prepared whenever the sentence imposed requires delivery of the defendant to the Missouri Department of Corrections on any felony other than class C or D felonies. The transcript shall not be prepared otherwise, unless a motion is filed under Rule 24.035. The circuit clerk shall notify the court reporter that the motion has been filed, and the transcript shall be prepared within 30 days from the date the reporter receives the notice.

 

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Section 33.11 Forms

 

Guilty Plea Case Record/Docket Entry.

 

1. Case Record______ Judicial Circuit

                Division No.  ____            Circuit Judge    _____________________

 

CAUSE NO. __________ HEARING DATE __________,  20____ DEFENDANT __________ PLEA OF NOT GUILTY WITHDRAWN __________ PLEA OF GUILTY ENTERED __________ DEFENDANT SWORN __________ ORIGINAL CHARGE __________ AMENDED CHARGE __________ FINAL CHARGE __________ INDICTMENT ON __________ SUBSTITUTE INFORMATION IN LIEU OF INDICTMENT ON __________ INFORMATION ON __________ AMENDED INFORMATION ON __________ CONFINED ___ RACE ___ MARRIED ___ SEX ___ AGE ___ EDUCATION __________ BOND SET __________ BOND DENIED __________ BOND REVOKED __________ STATE'S ATTORNEY __________ DEFENDANT'S ATTORNEY __________ DATE OF OFFENSE __________ TIME OF OFFENSE __________ PLACE OF OFFENSE __________ VICTIM __________ WEAPON __________ PROPERTY INVOLVED IN CRIME __________ PROPERTY STOLEN IN CRIME __________ CO-PARTICIPANTS __________ PRIOR MISDEMEANOR CONVICTION __________ PRIOR FELONY CONVICTION __________ STATUTES __________ RANGE OF PUNISHMENT __________ STATE'S ATTORNEY RECOMMENDATION __________ SAR REQUESTED __________ WAIVED __________ ORDERED __________ PLEA OF GUILTY ACCEPTED __________ DEFENDANT FOUND GUILTY __________ OTHER NOTES ON CRIME AND GUILTY PLEA HEARING __________  SENTENCING

DATE __________ DATE OF HEARING __________ DEFENDANT'S PRESENT __________ STATE'S ATTORNEY __________ DEFENDANT'S ATTORNEY __________ GUILTY PLEA REVIEWED __________ SENTENCING ASSESSMENT REPORT REVIEWED BY COURT __________ BY DEFENSE ATTORNEY __________ EVIDENCE RECEIVED __________ ARGUMENT HEARD __________ SUSPENDED IMPOSITION OF SENTENCE __________ ALLOCUTION GRANTED __________ SENTENCE __________ EXECUTION OF SENTENCE SUSPENDED FOR ___ YEARS ___ PROBATION FOR ___ YEARS NOTES ON SENTENCING __________

 

CONDITIONS OF PROBATION:

1.      STANDARD CONDITIONS

2.      SPECIAL CONDITIONS: __________________________________________________________________________________________________________.

 

OTHER DISPOSITION: ____________________________________________________________________________________________________________________.

Docket Entry

       Judge's Docket Sheet - Guilty Plea/Sentencing Hearing Memorandum

Cause # __________ State v. __________

Division No.  _____

__________, 20 ___

 

State by Prosecuting Attorney __________

___        Defendant in person and by Attorney, ______.

___        Public Defender.

___        Hearing held.

___        Defendant sworn.

___        Defendant withdraws plea of not guilty and enters plea of guilty to______.

 

The Court accepts plea of guilty of the defendant and finds that his plea of guilty was freely and voluntarily given and knowingly made and the defendant knew the consequences of his plea when he entered it. Court finds defendant guilty beyond a reasonable doubt of __________.

___        Sentencing deferred to __________.

___        Sentencing Assessment Report ordered.

___        Imposition of sentence ordered suspended.

___        Allocution granted.

___        Defendant sentenced to __________.

___        Bond Set __________.

___        Credit for jail time served.

___        Execution of sentence suspended for __________ years.

___        Defendant placed on probation for __________ years.

___        Special Probation Order: __________

___        Probation denied.

___        Defendant committed accordingly.

___        Defendant advised of appeal rights.

___        Court costs are ordered taxed against the Defendant. Execution shall

               issue thereon as appropriate.

___        $7.50 Crime Victim Compensation Fund surcharge is assessed against

               defendant, payable to the Circuit Clerk. Execution shall issue thereon as

               appropriate.

___        State of Missouri shall have and recover of the defendant the sum of

               $__________ as additional Crime Victim Compensation Fund judgment.

___        Rule 29.07(b)(4) hearing held.

 

Dated: __________,  20___.

 

SO ORDERED:

 

_________________________________

Circuit Judge

 

Spoken Form

 

The following is a spoken form for a guilty plea:

 

THE COURT: State of Missouri versus _______, Case No. _______.  Do we have any announcements?

 

DEFENSE COUNSEL: Your honor, my client has authorized me to withdraw his former plea of not guilty and enter a plea of guilty at this time, pursuant to the recommendation of the State.

 

THE COURT: The clerk will swear in the defendant. [Defendant is sworn.] Mr./Ms. _______, do you agree with the announcement of your attorney that you wish to plead guilty pursuant to the State's recommendation?

 

DEFENDANT: [Responds.]

 

THE COURT: I am going to ask you a series of questions before I accept your plea, which I do not have to accept. If, as we go along, there is anything that you don't understand or if you have any questions for me or your attorney, please speak up. Will you do that?

 

DEFENDANT: [Responds.]

 

THE COURT: Give me your full name.

 

DEFENDANT: [Responds.]

 

THE COURT: Are you known by any other names or aliases?

 

DEFENDANT: [Responds.]

 

THE COURT: What is your date of birth?

 

DEFENDANT: [Responds.]

 

THE COURT: Are you married or single?

 

DEFENDANT: [Responds.]

 

THE COURT: Do you have any dependents/children?

 

DEFENDANT: [Responds.]

 

THE COURT: How far have you gone in school?

 

DEFENDANT: [Responds.]

 

THE COURT: Where are you employed?

 

DEFENDANT: [Responds.]

 

THE COURT: Do you have any health or hearing problems?

 

DEFENDANT: [Responds.]

 

THE COURT: Are you under the influence of any drugs, alcohol or narcotics today?

 

DEFENDANT: [Responds.]

 

THE COURT: Are you taking any kind of medication for any reason?

 

DEFENDANT: [Responds.]

 

THE COURT: Have you ever had any problems with your mental health?

 

DEFENDANT: [Responds.]

 

THE COURT: Do you understand that you are charged before me today by indictment/information with [describe offense]?

 

DEFENDANT: [Responds.]

 

THE COURT: Have you discussed the charge(s) with your attorney?

 

DEFENDANT: [Responds.]

 

THE COURT: Has your attorney explained the charge(s) so that you believe you understand it (them)?

 

DEFENDANT: [Responds.]

 

THE COURT: Mr./Ms. [defense counsel], have you discussed the charge(s) with your client?

 

DEFENSE COUNSEL: [Responds.]

 

THE COURT: Do you believe he understands the charge(s)?

 

DEFENSE COUNSEL: [Responds.]

 

THE COURT: [Addressing the defendant] What do you believe the prosecutor will recommend on your sentence today?

 

DEFENDANT: [Responds.]

 

THE COURT: Do you understand that the prosecutor's recommendation will become the sentence and judgment of the Court, if I accept this plea?

 

DEFENDANT: [Responds.]

 

THE COURT: At this time, I'm going to have the prosecutor tell me what the State's evidence will be if this case were to go to trial. Please listen to him; when he finishes, I will be asking you some more questions.

 

PROSECUTOR: [Describes the material facts which would be proved beyond a reasonable doubt by competent and available evidence, including all essential elements of each offense charged.]

 

THE COURT: You have heard the prosecutor's statement. Was that accurate?

 

DEFENDANT: [Responds.]

 

THE COURT: Is that what you actually did?

 

DEFENDANT: [Responds.]

 

(For Alford pleas, following the prosecutor's statement of the State's case, the colloquy at this point should be as follows:

THE COURT: Mr./Ms. [defendant], you heard the prosecutor's statement. I understand that you do not necessarily admit that you did what he says you did, but do you agree that he has accurately described what the State's evidence would be at trial?

 

DEFENDANT: [Responds.]

 

THE COURT: Based on the prosecutor's statement, do you believe that you will be found guilty by a jury if you went to trial?

 

DEFENDANT: [Responds.]

 

THE COURT: What is the range of sentence in this case?

 

PROSECUTOR: [Responds.] [For cases arising after August 28, 1994, the effective date of the amended sentencing statute, Section 558.019, RSMo, it is important that the prosecutor or the court place on the record some recognition of the possibility of a minimum term if the defendant has previously served time in the Department of Corrections, so that the defendant acknowledges his understanding of the new scheme of sentencing at the time of the plea.]

 

THE COURT: What is the State's recommendation?

 

PROSECUTOR: [Responds.]

 

THE COURT: [To the defendant.] You have heard the range of sentence and the prosecutor's recommendation, correct?

 

DEFENDANT: [Responds.]

 

THE COURT: Is the prosecutor's recommendation what you expected it would be?

 

DEFENDANT: [Responds.]

 

THE COURT: Has anyone promised you anything to get you to plead guilty, other than what the prosecutor has recommended on your sentence?

 

DEFENDANT: [Responds.]

 

THE COURT: Are there any charges pending against you in this or any other court at this time?

 

DEFENDANT: [Responds.]

 

THE COURT: Have you discussed this case fully with your lawyer?

 

DEFENDANT: [Responds.]

 

THE COURT: Has your lawyer fully advised you as to all parts of your case?

 

DEFENDANT: [Responds.]

 

THE COURT: Has your lawyer explained all your legal rights and what could happen to you as a result of your plea?

 

DEFENDANT: [Responds.]

 

(For Alford pleas, the following should be included:

THE COURT: Have you discussed all your options with your lawyer?

 

DEFENDANT: [Responds.]

 

THE COURT: Has your lawyer discussed with you all the strengths and weaknesses of the State's case?

 

DEFENDANT: [Responds.]

 

THE COURT: Do you understand that, for purposes of this case, even though you are not admitting that you committed the crime charged, your guilty plea will allow me to find you guilty and sentence you in this case in the same way as a regular guilty plea?

 

DEFENDANT: [Responds.]

 

THE COURT: Have you had enough time to talk about the case with your lawyer?

 

DEFENDANT: [Responds.]

 

THE COURT: Has your lawyer answered all of your questions?

 

DEFENDANT: [Responds.]

 

THE COURT: Has your lawyer refused to do anything you asked him to do?

 

DEFENDANT: [Responds.]

 

THE COURT: Do you have any complaints about your lawyer?

 

DEFENDANT: [Responds.]

 

THE COURT: Are you satisfied with his services?

 

DEFENDANT: [Responds.]

 

THE COURT: Has your lawyer talked to every potential witness that you think he should have talked to?

 

DEFENDANT: [Responds.]

 

THE COURT: Do you understand that you would be entitled to a trial by jury instead of pleading guilty?

 

DEFENDANT: [Responds.]

 

THE COURT: Do you understand that in a jury trial, you would be entitled to certain rights, including a jury of 12 people?

 

DEFENDANT: [Responds.]

 

THE COURT: Do you understand that the jury would be instructed that you are presumed innocent?

 

DEFENDANT: [Responds.]

 

THE COURT: Do you understand that the jury would also be instructed that the State must prove you guilty of the charge(s) beyond a reasonable doubt?

 

DEFENDANT: [Responds.]

 

THE COURT: Do you understand that all 12 members of the jury would have to agree to your guilt on a charge or you would not be found guilty of that charge?

 

DEFENDANT: [Responds.]

 

THE COURT: Do you understand that you would have the right to testify or not to testify at the trial as you alone chose?

 

DEFENDANT: [Responds.]

 

THE COURT: Do you understand that, if you chose to remain silent at the trial, no comment about your silence could be made by the Court or the prosecutor?

 

DEFENDANT: [Responds.]

 

THE COURT: Do you understand that the State would have to bring into open court all the witnesses against you, and your lawyer would have the right to cross-examine those witnesses?

 

DEFENDANT: [Responds.]

 

THE COURT: Do you understand that, if you had any evidence or witnesses that you wanted to present at trial, you would have the right to do so?

 

DEFENDANT: [Responds.]

 

THE COURT: Do you understand that people can be forced by the Court to come to trial to testify for the defense?

 

DEFENDANT: [Responds.]

 

THE COURT: Do you understand that you would have the right to appeal a guilty verdict to a higher court?

 

DEFENDANT: [Responds.]

 

THE COURT: Do you understand that, by pleading guilty, you are giving up all of the rights that we have just discussed, as well as any objection to the way the police obtained the evidence against you, and there will not be a trial?

 

DEFENDANT: [Responds.]

 

THE COURT: Do you have any questions to ask me or your lawyer, before we go any further?

 

DEFENDANT: [Responds.]

 

THE COURT: Has anyone threatened you, intimidated you, mistreated you, or any member of your family, in order to get you to plead guilty against your will?

 

DEFENDANT: [Responds.]

 

THE COURT: A  sentencing assessment report will be ordered [is waived by you]. Has anyone made any promises to you about probation?

 

DEFENDANT: [Responds.]

 

THE COURT: Do you understand that probation is entirely up to me, and I have made no promises? [Of course, if the plea bargain calls for probation, this question need not be asked.]

 

DEFENDANT: [Responds.]

 

THE COURT: Do you understand that, even if the probation office recommends that I put you on probation, I do not have to follow that recommendation?

 

DEFENDANT: [Responds.]

 

THE COURT: Do you understand that, if I choose not to put you on probation, you cannot take back your plea of guilty for that reason?

 

DEFENDANT: [Responds.]

 

THE COURT: In light of everything that you have said, are you telling me that you are guilty, of your own free will, because you are guilty as charged?

 

DEFENDANT: [Responds.]

(For Alford pleas, the following should be included instead of the preceding question:

 

THE COURT: Have you answered my questions today of your own free will?

 

DEFENDANT: [Responds.]

 

THE COURT: Do you wish to plead guilty, rather than go to trial and risk greater punishment?

 

DEFENDANT: [Responds.]

 

THE COURT: Are you pleading guilty because you believe that you will be found guilty after a trial, with the likelihood of more severe punishment?

 

DEFENDANT: [Responds.])

 

THE COURT: At this time, I will ask you, how do you plead to the charge of _______, guilty or not guilty?

 

DEFENDANT: Guilty.

 

THE COURT: The Court finds that the defendant's plea(s) of guilty is (are) made voluntarily and intelligently, with a full understanding of the charge and the consequences of the plea, and with an understanding of his rights attending a jury trial and the effect of a plea of guilty on those rights. The Court also finds that there is a factual basis for the plea. [For Alford pleas: The Court further finds that the State has a substantial case on the merits against the defendant, and that, if this case were taken to trial, there is an overwhelming likelihood that the defendant would be convicted and suffer a more severe sentence than recommended at this time by the State.] The Court therefore accepts the defendant's plea(s) of guilty to the charge(s) of _______, and finds the defendant guilty of the charge(s) beyond a reasonable doubt. [Sentencing will be deferred to _______.] OR [The Court will now proceed with sentencing.]

 

Written Form

 

The following is a written form of plea used in some jurisdictions in Missouri, but its use must be supplemented by oral inquiry by the court.

 

IN THE CIRCUIT COURT OF _____________________ COUNTY, MISSOURI
 

STATE OF MISSOURI,
vs.                                                                                           Cause No. CR_______  
________________________                                          Division _____
Defendant.
 

PETITION TO ENTER PLEA OF GUILTY

 

Instructions for completion of Petition:
1. Defendant is to complete this petition in his/her own handwriting. Please print legibly.
2. Defendant and his/her attorney are to sign each page at the bottom where indicated.
3. Defense counsel is to submit this Petition to the Prosecutor for approval before the Guilty Plea Hearing.
4. Defense counsel is to have the Court Reporter mark the Petition as "Defendant's Exhibit 1" before the Guilty Plea Hearing.)
 

The defendant states to the Court:
1. My full name is _______. I am _______ years of age. I have _______ years of education. I understand that I have the right to remain silent and not to speak or execute any written instrument, including this document, and anything I say can be used against me.
2. I am represented by a lawyer. His/her name is: ____________________.
3. I received a copy of the Information or Indictment and understand that I am charged with the crime(s) of:
______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.
I read the charge(s) against me and have discussed this with my lawyer. I fully understand every charge made against me.
4. I told my lawyer all the facts, names and witnesses and circumstances known to me about the charges made against me in the Information or Indictment. I believe that my lawyer is fully informed on all such matters.
5. I know that the Court must be satisfied that there is a factual basis for a PLEA OF GUILTY before my plea can be accepted. I  represent to the Court that I did the following acts in the_____________, Missouri, on _______________ (date of offense) at _______________ (place of offense) in connection with the charge(s) made against me:
_______________________________________________________________________________________________________________________________________________________________________________________________.
(In the above space, defendant set out in detail what he/she did. Attorneys are to see that all elements of the crime are covered. If more space is needed, add a separate page.)
6. My lawyer has counseled and advised me on the nature of each charge, on all lesser-included charges, if any, and on all possible defenses that I might have in this case.
7. I know that I have certain constitutional rights which I will be giving up by pleading guilty. These rights are as follows:
 

  1. I have the right to a trial by jury or judge (my choice). I know that I am not required to plead guilty. I know that by pleading guilty I will be giving up my right to a trial and giving up any opportunity that I might have to present any defenses to the charge(s) that the state has brought against me;

  2. I know that I have the right to the assistance of a lawyer at all stages of the proceedings;

  3. During any trial, I would have the right to remain silent. I understand I do not have to take the witness stand or say anything that would in any way incriminate me. I understand that the court would instruct any jury that, if I do remain silent, no inference of guilt may be drawn from my failure to testify.

  4. I know that I am entitled to a presumption of innocence throughout the proceedings and that the burden would be on the state to prove my guilt beyond a reasonable doubt;

  5. I know that before any jury could find me guilty, all 12 jurors would have to agree that I was guilty;

  6. I know that I have the right to confront and cross-examine the state's witnesses, that I may present witnesses and evidence on my behalf and that, if necessary, I have the right to use the subpoena power of the court to compel the production of any evidence in my favor, including the attendance of any witnesses;

  7. I know that if I were to go to trial and be found guilty, I would have the right to appeal this decision to a different court with different judges but that by pleading guilty, I give up my right to any appeal and that there is no appeal from a guilty plea. I understand all of my constitutional rights and it is my desire to freely and voluntarily give up these rights in connection with this guilty plea. I know that if I enter a plea of guilty and receive probation from the judge of Division ___, I have the right to have this case remain with Division ___. Nevertheless, I agree that Division  ___ may transfer this case to another judge to handle all post guilty plea matters including all Rule 24.035 motions and probation violation hearings.

8. My lawyer informed me that the range of punishment which the law provides in this case is: _______________________________________________________________________________________________________________________________________________________________________________________________.
9. If I am presently on probation or parole in this or any other court, I know that by pleading GUILTY here, my probation or parole may be revoked, and I may be required to serve time in that case which may be consecutive, that is, in addition to any sentence imposed upon me in this case.
10. I understand the plea bargain agreement to be: ____________________

________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

(here insert any promises or concessions made to the defendant or his/her attorney. If none, insert "No promises or concessions have been made to me or my attorney.") If anyone made any promises or suggestions, except as noted in this paragraph I know that he/she had no authority to do it.

11. Neither I, nor any of my friends or loved ones, has been mistreated, threatened, coerced, or forced in any manner by anyone to get me to plead GUILTY, nor were there any promises, inducements, or representations made except as set forth in Paragraph #10 above.

12. I state to the court that my attorney has done everything I have asked him/her to do, including interview all my witnesses. My attorney has not refused to do anything or failed to do anything that I have asked him/her to do. In my opinion, my attorney has done everything he/she could do on my behalf under the circumstances of this case. I am fully satisfied with the legal services my attorney has given to me. I have had ample time to talk to my lawyer, family members and friends and ask the court to accept my guilty plea without further delay.
13. I know that the court will not permit anyone to plead guilty who is innocent. I state to the court that I am pleading guilty to ____________________________ ________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________ and I honestly believe that I am guilty of this/these crime(s).
14. I have not in the past suffered from any mental disease or illness and have never been treated by a doctor or psychiatrist for a mental or emotional condition other than: ________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________.

(Please list date, place, diagnosis, treatment, and doctor, if known. If none, so state.)
My mind is clear and I am not mentally ill. I am not under the influence of alcohol or drugs, and I am not under a doctor's care. The only drugs, alcohol, or medicines that I have taken within the past three (3) days are: ________________________________________________________________________________________________________________________________.
(If none, so state)

___________________________________ ___________________________________
DEFENDANT ATTORNEY

15. I OFFER MY PLEA OF GUILTY FREELY AND VOLUNTARILY AND OF MY OWN ACCORD AND WITH FULL UNDERSTANDING OF ALL THE MATTERS SET FORTH IN THE INFORMATION OR INDICTMENT AND IN THIS PETITION.
16. I HAVE READ, AND MY ATTORNEY HAS EXPLAINED TO ME THIS PETITION TO ENTER PLEA OF GUILTY. EACH OF THESE  ___ PAGES WERE SIGNED BY ME IN THE PRESENCE OF MY ATTORNEY THIS _______ DAY OF _______,  20__.
________________________________________________________________    
DEFENDANT
________________________________________________________________
ATTORNEY
 

FINDING OF FACTS BY THE COURT

 

Based upon the foregoing Petition to Enter Plea of Guilty, completed and signed by the defendant, the truth of which Defendant acknowledged in open Court and based upon the statements of defendant and defense counsel made in open Court, the Court makes the following findings in this case:
 

THE COURT FINDS THAT THE DEFENDANT UNDERSTANDS THE CHARGE(S) AGAINST HIM/HER AND THE CONSEQUENCES OF HIS/HER PLEA. THE DEFENDANT HAS BEEN ADVISED OF HIS/HER RIGHTS, UNDERSTANDS THEM, AND VOLUNTARILY, FREELY, AND INTELLIGENTLY WAIVES THOSE RIGHTS. THE DEFENDANT IS ABLE TO UNDERSTAND AND ASSIST HIS/HER ATTORNEY. THE DEFENDANT HAS BEEN ABLY AND COMPETENTLY ASSISTED BY HIS/HER ATTORNEY. THERE IS NO PROBABLE CAUSE TO BELIEVE DEFENDANT HAS RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL. THE DEFENDANT HAS NO MENTAL DISEASE OR DEFECT DEFENSE. THE DEFENDANT'S DECISION TO PLEAD GUILTY HAS BEEN MADE FREELY AND VOLUNTARILY AND INTELLIGENTLY. THE COURT FINDS THERE IS A FACTUAL BASIS FOR THE PLEA. THE COURT FINDS BEYOND A REASONABLE DOUBT THAT THE DEFENDANT IS GUILTY OF THE CRIME CHARGED. THE PLEA OF GUILTY IS ACCEPTED.

________________________________________________________________
DATE                                                                         JUDGE

c:         Prosecuting Attorney
            Defense Attorney
            Defendant
            Court Reporter
 

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