Floyd Harrison Hulett v. State Missouri

An information charged that on February 9, 1969, Floyd Harrison Hulett, Ronald Eugene Brammer and Kenneth Lee Twyman broke into a building and office, Banner Loan Company, on Allen Street in Centralia and stole ""(three) hundred and some odd dollars."" In describing the burglary and theft the appellant Hulett said, ""I kicked the back door open. * * * Just as charged - I broke into the building and took the money."" After a severance and at least four continuances, all at his instigation, Hulett on October 2, 1969, entered a plea of guilty and was sentenced to eight years imprisonment for the burglary and five years for stealing, the sentences to run concurrently. V.A.M.S. § 560.095 and Supp. § 560.110. In February 1970 Hulett instituted this 27.26 proceeding, on July 23, 1970, he amended the motion and on July 24th proceeded to a hearing with court-appointed counsel after the withdrawal of previously appointed counsel. The trial court made full findings of fact and Conclusions of law and Hulett has appealed from the final order denying 27.26 relief. Counsel has briefed and orally argued four points, the fourth of which Hulett, because of obvious inconsistency, has personally withdrawn. The three remaining points are ineffective assistance of counsel, that he did not waive his right to counsel and most important that the court erred in not finding that his guilty plea was ""not voluntary under the circumstances * * * because Hulett felt he could not receive a fair trial if he had to represent himself or if he was forced to proceed to trial with unprepared counsel and as an alternative to doing either he entered the plea of guilty to avoid an unfair trial."" (Emphasis supplied.) As others have pointed out the claims of ineffective counsel and involuntary plea of guilty are ""concomitant"" issues (Colson v. Smith, 438 F.2d 1075, 1078) and thus it is not necessary to separately consider the appellant's points. And it may be added that a defendant is entitled to the effective assistance of counsel in determining how to plead and in making his plea. There is a distinction, however, in counsel's duty to a client standing trial and one pleading guilty, when a plea is entered counsel's duty is to ""ascertain if the plea is entered voluntarily and knowingly."" Colson v. Smith, 438 F.2d l.c. 1078; Lamb v. Beto, 423 F.2d 85, and see then Judge Burger in Edwards v. United States, 256 F.2d 707, 709.