State ex rel. Howard J. Verweire, Petitioner v. Steven Moore, Superintendent, Western Missouri Correctional Center, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion

Case Style: State ex rel. Howard J. Verweire, Petitioner v. Steven Moore, Superintendent, Western Missouri Correctional Center, Respondent. Case Number: SC87445 Handdown Date: 12/19/2006 Appeal From: ORIGINAL PROCEEDING IN HABEAS CORPUS Counsel for Appellant: Kent E. Gipson Counsel for Respondent: Andrew W. Hassell Opinion Summary: This summary is not part of the opinion of the Court. It has been prepared by the Communications Counsel for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court and should not be quoted or cited. The opinion of the Court, which may be quoted, follows the summary. In October 1999, an intoxicated Howard Verweire had a confrontation with a juvenile male who stepped in front of Verweire, blocking Verweire's view of a 14-year-old female at an arcade. Obscenities were exchanged, and Verweire pulled out a semi-automatic pistol, approached the boy, grabbed the boy's neck, jabbed the pistol in the boy's side and cheek, and told the boy he would blow his head off. Verweire left the arcade and was arrested shortly thereafter while still in possession of the pistol. The state charged Verweire with first-degree assault and unlawful use of a weapon. Without the benefit of a plea bargain and on advice of his appointed counsel, Verweire pleaded guilty in the Taney County circuit court to both counts and was sentenced to concurrent terms of 10 years in prison for the assault charge and five years in prison for the weapon charge. He filed neither a direct appeal nor a postconviction relief proceeding. Instead, he petitioned the circuit court of DeKalb County, where he is imprisoned, for a writ of habeas corpus, which was denied, and then he filed an identical petition in the court of appeals. He alleged that he actually was innocent of assault; that the state had not adduced a sufficient factual basis for that charge at the time of his plea, as required by Rule 24.02(e); and that, as

such, he did not enter his plea knowingly and voluntarily as required by the due process clause. The court of appeals ultimately quashed its preliminary writ in a published opinion. Verweire v. Moore, 168 S.W.3d 518 (Mo. App. 2005). This Court refused to grant transfer. Verweire now seeks a writ from this Court on the same grounds. PETITIONER ORDERED DISCHARGED WITH DIRECTIONS. Court en banc holds: Habeas corpus relief is available even in the absence of a direct appeal or a postconviction relief motion if the petitioner can demonstrate manifest injustice by showing that a constitutional violation probably resulted in the conviction of one who is actually innocent. This case presents the rare situation in which a criminal defendant pleaded guilty to a crime he did not commit. To obtain a first-degree assault conviction, the state must prove the defendant took a "substantial step" toward commission of the offense, strongly corroborating the firmness of the defendant's conscious purpose to attempt to cause serious bodily injury to another person. None of the evidence presented here, however, sufficiently established that Verweire took a substantial step toward committing first-degree assault or strongly corroborated that it was Verweire's conscious object to carry out his verbal threat. Rather, Verweire did not pull the trigger and soon retreated from the altercation without ever attempting to fire the pistol, and the state concedes there is no other evidence of guilt. Under these circumstances, Verweire did not have the intent to cause serious physical injury and cannot be convicted of first-degree assault. He is actually innocent of this offense, there was no factual basis for his guilty plea, and his plea was not entered knowingly and voluntarily. The judgment on the assault charge is vacated, Verweire is permitted to withdraw his plea, and he is remanded to the Taney County sheriff's custody to await further proceedings on any lesser-included offenses. This is a rare and exceptional case in which the Court can determine from the face of the record of the guilty-plea proceeding that the defendant pleaded guilty to a crime he or she did not commit. In nearly all other cases, however, manifest injustice or miscarriage of justice still will require a showing of newly discovered evidence of actual innocence pursuant to Clay v. Dormire, 37 S.W.3d 214, 217 (Mo. banc 2000). Citation: Opinion Author: Stephen N. Limbaugh, Jr., Judge Opinion Vote: PETITIONER ORDERED DISCHARGED WITH DIRECTIONS. All concur. Opinion: This slip opinion is subject to modification until the Court has ruled on the parties' motions for rehearing, if any, and will become final only after the Court issues its mandate. To see when the Court issues its mandate, please check the docket entries

for the case on Case.net. Opinion modified by Court's own motion on January 30, 2007. This substitution does not constitute a new opinion. This case presents the rare situation in which a criminal defendant pled guilty to a crime he did not commit. In June 2000, petitioner, Howard J. Verweire, pled guilty in the Circuit Court of Taney County to one count of assault in the first degree, section 565.050, RSMo 1994, and one count of unlawful use of a weapon, section 571.030.1, RSMo Supp.

1. He petitioned this Court for a writ of habeas corpus claiming actual innocence on the assault charge and a due

process violation in that there was no factual basis for the plea to that charge. This Court has jurisdiction. Mo. Const. art. V, sec. 4. Having determined that habeas corpus relief is warranted, the judgment on the assault charge is vacated, petitioner is permitted to withdraw his plea, and he is remanded to the custody of the sheriff of Taney County. The pertinent facts giving rise to the first-degree assault conviction are not in dispute. On October 9, 1999, petitioner, an intoxicated, middle-age male, was watching a group of juveniles who had congregated at an arcade. He had been staring at a particular female juvenile for approximately fifteen to twenty minutes when a male member of the group, Alex Crompton, stepped in between them. Petitioner told Crompton that he "was blocking [petitioner's] view," and Crompton, who was attempting to protect the female, twice responded that she was only fourteen years old. Obscenities were exchanged, and petitioner pulled out a semi-automatic pistol, approached Crompton, grabbed Crompton's neck, jabbed the pistol in Crompton's side and cheek, and told Crompton that he would "blow his [f-ing] head off." Petitioner then left the arcade and shortly thereafter was arrested in possession of the pistol, which contained one round of ammunition in the chamber and six rounds in the magazine. The State charged petitioner in a two-count information. The first count, which is the only count to which the petition is addressed, alleged that petitioner committed the class B felony of assault in the first degree by "attempting to cause serious physical injury to a male juvenile by grabbing him by the throat while holding a .25 caliber handgun to his chest and his head and then pushing him." The second count, which is not in dispute, charged petitioner with the class D felony of unlawful use of a weapon, a charge arising from the fact that the handgun was found concealed on petitioner's person when he was arrested. Without the benefit of a plea bargain and upon advice of his retained counsel, petitioner pled guilty to both counts and thereafter was sentenced to concurrent terms of imprisonment of ten years on the first count and five years on the second. After commencement of the sentences, petitioner was released on probation under the 120-day callback statute, but his probation was later revoked, and he is now serving the sentences at the Western Missouri Correctional Center.

The procedural posture of the case is unconventional. There was no direct appeal nor any Rule 24.035 proceeding. Instead, Verweire filed an initial petition for writ of habeas corpus in the Circuit Court of DeKalb County, which was denied, and a subsequent, identical petition in the Court of Appeals, Western District. In that petition, Verweire alleged that he was actually innocent and that a sufficient factual basis for the guilty plea had not been adduced at the time of the plea as required under Rule 24.02(e), and that, as such, the plea was not knowingly and voluntarily entered as required under the Fourteenth Amendment's Due Process Clause. The Court of Appeals issued a preliminary writ and appointed a special master who took evidence from both the petitioner and the State on the sufficiency of the plea, but the Court of Appeals then quashed the writ in a published opinion. Verweire v. Moore, 168 S.W.3d 518 (Mo. App. 2005). This Court refused to grant transfer of the Court of Appeals case even though that case presented the very same claims as those set out in the writ petition that was refiled in this Court and on which the writ now issues. Habeas corpus relief is available even in the absence of a direct appeal or a Rule 24.035 post-conviction relief motion where petitioner can demonstrate "manifest injustice or miscarriage of justice" by showing that "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Clay v. Dormire, 37 S.W.3d 214, 217 (Mo. banc 2000). Here, petitioner claims that the record made at the plea hearing and at the subsequent hearing conducted by the master appointed by the Court of Appeals was insufficient as a matter of law to establish that petitioner attempted to cause serious physical injury to Compton. If so, a due process violation did indeed result because there was no factual basis for the plea, and as such, the plea cannot be said to have been knowingly and voluntarily entered. McCarthy v. U.S., 394 U.S. 459, 466 (1969). The precise issue before us is whether Verweire's conduct constituted a substantial step toward commission of the offense of first-degree assault. A person commits first-degree assault if he "attempts to cause serious bodily injury to another person." Sec. 565.050. A person attempts to commit an offense when "with the purpose of committing the offense, he does any act which is a substantial step towards commission of the offense." Sec. 564.011, RSMo 1994. "A 'substantial step' is conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense." Id. Further, section 562.016.2, RSMo 1994, defines the requisite mental state for first-degree assault, providing that "[a] person acts purposefully, or with purpose, with respect to his conduct or to a result thereof when it is his conscious object to engage in that conduct or to cause that result." Thus, for a conviction of attempt to commit serious physical injury to another, the State must prove the specific intent to commit the crime allegedly attempted. Whalen, 49 S.W.3d at 186. One does not, however, "attempt to commit a crime by negligently endangering the person or property of another however

great the danger or extreme the negligence." Id. at 187 n. 5 (quoting R. Perkins, Criminal Law, 573-74 (2d ed. 1969)). When determining a defendant's mental state, the Court may look to the defendant's conduct before, during and after the act. State v. Hineman, 14 S.W.3d 924, 927-28 (Mo. banc 1999). In the case at hand, the evidence was not sufficient to establish that Verweire took a substantial step toward commission of the offense of first-degree assault. It is undisputed that when Verweire aimed the pistol at Crompton, he did not pull the trigger and that he soon retreated from the altercation without ever having attempted to fire the pistol. Under these circumstances, he did not have the intent to cause serious physical injury, but merely threatened to do so. This is not a case like those in which the defendant was convicted because he would have injured the victim but for the malfunctioning of his weapon or the intervention of law enforcement. See, e.g., State v. Unverzagt, 721 S.W.2d 786, 788 (Mo. App. 1986) (evidence showing defendant pointed an unloaded revolver, believing it to be loaded, at another person four feet away and pulled the trigger two or three times was sufficient to show intent to cause serious physical injury); State v. In re J–R–N–, 687 S.W.2d 655, 656 (Mo. App. 1985) (evidence showing that defendant entered a hotel carrying a lug wrench and announced that he was there to assault the manager but was stopped by a police officer was sufficient to show intent to cause serious physical injury). Nor is this a case in which the defendant attempted to cause serious physical injury but only minor injury resulted from his actions. See, e.g., State v. White, 798 S.W.2d 694, 697 (Mo. banc 1990) (evidence showing that defendant threw the victim to the floor, told the victim to "shut up or I will stab you," and cut the victim without causing serious physical injury was sufficient to show intent to cause serious physical injury). Furthermore, although the State contends that Verweire's statement threatening to "blow [Crompton's] head off" provides the necessary intent to commit first-degree assault, a mere threat with the ability to carry out that threat does not necessarily constitute an attempt to commit a crime. Instead, there must be strongly corroborating evidence that it was the defendant's conscious object to carry out the threat. Under the state's approach, however, every threat with a deadly weapon would constitute a substantial step toward the commission of first-degree assault. But again, in this case, the fact that Verweire voluntarily withdrew from the altercation without having fired or attempted to fire his weapon strongly negates any intent to seriously injure Crompton. That is not to say, of course, that Verweire did not commit some other assault offenses, such as the lesser included offenses of assault in the third degree by "purposely plac[ing] another person in apprehension of immediate physical injury" and "knowingly caus[ing] physical contact with another person knowing the other person will regard the contact as offensive or provocative." Sec. 565.070(3), (5), RSMo 1994. Given that the evidence presented at the plea hearing and at the hearing before the special master was insufficient to establish the mental element of assault in the first degree by attempting to cause serious physical injury, and

given the fact that the state concedes that there is no other evidence of guilt, this Court holds that Verweire is actually innocent of the offense, that there was no factual basis for the guilty plea, and that his plea was not knowingly and voluntarily entered. Although in nearly all cases, manifest injustice or miscarriage of justice will require a showing of newly discovered evidence of actual innocence, Clay v. Dormire, 37 S.W.3d at 217, that requirement is not applicable in those rare and exceptional cases, such as this one, where the court can determine from the face of the record of the guilty plea proceeding that the defendant pleaded guilty to a crime he or she did not commit. After all, the requirement of newly discovered evidence of actual innocence presupposes that the evidence presented at the plea hearing did not establish actual innocence, which in this case it did, as a matter of law. The judgment of the conviction as to Count I is vacated, petitioner is permitted to withdraw his plea, and he is remanded to the custody of the sheriff of Taney County to await further proceedings on any lesser included offenses. All concur. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.