¶1(dissenting).
¶2I respectfully dissent, because I can not agree with the conclusion reached in the majority opinion nor with the rule of law announced and upon which such opinion is predicated.
¶3The opinion agrees that if petitioner was illegally confined in the county jail in violation of the Juvenile Code, Chapter 211, V.A.M.S., at the time he made a confession, such statements would not have been admissible at a later trial. State v. Arbeiter, Mo., 408 S.W.2d 26. It is then determined that the illegal confession does not provide a basis for a collateral attack on the judgment of conviction entered upon a plea of guilty understandingly and voluntarily entered, but is only a factor to be considered.
¶4The two cases cited as authority on this proposition, I respectfully submit, are neither factually similar nor applicable in the instant case. This, primarily, because the plea of guilty in each was made with advice of counsel, which is the crucial question here since petitioner did not have such advice.
¶5As to the Busby case from which the majority opinion quotes, it is my opinion the court there assumed that the statement as made, and now quoted, contemplated the plea was with advice of counsel. Prior to making the statement on which the majority *899opinion rests, at 1. c. 77 at 356 F.2d, the court said: “It is settled by a host of authorities that a judgment on a plea of guilty which has been entered voluntarily on advice of counsel is not rendered invalid because the defendant had previously made a confession under circumstances which might have rendered it inadmissible in evidence if the defendant had pleaded not guilty and had gone to trial.” (Emphasis added.)
¶6In the other case cited, Mitchell v. State, the defendant not only had advice of counsel, but it was concluded: “… the confession was voluntary and we think it would have been admissible on trial.”
¶7The ultimate question is — did petitioner voluntarily plead guilty within the traditional legal meaning of the word “voluntary” ? Historically, this court has protected an accused from entering an unintelligent plea. For instance, in State v. Cochran, 332 Mo. 742, 60 S.W.2d 1, 2 (1933), it was held: “The guiding rules are that a plea of guilty is but a confession in open court. Like a confession out of court it should be received with caution. It should never be received unless it is freely and voluntarily made. If the defendant should be misled or be induced to plead guilty by fraud or mistake, by misapprehension, fear, persuasion, or the holding out of hopes which prove to be false or ill founded, he should be permitted to withdraw his plea.” Petitioner, here, could not have been confronted at the trial with the confession. Absent advice of counsel, elementary fairness demands we assume he was not aware of this fact. While unadvised on this point, he waived a preliminary hearing, assistance of counsel, trial by jury and entered a plea of guilty. “The purpose of the constitutional guaranty of a right to counsel is to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights, ….” Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461. It is obvious petitioner had no way of knowing, that by his statements, he had not forfeited all possible defenses.
¶8The most recent opinion of the Supreme Court of the United States on this question, McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763, handed down May 4, 1970, makes it clear that the plea does not wipe the slate clean unless entered on advice of counsel. Without copying extended quotes, the court based its application of the principle on “counselled defendant,” “advised by counsel,” “defendant and his counsel,” and “reasonably competent advice.” As to determining if the confession could have been used at trial — “a decision to plead guilty must necessarily rest upon counsel’s answers ….”
¶9The Attorney General concedes he has been unable to find a case applying the questioned principle where aid of counsel had not been given nor has this writer in hurried research. If there are such cases, they should be added to the majority opinion.
¶10It would not be inappropriate to add that it is somewhat ironic that this and other appellate courts are devoting so much time to cases concerning the failure to have effective counsel, when it is ruled that this young man needed none — effective or ineffective.