concurring in result.
I concur in the majority opinion’s analysis and result on the issues of' the claimed involuntary nature of the guilty plea and the denial of the evidentiary hearing reviewed under Rule 27.26.
Because I do not believe that we can review the action of the trial court in ruling upon a motion to withdraw the guilty plea made prior to sentencing under the procedural device of Rule 27.26,1 concur only in the result of the majority opinion, as to the affirmance of the trial court’s action with respect to the motion to withdraw the plea.
The majority opinion properly states that the question of the propriety of considering the withdrawal of a plea of guilty before sentence in a proceeding on a Rule 27.26 motion is not without doubt. Cases decided prior to the adoption of Rule 27.26, without discussion or question, reviewed a denial of a motion to withdraw a plea of guilty, before sentence, on direct appeal.1 Typical of these cases are State v. Hovis, 353 Mo. 602, 183 S.W.2d 147 (1944) and State v. Reynolds, 355 Mo. 1013, 199 S.W.2d 399 (1947). It was clear under those cases, decided on direct appeals from the conviction had on a guilty plea, that the court was reviewing the denial of such a motion to withdraw the plea as a review of a discretionary act by the trial judge. State v. Hovis, supra, and State v. Reynolds, supra. Nor was the right to direct appeal from the denial of a motion to withdraw a guilty plea changed by the adoption of Rule 25.04, Rule 27.25, and Rule 27.26. In State v. Harris, 420 S.W.2d 325 (Mo.1967), the Supreme Cotirt reviewed a denial of such a motion on direct appeal and applied the principle of State v. Hovis and other like cases in finding that the trial court had not “abused” its discretion in denying the motion. The notion that the denial of the motion is within the scope of direct review has persisted into the recent cases. It was so stated in State v. Skaggs, 248 S.W.2d 635 (Mo.1952); State v. Begley, 534 S.W.2d 632 (Mo.App.1976); and State v. Nielsen, 547 S.W.2d 153 (Mo.App.1977).
Based on this authority, it would seem that the issue of the propriety of the sentencing trial judge’s denial of the presen-tence motion to withdraw the appeal is not reviewable in this Rule 27.26 motion. There are cases which seem to have reviewed the denial of a pre-sentence motion to withdraw the plea under a Rule 27.26 proceeding. State v. Arnold, 419 S.W.2d 59 (Mo.1967); Williams v. State, 437 S.W.2d 82 (Mo.1969).
Upon careful reading, they do not stand for that proposition. Arnold, supra at 60, expressly states that it is a direct appeal “considered as a proceeding to vacate sentence under Criminal Rule 27.26.” Cited in support is State v. Harris, 382 S.W.2d 642 (Mo.1967), which was a direct appeal case and which nowhere mentions Rule 27.26. Williams was a 27.26 proceeding, but the court did not review the trial court’s action on the motion to withdraw the plea. The only claim was that the trial court had not acted upon the motion which the reviewing court found was not factually supported. The court did not review the action of the trial court in overruling only the factual issue of a ruling having been made.
State v. Nielsen, supra at 158-59, analyzes the direct appeal question and points out that the standard for review of a motion to vacate after sentence is a finding of manifest injustice whereas the standard of review for a motion prior to sentence has not been articulated. The Nielsen case, in footnote 10, cites federal cases supporting a standard of “fair and just.” Nielsen, on the facts there presented, finds the denial of *74the motion proper, but does not apply the manifest injustice standard of former Rule 27.25, now Rule 29.07(d), applicable to post-sentence motions.
Thus, as I view these authorities, the denial of the motion to withdraw is reviewable only on direct appeal and not by a proceeding under Rule 27.26. This is but an application of the rule that trial error is not reviewable by means of a Rule 27.26 motion.
This presents the “catch-22” of the unusual facts of this case. The Rule 27.26 findings and conclusions in the instant case are undoubtedly proper under the precept that no hearing is required when the record conclusively refutes the claims made. The record made before Judge Riederer and Judge Marsh conclusively refutes the defendant’s claim that his plea was involuntary. At the same time, we may not review the action of Marsh in denying the motion to withdraw the plea, nor can that action be bootstrapped into the involuntary plea situation since that is concluded by the Rule 27.26 allegations and findings and conclusions on that motion.
Were the issue of the denial of the pre-sentence motion properly before us, I would reverse for a new hearing on that motion. I come to that conclusion from a review of transcripts before Judge Riederer and Judge Marsh. Because I believe we cannot review the motion to withdraw the plea, I cannot concur in the result of Judge Kennedy’s dissent. I agree with and support the dissent’s rationale for the treatment of a motion to withdraw after an involuntary change of judge. The concept is completely consistent with the case law requiring the exercise of judicial discretion in ruling such a motion. As I have stated, I agree that there is not sufficient evidence to refute the voluntary nature of the plea. I believe, however, that in considering the evidence as a whole the trial court should have permitted the withdrawal of the plea. In addition to the fact that the charge had been reduced, other subtle hints in the proceeding before Judge Riederer indicate enough doubt concerning the possibility that an arrangement had been reached with respect to the disposition of this case to influence the trial court in exercising his discretion to permit withdrawal of the plea.
First of all, the proceedings began with the astonishing recital by Judge Riederer that he had talked with the physicians who had examined the defendant pursuant to his proferred defense of not guilty by reason of mental defect. It is difficult to believe that Judge Riederer would have compromised his situation as a trial judge by such conversation if he did not have some foreknowledge that a plea was being entered. This is further buttressed by the fact that Judge Riederer peremptorily and without hearing any evidence overruled the defense of mental disease or defect. It is impossible to tell from the record presented to us whether that defense was filed within the ten days after arraignment provided in § 552.030 RSMo 1969. The respondent’s brief informs us that the indictment was filed on the 3rd of December, 1971, and the defense of mental incapacity was filed on December 16. There is no indication of when the defendant was arraigned. Defense counsel further advised Judge Riederer that he had advised the defendant and his mother “that the court has indicated” that it would receive favorably any motion made orally or in writing for an additional examination. It certainly implies some discussion between counsel and court with respect to the disposition of the case.
Additionally, when the defendant was asked of his understanding of the sentence possible under first degree murder and second degree murder, he misstated the punishment of second degree omitting from that punishment the possibility of a life sentence which the court accepted as a “good description” of the sentence possible, which certainly infers that a terms of years had been discussed. When the court inquired of defense counsel concerning whether he had advised the defendant to enter a plea of guilty to second degree, the following significant statement occurred from defense counsel:
*75“I have come to the conclusion that it is to the best interest of the defendant to enter a plea of guilty to the charge of Murder, in the Second Degree, based on all that we have before the Court, with the mental situation and, of course, a presentence investigation from the psychological standpoint and family standpoint, yes, sir.”
which likewise indicates some prior discussion of the procedure to be followed at the plea hearing for the statement presupposes the granting of a presentence investigation.
Subsequent to all this preliminary discussion, the questions were asked concerning defendant’s understanding of his rights and willingness to voluntarily plead, which counsel has accurately described as ritualistic. Later in the proceedings, at a point when the prosecutor was examining the defendant with respect to his knowledge that despite the fact that the deceased was not killed by the shotgun fired by the defendant that he could be guilty of second degree murder, the court interjected the following comment:
“THE COURT: Well, the State-you knew that the State was going to reduce this to Second Degree Murder before you agreed to plead guilty, didn’t you?”
The whole tenor of that examination convinces me that there was some understanding or arrangement with respect to the entry of this plea.
I further believe that the proceedings taken subsequent to the death of Judge Riederer in the underlying plea hearing are significant. Judge Marsh, who heard the proceedings subsequent to the death of Judge Riederer, came upon the bench with knowledge that this defendant wished to withdraw his plea. Judge Marsh indicated that he understood there was to be a motion to withdraw the plea. Counsel for the defendant did not then undertake to shoulder the burden of supporting the motion. It placed the trial judge in a completely adversary position with respect to the defendant’s claim. The entire record consists of a cross examination by the judge of the defendant and his mother. The exercise of discretion by a trial judge is inconsistent with that procedure, albeit a procedure dictated by the failure of defense counsel to proceed in an orderly fashion.
All of the foregoing convinces me that the trial court should have permitted the defendant to withdraw his plea. As Judge Simeone notes in Nielsen, supra, the standard of review is that there must be “manifest injustice” before a post-sentencing motion to withdraw a plea can be sustained. A review of denial of a motion to withdraw prior to sentencing is a review of the trial court’s discretion and should be on the basis of a “fair and just” result. Nielsen, supra at footnote 10. A judicial ruling based on the exercise of judicial discretion must on the whole record yield a fair and just result.
. There are at least two cases which state that, on direct appeal from a guilty plea, the scope of review is limited to a determination of whether the court accepting the plea had jurisdiction of the subject matter and whether the change is sufficient. State v. LePage, 536 S.W.2d 834 (Mo.App.1976); Riley v. State, 588 S.W.2d 738 (Mo.App.1979). Both cases are distinguishable from the instant case since neither involved the review of “trial proceedings” or “hearings.”