dissenting.
I dissent. I would reverse and remand with directions to set aside the conviction and sentence and to allow the withdrawal of defendant’s plea of guilty, unless the state upon an evidentiary hearing could show an unreasonable delay by defendant in filing his 27.26 motion, resulting in unreasonable prejudice to the state, Chrisco v. State, 586 S.W.2d 407, 410 (Mo.App.1979); United States v. Barker, 514 F.2d 208, 222 (D.C.Cir.1975), or could show a waiver or consent by the defendant to be sentenced by Judge Marsh. See People v. McKinley, 5 Mich.App. 230, 146 N.W.2d 142 (1966).
My view is that the defendant should have been allowed to withdraw his plea of guilty when he came before Judge Marsh for sentencing and requested permission to withdraw the plea. As the majority opinion points out, Judge Riederer, before whom the defendant had entered his guilty plea on April 26,1972, had died. Sentencing had been deferred pending a pre-sentence investigation. Now on February 26, 1973, defendant came before Judge Marsh for sentencing. At that time King sought to withdraw his plea of guilty. Asked why, he replied: “At the time the court promised no more than 30 years, at the most; but since-well, Judge Riederer died, I’d just like to change my plea.” Later in the proceeding, the following exchange took place:
*76THE COURT: ... Is it your wish, today, to withdraw your plea of guilty because you are concerned, dissatisfied or afraid of the judgment and sentence that I might, today, impose upon you?
THE DEFENDANT: I am making my decision because I am dissatisfied.
THE COURT: You are making your decision because you are dissatisfied with the possibility that I might impose judgment and sentence upon you different from what you may have believed, or been perhaps led to believe might be imposed; is that what you are saying?
THE DEFENDANT: Yes, sir.
When a defendant enters a voluntary plea of guilty, he waives the whole panoply of constitutional rights, and waives any defense he may have.1 His doing so is in nearly every case upon certain terms and conditions with respect to sentencing. For this reason, there is a tendency in modern cases toward liberality in allowing a defendant to withdraw a guilty plea when his reasonable expectations are disappointed, and substantial fairness requires it. Nagelberg v. United States, 377 U.S. 266, 84 S.Ct. 1252, 12 L.Ed.2d 290 (1964); United States v. Barber, 514 F.2d 208 (D.C.Cir.1964); McMahon v. State, 569 S.W.2d 753 (Mo. banc 1978); Schellert v. State, 569 S.W.2d 735 (Mo. banc 1978); State ex rel. Reece v. Campbell, 551 S.W.2d 292, 299, et seq. (Mo.App.1977).2 The defendant will have been fairly dealt with, a salutary objective. Schellert v. State, supra, at 739[3]; State v. Cochran, 60 S.W.2d 1, 2 (Mo.1933). The state, on the other hand, will usually have lost nothing to which it was entitled. See United States v. Barber, supra at 222; Skaggs v. State, 476 S.W.2d 524, 528 (Mo.1972). It may still place the defendant upon trial.
In the case before us, the only express term shown by the record was the reduction of the charge from first-degree murder to second-degree murder. This reduced the maximum punishment from death to life imprisonment, and the minimum punishment from life imprisonment to ten years’ imprisonment. The permissible punishment range was ten years’ to life imprisonment. § 559.030, RSMo 1969.
We have found only two cases on the question, both of them from California. They hold that a defendant is entitled to be sentenced by the same judge before whom he enters his guilty plea. In People v. Arbuckle, 1978, 22 Cal.3d 749, 159 Cal.Rptr. 778, 587 P.2d 220, the court said, 587 P.2d at 224-225:
As a general principle, moreover, whenever a judge accepts a plea bargain and retains sentencing discretion under the agreement, an implied term of the bargain is that sentence will be imposed by that judge. Because of the range of dispositions available to a sentencing judge the propensity in sentencing demonstrated by a particular judge is an inherently significant factor in the defendant’s decision to enter a guilty plea.
In People v. Ray O., 158 Cal.Rptr. 550, 551 (Cal.App.1979), the court said:
We see no reason for differentiating between adults and juveniles in these circumstances. We hold that the Arbuckle rationale applies to juveniles. In the absence of clear waiver, whenever a juvenile enters a plea bargain before a judge he has the right to be sentenced by that same judge. Ray 0. is entitled to be sentenced by the same judge before *77whom he entered his plea or (in accordance with the procedure set forth in Ar-buckle (citations omitted)) if internal court administrative procedures render that impossible, then in the alternative Ray 0. should be permitted to withdraw his admission of burglary.
It is perhaps not too much to say, as the court said in Arbuekle, that sentencing by the judge before whom the guilty plea is entered is an implied term3 of every plea bargain, unless the contrary can be shown. Where a defendant enters a plea of guilty before one judge, and another is substituted for sentencing without his consent, the defendant should be permitted upon his request to withdraw his plea of guilty.
In the decision to enter a plea of guilty to a criminal charge where no definite sentence is agreed upon, every lawyer knows that the disposition of the sentencing judge is a subject of consideration. The likelihood of a harsh or lenient sentence is assessed. The personal philosophy of the judge, as evidenced by punishments meted out in other similar cases, or as gathered from his casual remarks and other sources is assayed. Is he (in the case of a youthful offender) sympathetic toward youth? Does he invite the recommendation of the prosecuting attorney with respect to punishment? If so, does he routinely follow the prosecutor’s recommendation? Is the offense of a type of which he takes a serious view, or is it of a kind which he treats with less gravity? To what aggravating and mitigating factors does he accord large importance or small? These are questions which any defendant, and any attorney representing a defendant, will closely weigh before he enters, or advises a guilty plea.
Like any term or condition, the privilege of being sentenced by the judge before whom the guilty plea was entered is one which can be waived by the defendant. See People v. McKinley, 146 N.W.2d 142 (Mich.App.1966). In this connection, the trial judge found upon the 27.26 motion that the movant “probably” had not voluntarily consented to the substitution of Judge Marsh, but under his view of the case it made no difference. The record before us contains no indication of any consent to the substitution or of any waiver by defendant. Upon remand of the case, should the state assert that it can affirmatively show that the defendant had consented to Judge Marsh’s substitution as sentencing judge or should it assert that defendant had waived that right, then those issues would require an evidentiary hearing after the appointment of an attorney to represent the movant.
State v. Davis, 564 S.W.2d 876, and State v. Tettamble, 450 S.W.2d 191, are not in point for they do not deal with guilty pleas. They deal with the substitution of judges during the course of criminal proceedings upon not-guilty pleas and jury-tried cases. In Davis, the substitution took place during the course of the trial, and the substitution was held to be reversible error. In Tettam-ble, the trial was completed and it was held permissible for a substituted judge to impose sentence where he had the trial transcript before him and was familiar with it.
The majority opinion has not dealt with the issue upon which I would base the decision to reverse and remand. The petitioner’s brief in this court, though complaining of the sentencing court’s refusal to allow the withdrawal of the guilty plea, does not precisely give as a reason that the sentence was being assessed by a different judge than the one who had received the plea. His brief argues that he should have been given an evidentiary hearing to prove, if he could, that there had been an agreement for a maximum sentence of 30 years before the guilty plea was entered. I do not think we are confined to the simple task of accepting or rejecting the reasoning advanced by the *78appellant. Where the death of the first judge and the substitution of the second is so conspicuous a point, and so bound up with the whole question whether the guilty plea should be allowed to be withdrawn, I think we should consider the obvious issue. In ignoring it we take too narrow a view of our appellate function. Bright v. Sawyer, 229 Ala. 657, 159 So. 211 (1935); Hafer v. Schauer, 429 Pa. 289, 239 A.2d 785 (1968);4 Van Leeuwen v. Huffaher, 5 P.2d 714, 722 (Utah, 1931); 5 C.J.S. Appeal & Error § 1324(1) (1958).
. In the present case, movant in his 27.26 motion complained of violations of his constitutional rights in the juvenile court § 211.070 hearing which resulted in the dismissal of the juvenile court petition to allow his prosecution under general law, and violation of his constitutional right in the securing of an involuntary confession from him. These matters were found by the trial judge to have been waived by the entry of the guilty plea. Kunkel v. State, 501 S.W.2d 52, 54 (Mo.1973).
. In Georgia, defendants are given by statute the absolute right to withdraw their guilty pleas up to time of sentencing. Ga.Crim.P. Law, § 27-1404. Some judges today follow the enlightened practice of offering the defendant the opportunity to withdraw his guilty plea after he has advised him what sentence will be imposed.
. In the present case, it may be argued that Judge Riederer’s assessing the sentence was an express term of the plea bargain. In the guilty plea hearing, defendant’s attorney put this question to him: “Q. Do you understand that when you do enter your plea of guilty, which you have entered, and when it is accepted by the Court, that it is entirely up to this judge, Judge Riederer, as to what sentence you will receive based on what the law tells him he can sentence you to?” “A. Yes.”
. The Hafer court says: “At reargument on this appeal, appellee strenuously urged that the distinction between verdict and judgment, adopted by our Court in its initial opinion, was never raised by Erie at any time during the course of this litigation and hence the issue was not properly before us. In answering appellee’s contention that we are indulging in a form of super-advocacy, it is only necessary to note that we are charged here with the responsibility of interpreting a written contract. The mere fact that the interpretation which we deem proper and just had never been raised before should not and does not preclude our Court from arriving at a result consonant with recognized principles of law. We have held on many occasions that litigants may not confer subject matter jurisdiction on a court by consent or failure to object. By the same token litigants may not prevent a court from applying relevant principles of law when such principles are germane to a proper resolution of the case at hand. Our conclusion that judgment and verdict have distinctly different meanings is indicative of the fact that the majority of this Court will not blind itself to what a proper application of the law demands.” 239 A.2d at 788.