Scruggs v. State, 61364
| Citation | 839 S.W.2d 51 |
| Decision Date | 20 October 1992 |
| Docket Number | No. 61364,61364 |
| Parties | Sylvester SCRUGGS, Movant, v. STATE of Missouri, Respondent. |
| Court | Court of Appeal of Missouri (US) |
Curtis Cox, St. Louis, movant.
William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.
Defendant-movant appeals denial of a Motion to Vacate Judgment and Sentence without an evidentiary hearing under Rule 24.035 after pleading guilty to burglary second degree. Section 569.170 RSMo 1986. We affirm.
On May 20, 1991, the trial court found defendant was a Class X offender, accepted defendant's guilty plea and ordered a pre-sentence investigation. On June 20, 1991, defendant appeared for sentencing. At that time, defendant attempted to withdraw his guilty plea, claiming he had been mislead by his attorney regarding his eligibility for probation. Recalling defendant's testimony at the guilty plea hearing, the court found this assertion lacked credibility and then imposed a sentence of seven years.
On appeal, defendant raises three points. First, defendant alleges error in that the trial judge refused to recuse himself. Second, he claims the plea was involuntary in that counsel failed to take adequate measures to secure his alibi witnesses. Finally, defendant contends the plea was involuntary because his attorney misled him regarding the possibility of probation. These points are without merit.
Defendant contends the motion court judge erred in refusing to recuse himself from the post-conviction relief motion. The basis for this claim is a comment made by the judge during the sentencing hearing. In that proceeding, the judge called defendant a liar. Additionally, the court allowed defense counsel to testify in his own behalf which defendant claims should not be allowed because the testimony divulged privileged information.
In deciding the merits of defendant's motion to withdraw a guilty plea, it was a duty of the trial court to rule on defendant's credibility. State v. Garner, 799 S.W.2d 950, 954 (Mo.App.1990). The court was required to determine the factual support, if any, for the motion. The court found defendant's factual claims were not supported by his testimony. Thus, performing this function, the court did nothing which required disqualification on the 24.035 motion, particularly where the issues raised in that motion did not involve fact disputes.
Defendant claims ineffective assistance of counsel in that the plea court allowed defense counsel to violate the attorney-client privilege when he testified before the sentencing court. However, a claim of ineffective assistance of counsel waives all privilege. Stuckey v. State, 756 S.W.2d 587, 593 (Mo.App.1988). This point is denied.
The second point also concerns ineffective assistance of counsel. Defendant complains defense counsel did not adequately investigate alibi witnesses. Defense counsel, however, testified about such efforts. He sent an investigator to find the only witness with a known address. The individual living at the residence said the witness did not reside there and the witness never returned phone calls. A second witness was also not located. Defendant only gave his attorney a...
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Neal v. State
...of an actual conflict of interest should trial counsel defend the claim while still representing the defendant. In Scruggs v. State, 839 S.W.2d 51 (Mo.App. E.D.1992), a defendant in a Rule 24.035 motion alleged, among other things, that his trial counsel was ineffective because the “plea co......
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Dean v. State, WD
...subjective. Just as a belief in connection with sentencing must be supported by a reasonable basis in the record, Scruggs v. State, 839 S.W.2d 51, 52-53 (Mo.App.1992), there must be some reasonable basis for Dean's belief that counsel was unprepared. The record does not reveal such a reason......
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Neal v. State
...of an actual conflict of interest should trial counsel defend the claim while still representing the defendant. In Scruggs v. State, 839 S.W.2d 51 (Mo. App. E.D. 1992), a defendant in a Rule 24.035 motion alleged, among other things, that his trial counsel was ineffective becausethe "plea c......
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Miller v. State, 63755
...on a mistaken belief about his sentence, the test is whether a reasonable basis exists in the record for such belief. Scruggs v. State, 839 S.W.2d 51, 52-53 (Mo.App.1992). "Only when it appears that a [defendant's] belief is based on positive representations upon which a movant is entitled ......