Adams v. State
| Citation | 842 S.W.2d 882 |
| Decision Date | 12 November 1992 |
| Docket Number | No. 17990,17990 |
| Parties | William Anthony ADAMS, Appellant, v. STATE of Missouri, Respondent. |
| Court | Court of Appeal of Missouri (US) |
J. Gregory Mermelstein, Columbia, for appellant.
William L. Webster, Atty. Gen., Hugh L. Marshall, Asst. Atty. Gen., Jefferson City, for respondent.
William Anthony Adams ("Movant") appeals from an order denying relief in a proceeding by him under former Rule 27.26, 1 1 wherein he attacked his conviction (by jury) of rape, sodomy and kidnapping. Sentenced as a prior offender, Movant received concurrent life terms for rape and sodomy, and fifteen years for kidnapping, consecutively to the life sentences. We affirmed the conviction on direct appeal. State v. Adams, 691 S.W.2d 432 (Mo.App.1985).
In the instant appeal, Movant presents three assignments of error. We address them in the order presented.
Movant's first point relied on avers the lawyers who represented him in the motion court 2 rendered ineffective assistance in that the first amended motion for relief (prepared by counsel) failed to plead a meritorious ground for vacating the conviction. That ground, says Movant, was:
[Movant's] trial attorneys failed to advise [him] before trial of the correct maximum punishments for the offenses for which he was convicted. Prior to trial, [Movant's] trial attorneys had told him that the charges against him were all class B felonies, with a maximum punishment of 15 years on each count, when in fact the rape and sodomy charges carried a maximum punishment of life imprisonment. [Movant] was prejudiced by his trial attorneys' failure to advise him of the correct maximum penalties since he likely would have accepted the State's pretrial plea offer of a total of 10 years imprisonment had he known that he faced possible penalties of life imprisonment on his rape and sodomy charges if he went to trial.
Movant's first point further alleges the lawyers who represented him in the motion court failed to present readily available evidence in support of the above ground. Movant asserts we should "remand this case for filing of a second amended motion including this allegation of ineffectiveness by trial counsel, and further proceedings under Rule 27.26."
A proceeding under Rule 27.26 is directed to the validity of the prisoner's conviction and cannot be used as a means of challenging the effectiveness of counsel in the 27.26 proceeding. Lingar v. State, 766 S.W.2d 640, 641 (Mo. banc 1989), cert. denied, 493 U.S. 900, 110 S.Ct. 258, 107 L.Ed.2d 207 (1989).
Movant acknowledges "Missouri courts generally do not recognize claims of ineffective assistance of postconviction counsel." However, says Movant, Missouri courts do recognize "claims of abandonment by postconviction counsel." In support of the latter proposition, Movant cites McAlester v. State, 658 S.W.2d 90 (Mo.App.1983). There, a prisoner's pro se 27.26 motion complained his trial counsel rendered ineffective assistance by failing to contact the prisoner's alibi witnesses until the trial date. The motion court appointed counsel for the prisoner, and counsel filed an amended motion on the prisoner's behalf. However, the amended motion ignored the prisoner's complaint that trial counsel failed to contact alibi witnesses. The motion court denied relief without an evidentiary hearing.
On appeal, the Western District of this Court held the prisoner's appointed counsel did not perform his obligation to amend the pro se motion with respect to the allegation of failure to call alibi witnesses, to allege facts which, if proved, would entitle the prisoner to relief. McAlester, 658 S.W.2d at 92. The order denying relief was reversed and the action was remanded to the motion court with directions to grant the prisoner leave to further amend his 27.26 motion and, if facts were then alleged warranting relief, to hold an evidentiary hearing. Id. at 92-93.
McAlester does not aid Movant. Movant's pro se motion contains no allegation that his trial lawyers failed to advise him of the maximum permissible punishments. Consequently, Movant's lawyers in the motion court, in failing to assert that complaint in the amended motion, did not leave out a ground for relief raised in Movant's pro se motion.
Movant's pro se motion, filed July 24, 1987, is a rambling collection of diffuse and conclusional allegations. The first amended motion, prepared by counsel and verified by Movant on March 29, 1989, pleads five grounds for relief, two of which are the subjects of Movant's points two and three, infra. Movant's verification reads, in pertinent part:
... I have listed every ground known to me for vacating, setting aside or correcting the conviction and sentence attacked in this motion; and that I understand that I waive any ground for relief known to me that I have not listed in this motion.
The motion court held an evidentiary hearing September 22, 1989, six months after the first amended motion was filed. Movant testified, but made no mention of the alleged failure of his trial lawyers to correctly advise him of the maximum permissible punishments. Furthermore, nothing in his testimony indicated he might have accepted the alleged ten-year offer. Indeed, his testimony included this:
Q. ... It was your decision to take this case to trial, is that correct?
A. Yes. From the beginning, yes.
Q. Is that what you told your attorney?
A. Yes.
Q. And your attorney did follow your ... wishes in taking it to trial, is that correct?
A. Eventually, yes.
The record is barren of any hint that Movant ever indicated to the lawyers representing him in the motion court that his trial lawyers failed to correctly advise him of the maximum permissible punishments or that he might have accepted a ten-year offer had they done so.
The principle that a postconviction proceeding cannot be used to challenge the effectiveness of postconviction counsel has been reaffirmed by the Supreme Court of Missouri since Rules 24.035 and 29.15 replaced Rule 27.26. 3 Pollard v. State, 807 S.W.2d 498, 502 (Mo. banc 1991), cert. denied, 502 U.S. 943, 112 S.Ct. 383, 116 L.Ed.2d 334 (1991). While narrow exceptions have been recognized in Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991), and Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991), those cases are factually unlike the instant case. In Sanders, postconviction counsel determined there was a sound basis for amending the prisoner's pro se motion, but failed to timely file an amended motion. 807 S.W.2d at 494-95. In Luleff, postconviction counsel took no action whatever on the prisoner's behalf. 807 S.W.2d at 498.
Here, Movant's postconviction counsel filed an amended motion setting forth five grounds for relief and presented testimony by Movant and another witness at the evidentiary hearing in the motion court. The following passage from Pollard is controlling here:
What [the prisoner's] new counsel on appeal really argues ... is that counsel before the motion court did not do everything which might have been done, and the brief on appeal asks a remand for the purpose of another and expanded hearing. To acquiesce in that request would go far beyond the narrow compass of Sanders and Luleff, and as stated in Sanders "would defeat the clear provision of subsection (k) [of Rule 29.15]." 4
State v. Berry, 798 S.W.2d 491 (Mo.App.1990), cited by Movant, is inapposite. There, the prisoner's postconviction counsel filed no amended motion, requested no evidentiary hearing and, as none was held, presented no evidence. Here, as we have seen, Movant's postconviction counsel filed an amended motion and presented evidence at the evidentiary hearing. Clearly, Movant was not abandoned by postconviction counsel in the motion court.
Adhering to Lingar, 766 S.W.2d at 641, and Pollard, 807 S.W.2d at 502, we hold Movant's first point is not cognizable in this appeal.
Movant's second point maintains certain of his constitutional rights were violated in that one of the jurors, Regina Gilliam, was the sister-in-law of the victim and failed to disclose such relationship during voir dire. As evidentiary support for this contention, Movant directs us to this segment of his testimony in the motion court:
Q. ... There was a juror ... named Regina Gilliam, who turned out that she was a sister-in-law of the victim ...; do you feel your attorney should of got that information during the voir dire section of the trial?
A. Yes. I don't think that he ... tried the best ... he could, because I've read the voir dire procedures and the questions they were asked were minimal.... I think that he should of went a little more in depth....
Q. Do you feel you were prejudiced by having a sister-in-law of the victim on your jury?
A. Yes, I do, yes, sir.
The motion court's findings included this: "... no evidence can be found in the record to indicate that an improper juror was seated at Movant's trial." In that regard, the trial transcript shows that during voir dire the members of the venire were asked whether they knew the alleged victim and whether they had any relatives who had been rape victims. Ms. Gilliam did not respond to either inquiry.
Movant acknowledges our review of the motion court's findings is limited to a determination of whether they are clearly erroneous. Rule 27.26(j); Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987). Movant argues the finding quoted in the preceding paragraph is clearly erroneous because his testimony was sufficient to demonstrate Ms. Gilliam was the victim's sister-in-law.
Not so. In this 27.26 proceeding, credibility of the witnesses was a matter for the motion court's determination; the motion court was not required to believe Movant's testimony. Garrett v. State, 814 S.W.2d 325, 327 (Mo.App.1991); Johnson v. State, 774 S.W.2d 862, 863 (Mo.App.1989); Thomas v....
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