Adams v. State, WD

• Decision Date: 11 September 1984
• Docket Number: No. WD,WD
• Citation: 677 S.W.2d 408
• Parties: Lloyd ADAMS, Appellant, v. STATE of Missouri, Respondent. 35371.
• Court: Missouri Court of Appeals

Page 408

677 S.W.2d 408

Lloyd ADAMS, Appellant, v. STATE of Missouri, Respondent.

No. WD 35371.

Missouri Court of Appeals Western District.

Sept. 11, 1984.

Joseph H. Locascio and Mimi Droll, Sp. Public Defenders, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Carrie Francke, Asst. Atty. Gen., Jefferson City, for respondent.

Before LOWENSTEIN, P.J., and MANFORD and BERREY, JJ.

LOWENSTEIN, Judge.

The most important matter in the appeal of this Rule 27.26 case is that of jurisdiction. The unique question presented here is whether a Missouri court may entertain a 27.26 motion from a prisoner incarcerated under consecutive Missouri sentences who claims that a sentence that he is scheduled to serve but has not commenced to serve is invalid because of deprivation of rights guaranteed by the federal or state constitutions. The claim here is ineffective assistance of counsel. The problem hinges on what is meant by the following language in the first paragraph of Rule 27.26 relating to when such a suit may be brought: "a prisoner in custody under sentence ... claiming a right to be released on the ground that such sentence was imposed ...." (Emphasis added.)

The movant, Lloyd Adams was leaving a housing project in Kansas City when he was stopped in the parking lot by two officers of the project's security force. The security officers were commissioned and had the arrest powers of Kansas City officers within the project. Adams was told he was being held for the police department for questioning for a homicide. A police detective had made an oral request to the security force to pick up Adams. Adams was known to the security men, previously having been arrested by one of them for armed robbery. Adams was immediately given a pat down "protective" search in the lot and a gun was discovered stuck down in his belt having been concealed under a sweater and a jacket. The charge against him was carrying a concealed weapon, § 564.610 RSMo.1969. Adam's counsel filed a motion to suppress on the basis the gun was obtained during an invalid warrantless arrest due to lack of probable cause. The motion was denied. At trial when the weapon was introduced by the state, movant's attorney said "no objection." The two guards and the detective testified for the state. Adams presented no evidence. Adams was found guilty by the jury and sentenced to two years to be consecutive to a 15 year sentence on an unrelated robbery charge.

The direct appeal contained the singular assertion of error in overruling his motion to suppress the weapon. In State v. Adams, 552 S.W.2d 53 (Mo.App.1977), his conviction was affirmed on the basis of the rule which requires an objection at trial when evidence which was the subject of a motion to suppress is presented. The court said, "the statement of 'no objection' not only violated such rule, but constituted an express waiver of the contention made in the motion to suppress." Id. at 53.

This 27.26 action alleges ineffective assistance of counsel in failing to preserve for appeal the issue of admissibility of the weapon. The transcript of the hearing reveals that at that time, May 27, 1983, Adams was still serving the robbery sentence with an expected commutation date in February 1984. The court expressed concern as to whether the 27.26 action was premature to his actually beginning to serve the sentence sought to be vacated. The parties briefed the issue there but made no mention on appeal of this issue. Trial counsel testified at the 27.26 hearing that any reasoning he had behind not objecting at trial could be "speculative," and was possibly because of trial strategy. The court denied relief. This appeal followed.

The jurisdictional issue must now be addressed. At first blush the language in the rule requiring the prisoner to be in custody for the sentence for which he claims relief, and the cases which say the 27.26 remedy is only available to those who are serving the sentence they seek to challenge, otherwise the trial court lacks jurisdiction to entertain the motion, Johnson v. State, 614 S.W.2d 781, 783 (Mo.App.1981), would lead to a conclusion the trial court was without jurisdiction. Reaching such a conclusion would require the movant to start all over in his request for post conviction relief.

First, the problem here is different from the one presented in Johnson, supra, where the movant was attacking the judgment of a conviction that has already been served. The cases have held that Rule 27.26 is not the appropriate remedy for a sentence already served, rather one should seek a writ coram nobis. State v. Quinn, 594 S.W.2d 599, 603 (Mo. banc 1980); Noble v. State, 485 S.W.2d 33, 35 (Mo.1972); Johnson v. State, supra. Here the appeal process has run and the prospective sentence is certain.

Secondly, this problem is unlike the one presented in Lalla v. State, 463 S.W.2d 797 (Mo.1971), where the defendant was serving a sentence for a federal offense in a federal institution in Indiana, and was denied a 27.26 motion attacking the Missouri sentence which defendant had not yet begun to serve. There the court was concerned with transporting prisoners to and from distant federal penitentiaries for 27.26 hearings in Missouri.

Thirdly, Missouri courts have said that in the context of both Rule 27.26 and federal habeas corpus, "custody" is not limited to actual physical incarceration. A person on parole or probation is deemed to be in custody for purposes of attacking the sentence. Nicholson v. State, 524 S.W.2d 106 (Mo. banc 1975); State v. Gray, 406 S.W.2d 580 (Mo.1966).

Rule 27.26(a) makes it clear that the rights available by habeas corpus are not suspended; the rule merely "prescribes the procedures to be followed." Wiglesworth v. Wyrick, 531 S.W.2d 713, 715 (Mo. banc 1976). Any relief available under federal habeas corpus should be available to a Missouri defendant under Rule 27.26 authority. The United States Supreme Court granted federal habeas corpus to a prisoner serving consecutive terms in Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968). There the defendant was sentenced to 30 years on one charge and 20 years on a second charge, to be served consecutively. The defendant sought to attack the second conviction and the federal district court concluded it could not entertain that challenge until the defendant was actually confined for that particular charge.

The Peyton court overturned old case law in McNally v. Hill, 293 U.S. 131, 55 S.Ct. 24, 79 L.Ed. 238 (1934), saying it was an "indefensible barrier to prompt adjudication of constitutional claims in federal courts." The defendant was deemed "in custody" for purposes of testing either sentence by federal habeas corpus under 28 U.S.C. § 2241.

Peyton was followed in Todd v. Wilson, 310 F.Supp. 1025 (W.D.Mo.1970), where the petitioner was deemed to have standing to challenge a federal sentence which was to be served consecutively with a 15 year Missouri sentence. Peyton was distinguished from the facts in Lalla, supra, by saying the defendant in Peyton was actually in custody of the state in question for the period of both sentences.

The present facts are similar to Peyton. Here the defendant was in prison for a 15 year sentence and sought to attack a two year consecutive sentence. The serving of the second sentence was inevitable. The defendant had exhausted all other post-trial motions and appeals. It makes no sense to make him wait to challenge the second sentence. In fact in the interest of expediting justice, it makes more sense to raise the issue of ineffective assistance of counsel now while the other parties are still available and the facts are still fresh in mind. If the defendant's first sentence had been for 50 instead of 15 years, the delay would be even more egregious. By the same token, whereas here the consecutive sentence is relatively short it is unfair to make the filing of the petition in 27.26 come only after the sentence starts and the relief, if deserved, come when the sentence is close to having been served.

Another reason for letting this type of action proceed is the possible impingement upon the release date of the prisoner on the first charge by the finality of having a determination on the second conviction both by direct appeal and a 27.26 adjudication. This works both ways--a prisoner may get a determination on the consecutive sentence before it starts, but in so doing strict attention should be paid to portions (c) and (d) of Rule 27.26 which mandate the sentencing court shall not have to entertain second or successive applications where a new ground for relief could have been raised on the prior motion. In other words, the prisoner should not by later motion be allowed to raise a new point for the reason that he rushed to present and get final court action on the earlier motion. There should be no relaxation of the letter or the intent of the rule which is to absolutely discourage second or successive motions for post-conviction relief.

It is therefore held that since Rule 27.26 specifically does not limit habeas relief, and since habeas would allow the prompt relief sought here, this motion following direct appeal, though admittedly filed, heard and decided before the consecutive sentence ever started, was not jurisdictionally unfair as premature. In the interest of avoiding delay occasioned by the dismissal of this appeal and processing a new motion or application, this matter will be considered on the merits. Jones v. State, 471 S.W.2d 166, 169 (Mo. banc 1971).

Attention is now upon the merits of Adams' petition; Adams here argues the judgment of the...