Azbell v. State

• Decision Date: 24 September 2004
• Docket Number: No. 26024.,26024.
• Citation: 144 S.W.3d 863
• Parties: Lawrence AZBELL, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

144 S.W.3d 863

Lawrence AZBELL, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.

No. 26024.

Missouri Court of Appeals, Southern District, Division One.

September 24, 2004.

Appeal from the Circuit Court, Greene County, Don E. Burrell, J Craig A. Johnston, Columbia, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Assistant Attorney General, Jefferson City, MO, for respondent.

JAMES K. PREWITT, Judge.

In July 2002, Lawrence Azbell ("Movant") was charged by information with forcible rape, in violation of § 566.030, RSMo 2000, and forcible sodomy, in violation of § 566.060, stemming from an incident in which he entered T.A.'s apartment, first threatening harm to her boyfriend and one-month-old baby if she did not perform oral sex on him, and then having sexual intercourse with T.A. without her consent. On August 26, 2002, Movant entered a guilty plea on reduced charges, both class C felonies, of sexual assault, in violation of § 566.040, RSMo 2000, and deviate sexual assault, in violation of § 566.070, RSMo 2000. On October 25, 2002, he was sentenced to concurrent sentences of seven years' imprisonment on the two counts. This appeal follows the denial of Movant's Rule 24.035 motion for post-conviction relief without an evidentiary hearing.

Background

Prior to the sentencing date, the court received two handwritten letters from Movant. The first was filed on September 30, 2002, and reads as follows. Please note that the letter appears as it was written, without correction or indication of spelling errors, or insertion of missing punctuation.

I am been thretend by inmates and I have sent my attorney Kenton Hall sined wittness statements staten this is in fact happen I was told by jail Capton Glin that Mr. Glin did not want me in his jail and Mr. Glin was calling the U.S. Marshils to take me back to Terra Haute IN. I am on a 180 day write on case # 302cf1659 if returned the state would lose the right to get me back. I am been denied food by jail emploies I do want to eat All this is over a hit on my life by prison gang members and the hit has went out to all gang members in the US. I started been thretend last mounth and told gards and my attorney Kenton Hall. No action has been taken and the threts grow daily I ask to be wrecked seprit from two inmates that are in p.c. and was thretend to be sent back to prison. I am allso been denied two meds for mental illness and need to be hospitalised because I am seen spirits and Mr. Hall and Kathleen Faddis is awair sence last week this Faddis wants to know why a phyc evaluation has not been done I can't say. I know Judge Lubke in Appleton WI said Im not compitant to stand trial with out been on my meds well I have not been on my meds for a long time

I was last regulated at Winibego County Mental Helth in WI. I am seen the spirits of my first wife and my dad and mom can someone help me I can't talk to no one over here I don't trust them I don't know the date day or why I'm here or how

The second letter was filed on October 2, 2002, and is set out below. As with the previous letter, we present it here as it was written.

I want to change my plea to not gitty by reason of mental illness a court of the law has ordered with a mentle hospital I am not compitant to stand trial with out been on my meds. I have not been on my meds and am been refused my meds and mental health treatment by Greene Co. jail a full evaluation was done by Winabego Co. Mental Helth for Alagamie Co. Westconson. I am been misstreated at the county jail by gards becaus my illness Mr. Kenton Hall has sined statement by other inmates as to me been threten can I be housed at a non predjust jail I was left passed out on 9-27 for sevrial hours my cellie tryed to get me medical attincon not one gard or med teck ever came to see me I have yet not been seen by medical and I am been refused to see a capton I have allso been taken out of protetive cousidy and put in genrial pop. seg. Even that I have not broke no rules I do hope you all can help me Im very sick and don't feel good at all I am hopen you can get the Judge to order me to a hospital for some help. I am seen spirits haven real bad headakes and passen out and I can't even get a asprin let a lone real medical help

Thank you

At the sentencing hearing, the judge referenced that "we had a negotiated plea agreement that I deferred ruling on until I had a chance to review the PSI [pre-sentence investigation]." The court further noted that, based on the pre-sentence investigation, it was "willing to accept and be bound by that written plea agreement." That plea agreement called for two concurrent seven-year sentences.

The court then asked to hear from the State and Mr. Hall, Movant's plea counsel, on the issue. Counsel commented as follows:

Your Honor. I'd like to address some references in the PSI. The PSI writer indicates that [Movant] was not honest with her or candid about his past drug use, his involvement in the present offense, and in several other areas.

Your Honor, [Movant] wants me to point out to the Court, and I have verified through my own investigation, that he has been evaluated for mental competency in the past in relation to Federal and State charges, the state being Wisconsin. And as a result of those interactions with the psychiatrist and psychologist, he was prescribed lithium and Zoloft and I believe Prevacid for depression, anxiety-related issues. While he's been in the Greene County Jail he has not been able to take that medication. He's been off that medication, and he explains to me that that accounts for why he gave false information to the PSI writer. When he was not on his meds, he doesn't think clearly, and his mind doesn't operate in a rational way as it does when he is on his medication.

Now, I understand since we provided — I provided the records that I was able to gather to him in the jail he has presented those to the jail personnel, medical personnel, and he has now been prescribed the medications and today he feels much more comfortable. He had indicated a desire to perhaps withdraw his plea and that again, Judge, was stated when he was not on his medications. He indicates to me today he does not desire to withdraw his plea of guilty.

Following further commentary from Counsel regarding the length of sentence, the judge noted, "I'm glad you brought up the issues about the medications because, [Movant], I did get your correspondence each day about the Zoloft and the things that you weren't on. How long has it been since those have been represcribed for you?" Movant indicated that he had been back on the medications about four days. In response to the court's question as to how he was feeling and functioning on that day, Movant stated, "Oh, much better, Your Honor."

The exchange continued.

[Court]: Okay. Because that does give me some perspective on your — what you might have said to the PSI writer and I did want to make sure your plea was voluntary. I know you told me it was at the time.

[Movant]: At that time, Your Honor, I didn't really realize what was even going on. I was just really out of it without those medicines.

[Court]: Okay. Well, let me address — first of all, anything else you want to say that [Counsel] hasn't covered on your behalf before I give you some of my thoughts and make a decision on this?

[Movant]: Well, Your Honor, I've been incarcerated already for 16 months, and I've lost a great deal while I was incarcerated. And I've really took a look at my life, and I want to change my life for the better, Your Honor. And I'm willing to comply with anything that the Court would see fit to improve my life. I don't feel that prison would be an improvement to anyone's life because the people that's — that you associate with in there. I feel I need some serious counseling and maybe some drug and alcohol help. That's about all I've got to say, Your Honor.

The court made some additional comments and then asked if either the State or Counsel had anything else to say on the matter, and then if Counsel was aware of "any legal reason... why the Court should not pronounce sentence at this time." Counsel replied that he was not, and the court stated that the sentence would be as indicated in the written negotiated plea agreement, which was two concurrent seven-year prison terms.

The court informed Movant of his rights under Rule 24.035, after which the judge asked about Counsel's representation of Movant.

[Court]: Okay. The other thing we need to talk about is [Counsel's] services. I know in some of your letters you were disappointed with him, didn't think he met with you enough, and now's the time that you need to talk to me about any of those concerns that you have about [Counsel's] performance.

[Movant]: Right now I'm just — I just don't know what to say, Your Honor. I was under the impression when I signed the plea agreement I was getting probation.

[Court]: Okay.

[Movant]: That's what I was under the assumption. I wasn't on my medication.

[Court]: Okay.

[Movant]: I probably wouldn't have signed the plea agreement.

[Court]: Okay. Now that's the sort of thing that you said in your PSI that I'm starting to question you about, because are you telling me today that [Counsel] told you you'd get probation if you pled guilty?

[Movant]: At that time I wasn't on my medicine. I don't know what they were saying, Your Honor.

[Court]: Okay. Well, I remember our conversation, and I can tell you that I'm always very careful not to let anybody plead guilty that doesn't — that I don't think they know what they're doing, and anybody's promised them something different, because I asked you, you know, has anybody told you I'd put you on probation, given you that impression. What you told me at that time was no and now you're telling me that somebody did tell you that. Is that what you're saying?

[Movant]: No. I'm saying I'm not sure what they were saying.

[Court]:...