Bailey v. State, 52774

• Decision Date: 01 September 1987
• Docket Number: No. 52774,52774
• Citation: 738 S.W.2d 577
• Parties: Donald BAILEY, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 577

738 S.W.2d 577

Donald BAILEY, Appellant, v. STATE of Missouri, Respondent.

No. 52774.

Missouri Court of Appeals,

Eastern District,

Division Three.

Sept. 1, 1987.

Motion for Rehearing and/or Transfer Denied Sept. 30, 1987.

Application to Transfer Denied Nov. 17, 1987.

Michael David Burton, Asst. Public Defender, St. Louis, for appellant.

William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

KAROHL, Judge.

Movant Donald Bailey appeals denial of Rule 27.26 post-conviction relief without an evidentiary hearing. Movant sought relief from sentences after pleas of guilty to charges of burglary first degree, a Class "B" felony, burglary second degree, a Class "C" felony, and stealing over $150, a Class "C" felony. The only claim of error is that movant's guilty pleas were involuntary and coerced due to his trial attorney's failure to investigate the case and contact alibi witnesses. We affirm.

Pursuant to a plea bargain arrangement movant offered his pleas of guilty and the state recommended a total prison term of nine years. The court accepted the pleas after lengthy interrogation and subject to a pre-sentence investigation. The court advised movant that if he failed to return for sentencing he could be sentenced to a maximum prison term allowed by law. Movant failed to appear for sentencing and a capias was issued for his arrest. When apprehended, he was sentenced to serve a term of fifteen years imprisonment for the first degree burglary charge and five year terms on the burglary second and stealing charges, which were made concurrent to each other, but consecutive to the first degree burglary sentence.

Our review is "limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous." Rule 27.26(j); Richardson v. State, 719 S.W.2d 912, 915 (Mo.App.1986). Movant bears the burden of showing that denial of his 27.26 motion was clearly erroneous. See, Caldwell v. State, 682 S.W.2d 52, 53 (Mo.App.1984). In those cases in which an accused pleads guilty to an offense, effectiveness of counsel is material only to the extent of determining whether the ineffectiveness affected the voluntariness of the plea. Sanders v. State, 716 S.W.2d 844, 845 (Mo.App.1986). The question presented is whether movant's trial counsel was ineffective for failure to render services that conform with the degree of skill and competence required of a reasonably competent attorney; that movant was prejudiced, Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 369-70, 88 L.Ed.2d 203 (1985); and, as a result, movant's pleas of guilty were involuntary. We find the decision of the trial court denying relief supported by the record. It follows that the decision was not clearly erroneous. We affirm.

We first observe that no evidentiary hearing was required. The record at the time of the plea of guilty indicates that it was knowing and voluntary. See, Williams v. State, 718 S.W.2d 542, 544 (Mo.App.1986). Movant's argument for the necessity of an evidentiary hearing on this factual matter is without merit. An evidentiary hearing may be denied if the motion court can determine from the files,...