Beattie v. State, WD 31030.

• Decision Date: 09 September 1980
• Docket Number: No. WD 31030.,WD 31030.
• Citation: 603 S.W.2d 42
• Parties: Wayne BEATTIE, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

603 S.W.2d 42

Wayne BEATTIE, Appellant, v. STATE of Missouri, Respondent.

No. WD 31030.

Missouri Court of Appeals, Western District.

July 8, 1980.

Motion for Rehearing and/or Transfer Denied August 4, 1980.

Application to Transfer Denied September 9, 1980.

Roger M. Prokes, Maryville, for appellant.

John Ashcroft, Atty. Gen., Steven W. Garrett, Asst. Atty. Gen., Jefferson City, for respondent.

Before CLARK, P. J., and DIXON and SOMERVILLE, JJ.

Motion for Rehearing and/or Transfer to Supreme Court Denied August 4, 1980.

CLARK, Presiding Judge.

Appellant filed a motion under Rule 27.26 to vacate a judgment of conviction and a sentence of eight years on his plea of guilty to the charge of receiving stolen property in violation of § 560.270, RSMo 1969. The trial court appointed counsel, afforded an evidentiary hearing on the motion allegations, denied relief and this appeal followed.

Three points of error are advanced, one initially briefed by appellant's attorney and two contained in a supplemental brief which was filed after appellant complained in a pro se brief that counsel on appeal had abandoned additional grounds of the original motion contrary to appellant's instructions. These additional points will be addressed as presented both in the pro se brief and in the brief by counsel.

The points relied on are: (1) that appointed trial counsel was ineffective by reason of inadequate investigation and preparation of the defense, (2) that appellant's expectation of a more lenient sentence was not fulfilled, and (3) the length of sentence imposed was influenced by improper consideration of prior criminal proceedings against appellant in Texas.

The facts which gave rise to the charge against appellant were brief and were recounted in the guilty plea hearing. A Nodaway County farmer discovered on December 23, 1977 that 53 hogs had disappeared from his farm the previous night. The hogs bore identifying sale tags in their ears. Tire tracks and yellow paint scrapings were found in the feed yard. Investigation immediately focused on appellant who was known to possess a trailer painted yellow and suitable for transporting such stock. Officers visited appellant's farm and found several of the hogs there. Remaining numbers of the missing hogs were recovered from a livestock sale barn where the auctioneer told officers appellant had left the hogs for sale. Appellant was arrested and charged December 24, 1977.

On the first point, appellant faults preparation of his defense because evidence casting doubt on identification of his trailer as the one used to transport the purloined hogs was not developed. He suggests that actual measurement showing ground clearance of his trailer and an independent chemical analysis of the paint samples would have been to his advantage and, had the evidence been available, his decision to plead guilty would have been significantly affected.

The ground clearance of the trailer entered the case when, at the preliminary hearing, evidence was offered that clearance of the chief's trailer was fourteen inches. Apparently, the state's case also included the results of a chemical comparison of paint samples from the scene of the theft with the paint on appellant's trailer. The report concluded that the paint scrapings could have come from appellant's trailer.

Competency of counsel's services is measured when challenged after a guilty plea by inquiry as to whether the alleged incompetency vitiated the requisite understanding and voluntariness of the plea. Barylski v. State, 473 S.W.2d 399 (Mo.1971); Giles v. State, 562 S.W.2d 106 (Mo.App. 1977); Haliburton v. State, 546 S.W.2d 771 (Mo.App.1977). If the claim is based on failure of counsel to develop evidence, it is necessary to show that the additional investigation and preparation would have borne fruit in beneficial evidence improving the accused's position. Curry v. State, 504 S.W.2d 97 (Mo.1974); Brewster v. State, 577 S.W.2d 911 (Mo.App.1979); Bibee v. State, 542 S.W.2d 540 (Mo.App.1976). The gist of the contention is that the guilty plea was uninformed because the defendant was denied evaluation of his case with all potentially favorable evidence in prospect.

As to the clearance height of appellant's trailer, this information was available to appellant without investigatory effort by the attorney. In fact, the discrepancy between the state's evidence as to ground clearance and appellant's measurement originated when appellant himself measured the trailer at his attorney's suggestion. The paint comparison test by the state was, at best, of little probative value because no certain opinion was expressed that the paint fragments found actually came from appellant's trailer. Despite this, the value of another chemical test is entirely conjectural because no indication is given as to what opinion would have followed.

Further, the identity of the trailer was both remote from and collateral to the offense with which appellant was charged— receiving stolen property. While he had originally been charged with stealing the hogs, the charge was amended early in the proceedings. There is no indication that amendment of the charge was in any way related to the guilty plea or that appellant was misled as to the offense in...