Brown v. State, No. 35119

CourtMissouri Court of Appeals
Writing for the CourtJohn C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City; SIMEONE; SMITH, P.J., and KELLY
Citation495 S.W.2d 690
Docket NumberNo. 35119
Decision Date15 May 1973
PartiesRonald BROWN, Movant-Appellant, v. STATE of Missouri, Respondent. . Louis District, Division Two

Page 690

495 S.W.2d 690
Ronald BROWN, Movant-Appellant,
v.
STATE of Missouri, Respondent.
No. 35119.
Missouri Court of Appeals, St. Louis District, Division Two.
May 15, 1973.

Page 691

Lewis, Rice, Tucker, Allen & Chubb, John T. Berger, Jr., Michael J. Tannler and Michael D. Mulligan, St. Louis, for movant-appellant.

Page 692

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, J. Brendan Ryan, Circuit Atty., Richard G. Altobelli, Asst. Circuit Atty., St. Louis, for respondent.

SIMEONE, Judge.

This is an appeal from an order of the Circuit Court of the City of St. Louis entered after an evidentiary hearing overruling movant-appellant's motion made under Rule 27.26, V.A.M.R., to vacate a judgment and sentence, imposed upon a plea of guilty, for the offense of robbery in the first degree with a dangerous and deadly weapon.

On February 11, 1971, during the second day of the trial, movant pleaded guilty to the charge and was sentenced to six years imprisonment. On September 23, 1971, he filed his motion to vacate which was later amended. Hearing was held on January 21, 1972. His motion alleged: 1) ineffective assistance of counsel in several respects; 2) the failure of the police to advise him of his rights; and 3) that his plea was coerced by the prosecutor and his counsel and was made under anguish and duress.

At the evidentiary hearing appellant testified that he was arrested on July 3, 1970, and on two occasions was placed in a lineup. He said that he was not advised of his rights to remain silent or to have counsel appointed. On the second occasion he was identified as a participant in the robbery which took place on May 30, 1970. He admitted that prior to trial his court-appointed attorney explained the nature of the charge and the range of punishment.

When arrested, the police found a sawed-off shotgun which was apparently in the car. Appellant requested his attorney to file a motion to suppress this physical evidence, but was told 'he couldn't do it.' He also requested counsel to suppress the lineup identification.

Appellant saw his attorney and consulted with him 'about three' times, between fifteen to thirty minutes each time. He advised counsel that he had witnesses who would indicate his whereabouts on the day the robbery took place, but he did not see his witnesses at the trial. During the trial the gun was brought into the courtroom.

Sometime during the state's case the appellant brought up the subject of changing his plea, and spoke to counsel about it. Appellant testified that counsel told him he would possibly 'get five years' and that he would try to get him in a drug program or he might get 25 years if he was convicted upon trial. He testified that he was trying to find 'the quickest way home.' He discussed the plea with his sister who said that he would probably get out a lot quicker. Appellant decided to change his plea when he talked to his sister and counsel. He admitted he made his own decision. When asked about his right to appeal if he went to trial, he said he was informed by the judge that he would have such right.

Appellant changed his plea because he was dissatisfied with his attorney, because it would take time to 'fight it to come back to Court's and because 'they would bring in evidence in the Court that they weren't supposed to bring.'

Appellant's court-appointed attorney testified that he met with appellant three to six times prior to trial. After learning about the witnesses, he contacted one of them and spoke to him about seven times. He contacted one of appellant's witnesses and discussed the case with him, and spoke to the other two witnesses on the telephone about it. All agreed to testify.

The attorney did not make a motion to suppress the lineup identification because it appeared to him, after some investigation, that appellant had been given his rights, so it seemed to him that 'this was not a fruitful line to continue.' Based on his best judgment, he thought that the suppression of the lineup identification would have

Page 693

been fruitless. The attorney did not move to suppress the physical evidence because, as he stated, '. . . we'd be better off letting the prosecutor bring that sawed-off shotgun in the room, try to get it into evidence and, frankly, I was going to hit the prosecutor in the head with it, because they couldn't tie it up.' Counsel was told several times that appellant wanted different counsel so he tried to be relieved of his appointment, but the court would not do so.

Counsel also testified that during the trial appellant sent word that he wanted to speak to him, and then informed him that he wanted to plead guilty. Counsel informed appellant that if he did, an appeal would not lie, and that if he did 'You've lost everything and you could possibly walk out of here a free man today.' Counsel also informed appellant that if he pleaded guilty to a six-year sentence which was offered, and if the judge agreed, he could be allowed jail time which would then make his sentence 'five years and some odd months.' The attorney also testified that appellant told him he did not want the witnesses to testify; he wanted to testify himself.

After the hearing the court made findings of fact and conclusions of law. The findings recited that the only triable issues raised dealt essentially with the aspect of ineffective assistance of counsel. The court found that 'A reading of the transcript of the plea of guilty will demonstrate the lack of merit in this contention.' The court concluded:

'It is absolutely clear to this Court, and this Court so finds beyond a reasonable doubt that the plea of guilty entered in this cause was knowingly, voluntarily, and intelligently made, and that not one of Movant's constitutional rights were (sic) violated or infringed upon. The Court finds beyond all doubt that Movant did have effective assistance of counsel, and became disenchanted herein only after being sent to the penitentiary.'

Appellant makes four points on this appeal. He contends that the trial court erred in overruling his motion and in failing to find that:

1. He was inadequately represented by counsel prior to and at the entry of his plea of guilty in that trial counsel;

a. made an inadequate investigation of the facts to determine whether or not defenses were available to him;

b. failed to advise appellant of his legal rights should he proceed to trial and plead not guilty;

c. failed to advise him of his right to...

To continue reading

Request your trial
19 practice notes
  • Williams v. Estelle, Civ. A. No. CA 4-76-174.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • July 9, 1976
    ...437 (Mo.App.1975); State v. Nolan, 499 S.W.2d 240, 252 (Mo.App.1973); Hall v. State, 496 S.W.2d 300, 303 (Mo.App. 1973); Brown v. State, 495 S.W.2d 690, 694 (Mo.App.1973); Thebeau v. State, 491 S.W.2d 275, 277 (Mo.1973). 4 It should also be noted that even where the Texas Court of Criminal ......
  • McCrary v. State, No. 36400
    • United States
    • Missouri Court of Appeals
    • September 23, 1975
    ...of Civil Procedure. Rule 27.26(a). The burden is on the movant to establish relief by a preponderance of the evidence. Brown v. State, 495 S.W.2d 690, 693 (Mo.App.1973). In a 27.26 review we are limited to a determination of whether the order of the trial court is clearly erroneous. Rule 27......
  • State v. Jordan, No. 35021
    • United States
    • Missouri Court of Appeals
    • February 5, 1974
    ...817, 818(1) (Mo.1970); State v. Chavez, 483 S.W.2d 68, 69(1) (Mo.1972); State v. West, 484 S.W.2d 191, 192(1) (Mo.1972); Brown v. State, 495 S.W.2d 690, 694(9) (Mo.App.1973). 2 Because the confrontation at which Patrolmen Luss and Scott identified the defendant occurred prior to any indictm......
  • Nelson v. State, No. 36960
    • United States
    • Missouri Court of Appeals
    • May 25, 1976
    ...which did not produce an acquittal or some other desired result. Lahmann v. State, 509 S.W.2d 791, 794 (Mo.App.1974); Brown v. State, 495 S.W.2d 690, 693--694 Tested within these well-recognized principles, and after examining the transcript on appeal and the transcript of the 27.26 motion,......
  • Request a trial to view additional results
19 cases
  • Williams v. Estelle, Civ. A. No. CA 4-76-174.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Northern District of Texas
    • July 9, 1976
    ...437 (Mo.App.1975); State v. Nolan, 499 S.W.2d 240, 252 (Mo.App.1973); Hall v. State, 496 S.W.2d 300, 303 (Mo.App. 1973); Brown v. State, 495 S.W.2d 690, 694 (Mo.App.1973); Thebeau v. State, 491 S.W.2d 275, 277 (Mo.1973). 4 It should also be noted that even where the Texas Court of Criminal ......
  • McCrary v. State, No. 36400
    • United States
    • Missouri Court of Appeals
    • September 23, 1975
    ...of Civil Procedure. Rule 27.26(a). The burden is on the movant to establish relief by a preponderance of the evidence. Brown v. State, 495 S.W.2d 690, 693 (Mo.App.1973). In a 27.26 review we are limited to a determination of whether the order of the trial court is clearly erroneous. Rule 27......
  • State v. Jordan, No. 35021
    • United States
    • Missouri Court of Appeals
    • February 5, 1974
    ...817, 818(1) (Mo.1970); State v. Chavez, 483 S.W.2d 68, 69(1) (Mo.1972); State v. West, 484 S.W.2d 191, 192(1) (Mo.1972); Brown v. State, 495 S.W.2d 690, 694(9) (Mo.App.1973). 2 Because the confrontation at which Patrolmen Luss and Scott identified the defendant occurred prior to any indictm......
  • Nelson v. State, No. 36960
    • United States
    • Missouri Court of Appeals
    • May 25, 1976
    ...which did not produce an acquittal or some other desired result. Lahmann v. State, 509 S.W.2d 791, 794 (Mo.App.1974); Brown v. State, 495 S.W.2d 690, 693--694 Tested within these well-recognized principles, and after examining the transcript on appeal and the transcript of the 27.26 motion,......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT