Burns v. State, 11541
| Decision Date | 10 June 1980 |
| Docket Number | No. 11541,11541 |
| Citation | 601 S.W.2d 633 |
| Parties | Omer Ray BURNS, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Michael Baker, Springfield, for movant-appellant.
John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.
Appellant filed a motion under Rule 27.26, V.A.M.R., to vacate and set aside his conviction and sentence of five years for violating § 561.450, RSMo 1969. The trial court determined that appellant was not entitled to an evidentiary hearing and denied the motion.
Appellant's points relied on contend: (1) that the trial court erred in denying the motion without a hearing, as the motion raised an issue of fact on whether he had ineffective assistance of counsel, in failing to investigate the criminal charge and in misleading appellant into waiving his right to appeal; (2) that the trial court erred in denying his motion because the information did not allege a crime or inform appellant of the charge against him; and (3) the trial court erred in denying his motion because he was sentenced to serve a term consecutive with the sentence of a charge on which he was still on probation.
Appellant's first point contends that he should be allowed to develop evidence to show that his attorney at the criminal trial failed to investigate the charge and misled him into waiving his right to appeal. His motion does not state what the investigation would have produced. A movant who bases a claim of ineffective assistance of counsel upon the grounds of inadequate investigation must show that a full investigation would have uncovered evidence which would have improved his trial position and that he was deprived of substantial evidence by counsel's neglect. Cole v. State, 573 S.W.2d 397, 401 (Mo.App. 1978). Where there is no allegation as to what the investigation would reveal, this contention can be determined from the face of the motion and no evidentiary hearing is required. Charles v. State, 570 S.W.2d 700, 702 (Mo.App. 1978). Appellant also contends that counsel failed to call a witness "who would have testified that the police altered the waiver of search of the house". The trial court found that the record of the criminal charge showed that the witness "claimed the Fifth Amendment" and was "inaccessible" and "unwilling" to testify and there was no prejudice to appellant in the witness not testifying. An assertion against counsel's choice of trial strategy with respect to calling or not calling witnesses, particularly those who cannot be interviewed beforehand, does not establish ineffective assistance of counsel. See Fields v. State, 596 S.W.2d 776, 778 (Mo.App. 1980).
The trial court determined that the record in the criminal trial "conclusively shows that movant voluntarily waived his right to appeal. . . ." and "that the court explained the rights to appeal in detail". The court stated that the record showed that "movant stated that counsel had not coerced him into the decision or talked him into it". The trial court found that the contentions regarding appellant's right of appeal were clearly refuted by the record and did not justify an evidentiary hearing.
The trial court may examine its records to determine if an evidentiary hearing is necessary. Rule 27.26(e), V.A.M.R. Where the files and records of the case conclusively show that the movant is...
To continue reading
Request your trial
-
Chastain v. State
...to appeal or perfect an appeal that establishes ineffective assistance. Brown v. State, 512 S.W.2d 404 (Mo.App.1974); Burns v. State, 601 S.W.2d 633 (Mo.App.1980). In speaking of the dismissal of an appeal, "[i]t is only where the defendant in a criminal case wishes to appeal and his attorn......
-
Newman v. State, 13371
...Spencer v. State, 615 S.W.2d 660, 662 (Mo.App.1981); Speakman v. State, 602 S.W.2d 471, 473[2-3] (Mo.App.1980); Burns v. State, 601 S.W.2d 633, 635 (Mo.App.1980). Moreover, we note that in a Rule 27.26 proceeding, the allegations of the motion do not prove themselves. Reed v. State, 626 S.W......
-
Collins v. State, 41324.
...strategy did not deprive movant of a fair trial nor does it serve as a basis for ineffective assistance of counsel. Burns v. State, 601 S.W.2d 633, 635 (Mo.App.1980); Covington v. State, 600 S.W.2d 186, 189 (Mo.App.1980); King v. State, 592 S.W.2d 262, 263 (Mo.App.1979); Williams v. State, ......
-
Greenhaw v. State
...facts which entitle movant to relief." Rice v. State, 585 S.W.2d 488, 493 (Mo.banc 1979) (citations omitted). Also see Burns v. State, 601 S.W.2d 633 (Mo.App.1980); Charles v. State, 570 S.W.2d 700 As a parting argument the appellant asserts the judgment must be reversed because the trial c......