Burnside v. State, 56170

• Decision Date: 13 December 1971
• Docket Number: No. 1,No. 56170,56170,1
• Citation: 473 S.W.2d 697
• Parties: Thomas E. BURNSIDE, Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 697

473 S.W.2d 697

Thomas E. BURNSIDE, Appellant, v. STATE of Missouri, Respondent.

No. 56170.

Supreme Court of Missouri, Division No. 1.

Dec. 13, 1971.

Darragh K. Kasakoff, Legal Aid and Defender Society of Greater Kansas City, Kansas City, for appellant; Willard B. Bunch, Chief Defender, Kansas City, or counsel.

John C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, for respondent.

WELBORN, Commissioner.

Appeal from denial of relief in proceeding under Supreme Court Rule 27.26, V.A.M.R., from judgment and sentence of five years' imprisonment for burglary, second degree, imposed upon jury verdict.

In this court, the first three points of error relate to the failure of trial counsel and the trial court to advise movant of his rights relating to appeal of his conviction. Thomas E. Burnside was represented at his trial by Mr. Robert Frager, an attorney employed by movant and movant's mother. Movant had a twelfth grade education and had had no previous serious brushes with the law. Movant was vague as to what Frager told him about an appeal. He said that he recalled one discussion of the subject with Frager but that he was never advised about his right to appeal as an indigent. Movant stated that he wanted to appeal, although he could not recall having told Frager of such wish. Movant's mother testified that, upon the return of the jury verdict, 'Mr. Frager kind of rushed me back over on the other side there, and Tom told me he didn't want a parole, and Mr. Frager advised him that would be the best way out. That's what he said. I said, 'What about appeal or something else can be done.' He said, 'Mrs. Burnside, that takes money,' and said, 'A parole would be the best way out for Tom, I advise,' and he gave us some papers and rushed us over to the Missouri State Office Building right quick, and that was the last I heard, besides sending him some more money.'

Mr. Frager testified:

'I know after the jury came back with its verdict, and after the hearing, Mr. Burnside was authorized to continue on his bond. At that time I discussed with Mr. Burnside the right of appeal, and I do not remember at this time whether it was his mother and/or his wife was present. I did file a motion for new trial, and I know at the time of sentencing, where he got a parole, I do remember specifically telling him that he did have a right of appeal. I know I did discuss several times the question involved, at least the question I felt was involved, and his chances of an appeal, and it was his decision that since he got a parole he did not want to pursue his right of appeal, whether it be me or whether the Court would appoint someone to represent him on appeal.

'I told him that normally the charges of making an appeal, the costs would be the transcript, nominal cost for filing the notice of appeal, and, of course, there would be my charges, but if he couldn't afford one, then, of course, the Court would appoint an attorney and then he could get a transcript and could have the charges waived.

'Q. It is your recollection then that you specifically advised him that if he was unable to afford the costs that you mention here as having explained to him that are involved in taking an appeal, that he would be able to take an appeal without cost to himself?

'A Yes, sir.'

A timely motion for new trial was filed by Frager on behalf of the movant on October 7, 1968. The motion was overruled on December 12, 1968 and sentence was deferred, pending a presentence investigation. On March 24, 1969, sentence was pronounced and movant placed on probation. On October 8, 1969, probation was revoked and movant placed in the custody of the Department of Corrections. His 27.26 motion was filed February 27, 1970.

,The trial court made the following finding:

'The Court finds that petitioner was represented in the criminal case by Mr. Robert Frager, his family attorney, who is an able, experienced criminal lawyer who duly filed motions for acquittal and new trial and fully advised petitioner of his right to appeal, including the right to proceed in forma pauperis. These motions were overruled by the Court, and petitioner was placed on probation by the Court with the Missouri State Board of Probation, which petitioner accepted.

'The Court finds petitioner decided not to appeal his criminal conviction after fully considering and discussing the matter with his attorney.

'No further action was taken until October 8, 1969, when his probation was revoked following a court hearing with petitioner and his attorney present, which disclosed that petitioner had been involved in a shooting and also had assaulted a deputy sheriff.

'Petitioner made no complaint concerning his attorney until June 22, 1970, and the Court finds his attorney did advise him of his right to appeal and this contention is without merit and it is overruled.'

The trial court's finding, on the conflicting testimony before him, was not clearly erroneous. The trial court had to resolve the conflict in the testimony and no reason is advanced here for rejection of the trial court's finding. Not being clearly erroneous, the finding must be affirmed. State v. Mountjoy, Mo.Sup., 420 S.W.2d 316; Crosswhite v. State, Mo.Sup., 426 S.W.2d 67. The finding is dispositive of the...