Carpenter v. State

• Decision Date: 08 May 1972
• Docket Number: No. 56782,No. 2,56782,2
• Citation: 479 S.W.2d 466
• Parties: Leroy CARPENTER, Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 466

479 S.W.2d 466

Leroy CARPENTER, Appellant, v. STATE of Missouri, Respondent.

No. 56782.

Supreme Court of Missouri, Division No. 2.

May 8, 1972.

Jack Fleischaker, Joplin, Court Appointed, Atty., for appellant, William J. Fleischaker, Assisting.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.

HOUSER, Commissioner.

This is an appeal by Leroy Carpenter from a judgment overruling a motion filed under Criminal Rule 27.06, V.A.M.R., to vacate judgments of conviction entered May 6, 1963 on pleas of guilty and sentences of twenty years for armed robbery and five years for kidnapping.

Appellant was not provided with counsel at his preliminary hearing. His first point raises the question whether he had a right to appointment of counsel at the preliminary hearing held in 1963, and whether the convictions and sentences should be set aside on account of this omission and a new preliminary hearing ordered. Appellant points out that in Coleman v. Alabama (1970), 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, the United States Supreme Court recognized the right to counsel at a preliminary and suggests that the Missouri Supreme Court, by the amendment of its Criminal Rule 23.03 on December 7, 1970, effective July 1, 1971, recognized that right. Conceding that under State v. Caffey, Mo.Sup., 457 S.W.2d 657, this Court has ruled that Coleman v. Alabama is not to be applied retroactively appellant urges that Caffey be reconsidered; that we now apply Coleman v. Alabama retroactively and set aside the convictions and sentences upon the admitted fact that appellant had no counsel at the preliminary.

After submission of this case and on March 6, 1972, in Adams v. Illinois, 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202, the Supreme Court of the United States held that Coleman v. Alabama does not apply retroactively to preliminary hearings conducted prior to June 22, 1970, thus ratifying and confirming at least nine post-Caffey decisions of this Court so holding. ¹ Carpenter, having been tried long before June 22, 1970, and having failed to demonstrate that something occurred at the preliminary hearing by which he was affirmatively disadvantaged or that he was deprived of a fair trial in circuit court as a result of the omission to appoint counsel at the preliminary, has not shown that he has been prejudiced or that these convictions and sentences should be vacated on this ground. The claim of prejudice, based on the possibility that if counsel had been present at the preliminary he could have cross-examined the prosecuting witness, determined how good the prosecution's case was and perhaps suppressed any statements made by the prisoner at the time, or might have convinced the court that the prisoner should not be bound over for trial, is 'too speculative to afford any basis for relief.' State v. Van Regenmorter, Mo.Sup., 465 S.W.2d 613, 618; Fleck v. State, Mo.Sup., 443 S.W.2d 100, 101(2).

Appellant claims that if Coleman v. Alabama is not to be applied retroactively he nevertheless had a right to appointment of counsel at the preliminary under Hamilton v. Alabama (1961), 368 U.S. 52, 82 S.Ct. 157, 7 L.Ed.2d 114, which antedated the preliminary hearing. This point was raised and settled adversely to appellant's contention in State v. Ussery, Mo.Sup., 452 S.W.2d 146, and we need not plow this ground again.

Appellant next asserts error in the court's finding that he was adequately and effectively represented by counsel. Appellant argues that counsel should have moved to quash the information, should have requested a new preliminary hearing and should have moved to suppress the prisoner's confession. Contradicting himself, appellant then admits that counsel did file motions to accomplish these purposes, but objects that counsel did not advise the prisoner that these motions were filed. Appellant then executes another about face, admits that counsel did explain to him that the motions had been filed, but complains that counsel did not discuss with appellant the advisability of arguing those motions prior to entering the pleas of guilty. Whether the motions should have been argued was a technical, legal question as well as a strategic decision. While it would have been appropriate and doubtless preferable to discuss with their client the various reasons for not pressing the motions, counsel's failure to do so may not be characterized as ineffective representation. The contention that counsel should have made 'reasonable investigation of the facts and of the applicable law to learn of readily available facts which might have afforded (the) client a legitimate justiciable defense' is wholly without substance, in view of the fact that appellant confessed this crime, never repudiated his confession, and does not even now proclaim his innocence or suggest...