Carrow v. State, 53923
| Decision Date | 07 June 1988 |
| Docket Number | No. 53923,53923 |
| Citation | 755 S.W.2d 328 |
| Parties | Carl David CARROW, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Shawn R. McCarver, Flat River, for plaintiff-appellant.
William L. Webster, Atty. Gen., Elizabeth Levin Ziegler, Asst. Att. Gen., Jefferson City, for defendant-respondent.
Movant appeals denial of post conviction relief under Rule 27.26. Findings of fact, conclusions of law and judgment denying relief were rendered without an evidentiary hearing. He appeals claiming (1) ineffective assistance of counsel, (2) defects in the presentation of charges which rendered guilty pleas involuntary, (3) consecutive sentences on four charges were not made concurrent to a prior sentence received in another county as apparently intended by the sentencing court, and, (4) credit for jail time allowed by the sentencing court has not been properly computed.
Prior to December 13, 1982, movant was charged in seven separately numbered criminal cases pending in St. Francois County, Missouri. Prior to that date he had been convicted by a jury and sentenced to serve five years for possession of a controlled substance in case number 781-488FX in Washington County. The St. Francois County cases included burglary second degree (CR781-595FX), resisting arrest (CR781-605FX), a felony stealing (CR781-606FX), carrying a concealed weapon (CR781-611FX), possession of marijuana over 35 grams (CR781-612FX), possession of a schedule II controlled substance, Ocycodone (Count I, CR781-715FX), Possession of a schedule II controlled substance, Amphetamine (Count III, CR781-715FX), possession of Pentobarbital and Amobarbital (Counts II & IV, CR781-715FX), and possession of LSD (CR781-696FX). All of the St. Francois County cases were set for trial in December, 1982.
On December 13, 1982, after a thorough and extensive hearing, the court accepted pleas of guilty on four charges: Burglary Second Degree, Resisting Arrest, and Counts I & III, charging possession of two schedule II controlled substances. The court accepted the pleas as made "voluntarily, knowingly and intelligently and with a full understanding of the charges and the consequences of his plea and an understanding of his rights attending a jury trial, and the effect of a plea of guilty on those rights."
Movant was represented by an attorney of his own choice at the time he entered the pleas of guilty. Previously, he had the assistance of appointed counsel. He informed the court that his plea attorney had investigated the case to movant's full satisfaction, including an interview with all witnesses known to movant. He had no complaints whatsoever about his attorney's handling of the case. He was fully satisfied with the advice and counsel of his attorney.
He acknowledged that there had been no threats made to him by anyone to coerce guilty pleas. The range of punishment for each charge was reviewed and acknowledged by movant. The plea bargain agreement was openly presented to the court before movant. The court informed movant that any promise of probation (movant does not claim such promise) or for a certain sentence would not be binding on the court and that the court might impose a maximum sentence on all charges "and run them all consecutive." Movant acknowledged that he understood each of these points and informed the court that he entered the guilty pleas because he was, in fact, guilty and was admitting that he committed the four offenses.
On January 14, 1983, the court imposed four, two-year consecutive sentences. On the occasion of sentencing, the court mentioned the four sentences in the pending cases and also referred to the Washington County sentence and concluded that the sentences were "for a total of eight years." Certified copies of the sentences and judgments of the court entered on January 14 1983, in the burglary case and both counts of the controlled substance case, were to be consecutive with each other, the resisting arrest charge "and with the Washington County case." The certified copy of sentence in the burglary case provides that the consecutive sentences on all of these cases was for "a total of eight years." There is an internal inconsistency. The sentencing court intended either a total of eight years or a total of thirteen years. The sentencing judge and the motion court judge were not the same.
Our review is limited to a determination of whether the findings, conclusions and judgment of the motion court were clearly erroneous. Rule 27.26(j); Laws v. State, 708 S.W.2d 182, 185 (Mo.App.1986). Because the court made findings and conclusions without the benefit of an evidentiary hearing we consider whether the claims of error are in response to factual pleadings, not refuted by the record, which resulted in prejudice to movant. Baker v. State, 680 S.W.2d 278, 280-81 (Mo.App.1984). Because all allegations of error followed guilty pleas our review is limited "to the extent that the alleged ineffectiveness of counsel bore upon the voluntariness, the knowledge and the intelligence with which the guilty plea is made." Oerly v. State, 658 S.W.2d 894, 896 (Mo.App.1983).
Movant's first point on appeal directly asserts ineffective assistance of counsel for failure to attempt to suppress evidence, to fully investigate the defense of mental disease or defect, undue pressure related to "threats" of harsher sentences, failure to pursue appeal in the Washington County case, the fact that three separate attorneys represented defendant, and, confused defendant, and, failure to prevent or clarify the ambiguity in the length of sentence. All except the last point were found by the motion court to be refuted by the record. Movant acknowledged that the attorney at the plea hearing was an attorney of his choosing; the attorney had adequately prepared the case, and, there was no undue influence of threat which had coerced the pleas. Although movant had been represented by prior counsel that fact alone did not detract from the adequacy of chosen counsel. Finally, the ambiguity of the length of sentence was not the result of any failure of defense counsel. We will return to that issue. The motion court correctly found the remaining claims refuted by the record. Point one denied.
Movant's second claim of error is the guilty pleas were not knowing and voluntary because of some failure of due process, particularly, violations of...
To continue reading
Request your trial
-
Brown v. State, No. 18590
...voluntary because of violations of movant's right to receive disclosure is waived by the entry of the guilty plea. Carrow v. State, 755 S.W.2d 328, 330[2,3] (Mo.App.1988). Movant's claim that the state knowingly used perjured testimony at the suppression hearing is unsupported by any facts ......
-
Peterson v. State, 16311
...movant's right to receive disclosure and right against entrapment ..., [are] waived by the entry of the guilty pleas." Carrow v. State, 755 S.W.2d 328, 330 (Mo.App.1988); cf. Lee v. State, 573 S.W.2d 131 (Mo.App.1978); Wilson v. State, 606 S.W.2d 266 (Mo.App.1980); Williams v. State, 437 S.......
-
Grove v. State
...credit jail time against his sentence is a habeas corpus action in the county where he is incarcerated. The State cites Carrow v. State, 755 S.W.2d 328 (Mo.App.1988), and Vance v. State, 773 S.W.2d 128 (Mo.App. filed May 2, 1989). Neither case, however, is factually identical to the instant......
-
White v. State
...defect in the proceedings and is, therefore, waived by a voluntary guilty plea understandingly made. See Carrow v. State, 755 S.W.2d 328, 330 (Mo.App. E.D.1988). In this case the motion court found that Mr. White "was fully informed of the details of the plea agreement and fully understood ......