Cloud v. State, KCD
| Decision Date | 29 March 1976 |
| Docket Number | No. KCD,KCD |
| Citation | 535 S.W.2d 577 |
| Parties | Jerry Robert CLOUD, Movant-Appellant, v. STATE of Missouri, Respondent. 28026. |
| Court | Missouri Court of Appeals |
Gerald Kiser, Public Defender, Liberty, for movant-appellant.
John C. Danforth, Atty. Gen., Nanette Laughrey, Asst. Atty. Gen., Jefferson City, for respondent.
Before DIXON, P.J., PRITCHARD, C.J., and WASSERSTROM, J.
Movant appeals the trial court denial of his 27.26 motion without evidentiary hearing. The direct appeal of movant's conviction is reported in Cloud v. State, 507 S.W.2d 667 (Mo.App.1974). The opinion there reported gives a sufficient statement of the basic facts of the armed robbery for which movant was convicted to obviate repetition of those facts.
Movant first contends that the trial court erred in denying his motion because the trial court did not, at the time of trial, hold an evidentiary hearing on the sanity of defendant. A court ordered mental examination of defendant revealed no basis for a finding of incompetency, either at the time of the offense or at trial. The movant never requested a hearing or in any way challenged the findings of the court ordered examination. The motion states no facts, and the trial transcript which is here demonstrates none, which would remotely suggest such an issue. Movant is simply in error in asserting that a hearing is required absent a bona fide doubt as to sanity. Ervin v. State, 525 S.W.2d 381 (Mo.App.1975); Boyer v. State, 527 S.W.2d 432 (Mo.App.1975).
Movant next predicates error on the failure of the trial court to conduct an evidentiary hearing on the movant's claim that his trial counsel was ineffective. The pro se motion asserts that counsel's ineffectiveness consisted of failing to file a motion pursuant to Rule 27.04 to reduce the jury-imposed sentence of 43 years. The amended motion filed after counsel was appointed in the proceedings on the motion broadens the claim in the facts in support to include 'for counsel's failure to render proper assistance by failing to protect Movant's rights in obtaining a fair trial, etc.' Whatever 'etc.' may be intended to mean in a pleading of this nature, it cannot aid the purely conclusionary nature of the claim in the amended motion that there was ineffective assistance of counsel as set forth in the pro se motion.
The issue then turns on the original premise of the pro se pleading. That premise is that the failure to file under Rule 27.04 shows ipso facto ineffectiveness of counsel which should have been determined by the trial court in an evidentiary hearing on the motion.
The flaw in this argument is that nowhere does the movant allege that prejudice to the defendant occurred as a result of this failure by counsel. The nearest approach to such a claim is the assertion by defendant, 'The circumstances of the case reveal that the punishment assessed was greater than ought to have been inflicted and certainly called for counsel to investigate gate the matter prior to sentencing.'
As noted, the trial transcript was made a part of the record in this case, and it has been re-examined in the light of the movant's contention. No such circumstances appear as movant's conclusion asserts. No requirement of case law or statute requires such a review, but the ineptly worded pro se motion presents no reasoned legal position, and the factual determination makes it clear none could be presented.
Movant also attacks the denial of an evidentiary hearing by asserting that his motion alleges that the State knowingly permitted the complaining witnesses, Mr. and Mrs. Studna, to testify falsely. The basis for that claim presents no factual issue. The claim rests on the admitted fact that at trial Mr. Studna did testify that the robber had a phony mustache. On the other hand, the police officer who interviewed Mr. Studna said that Mr. Studna said the robber had a wide...
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Ross v. State, 11552
...counsel to produce the supposed evidence, the court was not required to conduct an evidentiary hearing on the matter. Cloud v. State, 535 S.W.2d 577, 578(2) (Mo.App. 1976). The other remaining paragraphs and subparagraphs of movant's 27.26 motion contain a repetition of matters previously d......
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Wallace v. State, 38003
...a strong dissent that it was inequitable to require legal precision from a pro se motion, Smith v. State, supra. In Cloud v. State, 535 S.W.2d 577 (Mo.App.1976), the court rejected the movant's claim in a 27.26 motion that he was denied effective assistance of counsel because the movant fai......
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Voegtlin v. State
...in post conviction proceedings to order an evidentiary hearing to review evidence given at trial. V.A.M.R. 27.26; Cloud v. State, 535 S.W.2d 577, 578(3) (Mo.App.1976); Tyler v. State, 501 S.W.2d 189, 190--191(2, 4) An evidentiary hearing on a 27.26 motion will be had only if the movant plea......