Collins v. State, 56874

• Decision Date: 10 April 1972
• Docket Number: No. 56874,No. 1,56874,1
• Citation: 479 S.W.2d 470
• Parties: Melvin COLLINS, Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 470

479 S.W.2d 470

Melvin COLLINS, Appellant, v. STATE of Missouri, Respondent.

No. 56874.

Supreme Court of Missouri, Division No. 1.

April 10, 1972.

Motion for Rehearing or to Transfer to Court en Banc Denied

May 8, 1972.

Grantham & Welsh, David L. Welsh, Bridgeton, for appellant.

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

WELBORN, Commissioner.

Appeal from judgment dismissing, without a hearing, motion under Supreme Court Rule 27.26, V.A.M.R., to set aside two judgments of conviction of murder, first degree, and judgment of conviction of as sault with intent to rob, entered on pleas of guilty.

On February 19, 1971, Melvin Collins filed his pro se motion under Supreme Court Rule 27.26, V.A.M.R., to set aside his three convictions. The grounds for relief, as summarized in appellant's brief here, were:

'a. That the three indictments were fatally defective.

'b. That the trial court erred when it ordered him to Fulton State Hospital No. 1 for a psychiatric examination and then did not properly resolve his mental competency before accepting his guilty plea.

'c. That he was not afforded effective assistance of counsel before or during the critical stages of his trial before entering a coerced plea of guilty.

'd. That his plea of guilty was involuntary and the totality of events and circumstances which preceded his coerced guilty plea were in violation of his constitutional rights.'

On April 22, 1971, without a hearing and without appointing counsel, the trial court dismissed the motion. The court found that grounds (c) and (d) had been raised in a prior motion and determined adversely to the movant. See Collins v. State, Mo., 450 S.W.2d 186. The court held that points (a) and (b) could have been raised in the prior motion and were therefore precluded under subparagraph (d) of Supreme Court Rule 27.26, V.A.M.R. The court further found that, as a matter of law, those grounds afforded no basis for relief.

On this appeal, appellant contends that his motion set forth new grounds for relief and that he is not precluded from raising them now because they were not known to him at the time of his first motion. This argument is directed to grounds (a), (b) and (c) of the motion. No attempt is made to demonstrate that the trial court's ruling was erroneous as to ground (d). Nor does appellant attack the trial court's alternative basis for its ruling on ground (a). The attack on the indictments was on the murder charges only and was based upon the failure to charge there that 'leaden balls shot out of the pistol did strike and penetrate' the victim. The trial court's ruling that such omission did not render the indictments void was based upon State v. Brookshire, Mo., 368 S.W.2d 373, 380--381(1). The trial court's determination of this issue as a matter of law was correct and there is no necessity to reach the alternate ground of the trial court's ruling.

The appellant does attack the trial court's alternate disposition of ground (b) as a matter of law. Relying on the decision of the United States District Court for the Western District of Missouri in Brizendine v. Swenson, 302 F.Supp. 1011, appellant contends that the fact that he had been subjected to an examination to determine his competency to stand trial and whether he had a mental disease excluding criminal responsibility (Chapter 552, RSMo 1969, V.A.M.S.) required the trial court to conduct a hearing on the issue of mental competency, although the report of psychiatric examination found no lack of competency and although no exception to the report was taken by the defendant.

In McCormick v. State, Mo., 463 S.W.2d 789, this court rejected the contention that federal...