Crow v. State

• Citation: 492 S.W.2d 40
• Decision Date: 22 February 1973
• Docket Number: No. 9378,9378
• Parties: Glen CROW, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Court of Appeal of Missouri (US)

Page 40

492 S.W.2d 40

Glen CROW, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 9378.

Missouri Court of Appeals, Springfield District.

Feb. 22, 1973.

John C. Danforth, Atty. Gen., Stephen D. Hoyne, Asst. Atty. Gen., Jefferson City, for respondent.

Henry Warten, Joplin, for movant-appellant.

BILLINGS, Judge.

This is an appeal from the denial of an amended petition for a writ of error coram nobis. We affirm the judgment of the trial court.

The history of this case vividly demonstrates the various constitutional thoroughfares opened to convicted defendants by the Federal Judiciary in recent years and the resultant imposition of a federal code of criminal procedure on the States. This review marks the fourth appellate consideration of appellant's attacks on sentences originally entered in 1962. ¹ Because this proceeding also questions the validity of prior convictions of 1943 and 1944, used in applying the Second Offender Act (§ 556.280, V.A.M.S., and hereinafter referred to as the Act), a chronological account of events is called for.

In 1943 appellant was arrested and charged with the felony of stealing chickens in the nighttime (§ 560.161, V.A.M.S.). While awaiting trial on this charge he was charged with attempting to break jail (§ 557.410, V.A.M.S.). On October 18, 1943, he entered a plea of guilty to this latter charge and was sentenced to two years in the penitentiary. Appellant entered a plea of guilty in the chicken stealing case on January 19, 1944. He was sentenced to a two year term in the penitentiary with the sentence to be served concurrently with the earlier sentence.

On March 6, 1962, appellant was found guilty of burglary and stealing by a jury and by reason of the aforesaid prior convictions the Act was found applicable. Allocution and sentencing of appellant was deferred until April 24, 1962, at which time appellant's employed trial attorney failed to appear. However, he was sentenced under the Act to terms of ten years for burglary and five years for stealing with the sentences to be served concurrently. Appellant's first appeal followed.

In State v. Crow, Mo., 377 S.W.2d 129, the case was reversed and remanded for allocution (the reasons therefor being set forth at pages 132, 133). In the opinion the court agreed with appellant that a violation of § 557.410, V.A.M.S. (attempted jail break) was a misdemeanor but did not find it necessary to determine if such an offense was sufficient to invoke the Act since the allegation and proof of the chicken stealing offense was sufficient to make the Act applicable.

Thereafter, on May 7, 1964, appellant filed a motion to set aside the sentences and judgments in the jailbreak attempt and the chicken stealing cases. On May 12, 1964, a corrected judgment was entered in the attempted jailbreak case and he was sentenced to one year in the county jail. He was credited with the time served in the penitentiary in the jailbreak attempt case and ordered discharged under that sentence. His motion attacking the chicken stealing judgment was overruled.

On May 13, 1964, allocution was granted appellant on the burglary and stealing charges and he was re-sentenced to the same terms he had earlier received but without credit for the approximately two years he had already served on these sentences. Appellant's second appeal followed.

In State v. Crow, Mo., 388 S.W.2d 817, the court again held the chicken stealing conviction was sufficient to invoke the Act, aside from any surplus allegation and proof of the jailbreak attempt conviction. The court ordered appellant be credited with the time he had spent in the penitentiary under the 1962 sentences and affirmed the judgment.

Subsequently, and sometime prior to April 6, 1970, appellant was released from custody by reason of the communation of the burglary and stealing sentences. Appellant was returned to custody of the Department of Corrections under another judgment and sentence of the Circuit Court of Jasper County entered April 6, 1970. (See State v. Crow, Mo., 465 S.W.2d 478).

In 1971 appellant filed his petition for a writ of error coram nobis in the Circuit Court of Jasper County attacking the application of the Act in his burglary and stealing sentence. ² Upon denial by the trial court, appellant's third appeal was filed.

On review the Supreme Court (State v. Crow, Mo., 475 S.W.2d 71), held appellant was entitled to appointed counsel and an evidentiary hearing on his allegation he was not represented by counsel at his chicken stealing plea, this issue not having been ruled in the prior appeals. In remanding the case the court said (l.c. 72):

'. . . At that time both sides will be afforded an opportunity to present evidence as to whether appellant had counsel in connection with the judgment and sentence for stealing chickens in the nighttime, and if he did not, whether he knowingly and intelligently waived such counsel.

'Since this case is being remanded for hearing, we deem it appropriate to refer to another question which ought to be resolved on remand. The information charging appellant in the burglary and stealing case actually alleged two prior convictions as well as the offenses of burglary and stealing. One prior conviction was for stealing chickens in the nighttime, the case in which appellant now contends that he did not have counsel. The other prior conviction was for attempted jailbreak in 1943. If this later prior conviction justified prosecution of appellant under the Second Offender Act when he was charged and convicted with burglary and stealing, then he would not be entitled to relief in his coram nobis proceeding herein even if he was without counsel at the time of his conviction and sentence in the case of stealing chickens in the nighttime and even though he had not sufficiently waived counsel. Hence, on remand, we suggest that attention be given to this question of whether the other prior conviction justified conviction under the Second Offender Act.

'This question of whether the prior conviction for attempted jailbreak would justify application of the Second Offender Act is not raised in the petition for writ of coram nobis, and hence is not involved in this case at the present time. The brief filed in this court by appointed counsel for appellant points out that the judgment in the case of attempted jailbreak did not show presence of counsel, but there is no evidence with reference thereto and, as previously mentioned, the issue is not even raised in the petition for writ of coram nobis. It may be raised by amendment on remand.

'In connection with this prior conviction for attempted jailbreak, we also realize that on a prior direct appeal it was asserted that such offense was a misdemeanor and could not serve as a basis for invoking the Second Offender Act. This court in State v. Crow, Mo., 388 S.W.2d 817, concluded that it was not necessary to reach that question and hence it was not decided. However, we should point out that such a question was considered subsequently by this court in State v. Bosler, Mo., 432 S.W.2d 237(3--4).'

On June 2, 1972, through appointed counsel, appellant filed an amended petition for a writ of error coram nobis seeking to set aside the May 13, 1964, judgment for burglary and stealing. His alleged grounds for relief were: (a) that in the chicken stealing case he was not represented by counsel and did not knowingly and intelligently waive his right to counsel; (b) that the attempted jailbreak case conviction could not be considered to make the Act applicable because (1) it had been set aside on May 12, 1964, and, (2) on May 12, 1964, he was not represented by counsel, did not waive his right to counsel and did not plead guilty on May 12, 1964.

Following a lengthy evidentiary hearing on July 19, 1972, the trial court entered findings of fact and conclusions of law and overruled appellant's motion.

Since the appellant is not in custody under the burglary and stealing sentences he seeks to have invalidated, coram nobis, rather than a motion under Rule 27.26 V.A.M.R., is an appropriate remedy. Halley v. State, Mo., 485 S.W.2d 5, Bibbs v. State, Mo., 476 S.W.2d 590; State v. Crow, Mo., 475 S.W.2d 71; State v. Stodulski, Mo., 298 S.W.2d 420. And as Stodulski held (l.c. 425) the burden was on appellant to prove the allegation of his motion and overcome the presumption the proceedings were correct. See also Collins v. State, Mo., 450 S.W.2d 186.

An action to vacate a judgment of conviction by motion under Rule 27.26 or by coram nobis is a civil proceeding and governed by the rules of civil procedure. State v. Warren, Mo., 344 S.W.2d 88; State v. Smith, Mo., 324 S.W.2d 707. Our review is limited to the determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Thomas v. State, Mo., 465 S.W.2d 513. And in determining the fact issues raised by appellant in his petition, the credibility of witnesses and weight of evidentiary matters are for the trial court. Lansdown v. State, Mo., 464 S.W.2d 29; Peterson v. State, Mo., 444 S.W.2d 673; certiorari denied 398 U.S. 931, 90 S.Ct. 1827, 26 L.Ed.2d 95, re-hearing denied 399 U.S. 937, 90 S.Ct. 2257, 26 L.Ed.2d 810.

At the evidentiary hearing appellant's evidence focused on the factual issue referred to in State v. Crow, Mo., 475 S.W.2d 71, namely, that at the time he entered the plea of guilty to stealing chickens in the nighttime he was not represented by counsel, and that he did not knowingly and intelligently waive his constitutional right to assistance of counsel.

Appellant's father testified he employed Attorney R. A. Mooneyham (now deceased) to represent his son in the chicken stealing case; that he (the father) was present in the courtroom at Carthage on January 19, 1944, when appellant pleaded guilty and that Attorney Mooneyham was not present. He said that after the court proceedings he went across the street to the attorney's office in Carthage...