Decker v. State, 43539
| Decision Date | 22 September 1981 |
| Docket Number | No. 43539,43539 |
| Citation | 623 S.W.2d 563 |
| Parties | Charles Keith DECKER, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Michael D. Stokes, St. Louis, for appellant.
John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, George A. Peach, St. Louis, for respondent.
Rule 27.26 proceeding.
Movant was charged by two-count indictment with first degree robbery and stealing a motor vehicle. On November 16, 1977, a jury found him guilty of stealing a motor vehicle, but acquitted him on the robbery charge. In view of movant's seven previous felony convictions, the trial court sentenced him to ten years imprisonment under the Second Offender Act, § 556.280, RSMo. 1969. His conviction was affirmed on September 11, 1979. State v. Decker, 591 S.W.2d 7 (Mo.App.1979).
Movant's Rule 27.26 motion was denied without an evidentiary hearing. On this appeal, movant seeks an evidentiary hearing. We affirm.
Movant alleged ineffective assistance of counsel, based on several alleged errors by his trial counsel:
(1) Failure to advise movant of the maximum sentence.
(2) Failure to call certain witnesses.
(3) Failure to introduce certain police reports into evidence.
(4) Failure to make a thorough pre-trial investigation.
Movant's conclusory allegation as to the failure of counsel to advise him of the maximum sentence to which he was subject has no merit and warrants no discussion. Movant's allegation that counsel neglected to make a thorough pre-trial investigation does not state what that inquiry would bring to light. Therefore, the trial court rightly arrived at a conclusion concerning the proposition from the face of the motion. No evidentiary hearing was required. Burns v. State, 601 S.W.2d 633, 635 (Mo.App.1980).
This leaves us with two allegations to dispose of. First, movant alleged that his attorney failed to call certain witnesses whose names were provided to him. Said witnesses were identified as Police Officers Allen, Calcatera and Medlin of the St. Louis Metropolitan Police Department. Movant alleged that their testimony would establish the discrepancies between the physical descriptions of the perpetrators in the two police reports submitted in the robbery and car theft incidents and between movant's physique and the descriptions in the two police reports in question. He also claims that his trial counsel failed to make use of the police reports to establish the discrepancy between his appearance and the descriptions given in the police reports.
To be entitled to an evidentiary hearing on these assertions, movant had to allege facts that, if proved, would have entitled him to relief under Rule 27.26. In order to prove ineffective assistance of counsel, movant had to show both his attorney did not conduct himself with the ability and care of a reasonably capable attorney acting under comparable conditions and he was prejudiced thereby. Starkey v. State, 612 S.W.2d 861, 862 (Mo.App.1981).
In the case at bar, even if movant had proven all that he alleged, he would not have carried his burden of proving ineffective assistance of counsel. The allegations referred only to impeachment of the state's witnesses. They did not exonerate movant, nor did they even go to his...
To continue reading
Request your trial
-
Battle v. Armontrout, 88-2043 C (5).
...Holzer v. State, 680 S.W.2d 764, 767 (Mo. App.1984); Franklin v. State, 655 S.W.2d 561, 565 (Mo.App.1983); Decker v. State, 623 S.W.2d 563, 565 (Mo.App.1981). If counsel provides a reasonable basis for his strategy, such basis cannot render the assistance incompetent or ineffective. Guinan ......
-
Hinton v. State
...for a second appeal and will not serve as a forum for relitigating the guilt or innocence of the petitioner. See Decker v. State, 623 S.W.2d 563, 565 (Mo.Ct.App.1981).“ ‘The purpose of the post-conviction proceeding is to permit inquiry into constitutional issues involved in the original co......
-
Hanson v. State
...in two respects. To establish ineffectiveness to that degree, the burden was upon the movant to prove two factors. Decker v. State, 623 S.W.2d 563 (Mo.App.1981). First, that his counsel did not exercise the customary skill and diligence that a reasonably competent attorney would perform und......
-
Franklin v. State
...under comparable conditions and that movant was prejudiced thereby. State v. Thomas, 625 S.W.2d 115, 123 (Mo.1981); Decker v. State, 623 S.W.2d 563, 565 (Mo.App.1981). The claim that an attorney's investigation of a case is inadequate must allege what specific information the attorney faile......