Dover v. State, 14761

• Decision Date: 12 March 1987
• Docket Number: No. 14761,14761
• Parties: Gary L. DOVER, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 915

725 S.W.2d 915

Gary L. DOVER, Appellant, v. STATE of Missouri, Respondent.

No. 14761.

Missouri Court of Appeals,

Southern District,

Division One.

March 12, 1987.

Nancy A. McKerrow, Columbia, for appellant.

William L. Webster, Atty. Gen., Colly Frissell-Durley, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Chief Judge.

On November 26, 1984, Gary L. Dover ("movant") entered a plea of guilty to an information charging him with driving while intoxicated, § 577.010.1, RSMo Cum.Supp.1984, and also charging him with having pleaded guilty to, or having been found guilty of, "two or more intoxication-related traffic offenses within ten years of the instant offense." ¹ The trial court accepted the plea of guilty, found movant guilty, and sentenced him to three years' imprisonment.

Several months later, movant filed a motion per Rule 27.26, Missouri Rules of Criminal Procedure (16th ed. 1985), to vacate the conviction. Counsel was appointed for movant, an evidentiary hearing was conducted, and the judge (henceforth referred to as "the motion court") entered findings of fact, conclusions of law, and judgment denying the motion. Movant appeals from that judgment. His lone assignment of error is:

"The [motion] court was clearly erroneous in entering findings of fact and conclusions of law denying [movant] post-conviction relief because [movant] had been denied his right to effective assistance of counsel in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, Section 18(a) of the Missouri Constitution in that the record clearly indicates that his defense counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under the same or similar circumstance by failing to adequately investigate the prior convictions relied on by the State to charge [movant] as a persistent offender. [Movant] was prejudiced by his defense counsel's ineffectiveness because he entered a plea of guilty without being informed that two of those prior convictions could not have been used to enhance his punishment, and therefore, his plea was involuntary and unknowing. In the alternative, the [motion] court's findings do not adequately address [movant's] allegation of ineffective assistance of counsel."

Driving while intoxicated is, for the first offense, a class B misdemeanor, § 577.010.2, RSMo Cum.Supp.1984, the authorized imprisonment for which is a term not to exceed six months, § 558.011.1(6), RSMo Cum.Supp.1984. However, § 577.023.3, RSMo Cum.Supp.1984, provides, among other things, that any person who pleads guilty to driving while intoxicated, and who is alleged and proved to be a persistent offender, shall be guilty of a class D felony. The authorized imprisonment for a class D felony is a term not to exceed five years. § 558.011.1(4), RSMo Cum.Supp.1984.

The term "persistent offender," as employed in § 577.023.3, above, is defined by § 577.023.1(2), RSMo Cum.Supp.1984:

"A 'persistent offender' is one who has pleaded guilty to or has been found guilty of two or more intoxication-related traffic offenses committed at different times within ten years of a previous intoxication-related traffic offense conviction;".

The information to which we referred in the first paragraph of this opinion alleged that movant, on or about August 19, 1984, operated a motor vehicle in an intoxicated condition. Seeking to invoke the persistent offender provisions mentioned above, the information further alleged, inter alia:

"On or about October 4, 1983, [movant] was convicted in Associate Circuit Court of Scott County, Missouri, of driving while intoxicated, and

On or about June 2, 1982, [movant] was convicted in Associate Circuit Court of Scott County, Missouri, of driving while intoxicated, and

On or about October 24, 1979, [movant] was convicted in Associate Circuit Court of Scott County, Missouri, of driving with .10% or more by weight of alcohol in the blood."

Henceforth, we shall refer to those three convictions, respectively, as "the 1983 case," "the 1982 case," and "the 1979 case." The conviction movant attacks in this 27.26 proceeding shall be referred to as "the 1984 case."

The transcript of the guilty plea proceeding in the 1984 case--received as evidence at the evidentiary hearing in the motion court--showed that movant was represented in the 1984 case by attorney G____. During the guilty plea proceeding, the trial court asked the prosecutor to outline the evidence he would present if the case were tried. The prosecutor's narrative included a statement that movant had the three convictions alleged in the information. Then, this:

"Q (By the Court) Mr. Dover, did you hear the statements of the prosecutor?

A Yes, sir.

Q Are those statements substantially correct?

A They are true."

Movant also told the trial court, among other things, that he (movant) had discussed the facts and the law with G____, that he was satisfied with G____'s services, and that G____ had done everything movant had asked of him. At the conclusion of the proceeding, the trial court found that movant's plea of guilty was made voluntarily and intelligently, with full understanding of the charge and the consequences of the plea. The trial court further found there was a factual basis for the plea.

Movant's motion to vacate, filed pro se, contained, among its rambling and abstruse allegations, an averment that the "prior convictions were not valid for the reason that the Movant never had counsel for the defense without a valid written waiver of counsel for his defense."

An amended motion, filed by movant with the assistance of appointed counsel, alleged that G____ was ineffective in that he failed to discover that two of the convictions relied on by the State to establish that movant was a persistent intoxication-related traffic offender could not be used for such purpose, as the records thereof showed that movant was not represented by counsel in those cases, and the records did not show that movant waived his right to counsel in those cases. If G____ knew of those defects, he did not, according to the amended motion, advise movant about them. Furthermore, pleaded the amended motion, the records of those cases did not show that any inquiry was made into movant's "intellectual capacity, education and familiarity with legal procedures."

At the evidentiary hearing in the motion court, movant's appointed counsel presented the court record of the 1982 case. The record stated that movant, on June 2, 1982, appeared in court in person and entered a plea of guilty to driving while intoxicated, which plea the court determined to be freely, knowingly and voluntarily entered. Nothing in the record indicated that movant, at the time he entered the plea, was represented by counsel, and nothing in the record indicated that movant knowingly and voluntarily waived representation by counsel. The punishment in the 1982 case was a $200 fine.

The prosecutor, at the evidentiary hearing in the motion court, presented the court record of the 1983 case. That record stated that movant, on October 4, 1983, appeared in court in person and with counsel, Lloyd Briggs, and entered a plea of guilty to driving while intoxicated. The punishment in the 1983 case was a six-month jail sentence.

The prosecutor also presented, at the evidentiary hearing in the motion court, the court record of the 1979 case. That record stated that movant, on October 24, 1979, appeared in court in person and with counsel, G____, and entered a plea of guilty to operating a motor vehicle with "Blood Alcohol Content in excess of .10%." ² The punishment in the 1979 case was a $250 fine.

Movant, testifying at the evidentiary hearing in the motion court, said that at the time he pled guilty in the 1984 case, he was unaware that in order for a conviction of an intoxication-related traffic offense to be used for enhancement purposes, the record thereof had to show that the accused was represented by counsel or that he waived counsel. On cross-examination, movant admitted he was represented by counsel in the 1979 case and the 1983 case.

The motion court's findings of fact and conclusions of law included the following:

"The record is silent as to whether [movant] was represented by counsel in [the 1982 case], if that is, in fact, relevant, but the Court finds that requirements of the statute would be satisfied if only the [1983 and 1979] cases in which [movant] was represented by counsel had been used by the state as grounds to charge the [movant] as a persistent offender, therefore, [movant] was represented by counsel on at least two of the occasions charged, thus rendering the question moot whether a guilty plea case without counsel can be counted against a defendant to find him a persistent offender at law."

Movant's primary contention on appeal, as we comprehend the prolix argument in his brief, is that had he stood trial in the 1984 case, neither the 1983 case nor the 1982 case could have been used to establish that he was a persistent intoxication-related traffic offender. Movant's theory regarding the 1983 case, which we shall consider first, is that because the record thereof failed to show that the judge who accepted movant's plea of guilty went through each of the steps required by Rule 24.02(b)-(d), Missouri Rules of Criminal Procedure (14th ed. 1983), ³ said conviction "could not have been used to enhance [movant's] punishment."

In an effort to support that premise, movant cites State v. Pfeifer, 544 S.W.2d 317 (Mo.App.1976). There, the State attempted to use a 1970 misdemeanor conviction of driving while intoxicated as a basis for enhancing punishment for a 1974 charge of driving while intoxicated. The court record of the 1970 conviction showed that the accused's attorney appeared and entered a plea of guilty on the accused's behalf. At that time, Rule 29.02 provided that no person shall be...