Evans v. State
| Decision Date | 15 September 1982 |
| Docket Number | No. 12675,12675 |
| Citation | 639 S.W.2d 648 |
| Parties | John T. EVANS, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Blythe Crist-Brown, Wear & Wear, Springfield, for movant-appellant.
John D. Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.
Movant filed a motion under Rule 27.26 seeking to set aside his conviction and sentence for second degree burglary. Counsel was appointed for movant and an amended motion filed. Respondent then filed a motion to dismiss and following a hearing on the motion, the trial court determined that the motion and the files and record of the case, including the trial transcript, conclusively showed that movant was not entitled to relief and dismissed the motion. See Rule 27.26(e).
Movant contends that he sufficiently alleged ineffective assistance of counsel to entitle him to an evidentiary hearing. He contends that counsel was ineffective: (1) in not informing him that he could be cross-examined about previous convictions if he took the stand; (2) in failing to call a witness when that witness would have testified that gloves were frequently found in the area where a pair of gloves which testimony linked with movant were found; and (3) in not offering in evidence the clothes worn by movant on the night of the crime to show that they had no grain dust in them.
The burden upon movant to show ineffective assistance of counsel is a heavy one and is not met unless it is clearly demonstrated that the acts of counsel went beyond errors of judgment or trial strategy and became of such character as to result in substantial deprivation of movant's right to a fair trial. Covington v. State, 600 S.W.2d 186, 189 (Mo.App.1980). To prevail on a claim of ineffective assistance of counsel there must be a showing that the attorney failed to exercise the customary skill and diligence that a reasonably prudent attorney would perform under similar circumstances and that prejudice to the defendant thus occurred. Fields v. State, 596 S.W.2d 776, 777 (Mo.App.1980).
Defendant's direct appeal was affirmed here in State v. Evans, 606 S.W.2d 789 (Mo.App.1980). We can judicially notice that transcript. Langdon v. Koch, 435 S.W.2d 730, 733 (Mo.App.1968). The transcript reveals that even if the conduct of counsel alleged here occurred it was not sufficient to make counsel's overall performance ineffective assistance of counsel....
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Franklin v. State
...appeal. State v. Franklin, 591 S.W.2d 12 (Mo.App.1979). We judicially notice the transcript of that appeal. Evans v. State of Missouri, 639 S.W.2d 648, 649 (Mo.App.1982). Movant sought in the trial court to vacate the sentence pursuant to Rule 27.26 on the ground of ineffective assistance o......
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Funkhouser v. State, 16120
...grant the motion. State v. Hooper, 399 S.W.2d 115, 116 (Mo.1966); Franklin v. State, 655 S.W.2d 561, 563 (Mo.App.1983); Evans v. State, 639 S.W.2d 648, 649 (Mo.App.1982). Additionally, we note that the motion court made extensive and detailed findings of fact and conclusions of law as requi......
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Holzer v. State, 47923
...of professional judgment and is not an adequate ground to find appellant's trial counsel to have been ineffective. Evans v. State, 639 S.W.2d 648, 649-50 (Mo.App.1982). Further, when a defendant pleads guilty to a crime, the adequacy of her trial counsel's representation is immaterial and t......
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Tate v. State, 45512
...that this alleged omission of counsel resulted in a substantial deprivation of movant's right to a fair trial. See Evans v. State, 639 S.W.2d 648 (Mo.App.1982). He therefore fails the two-part test for relief on a claim of ineffective assistance of counsel set forth in Seales v. State, 580 ......