Fields v. State

• Decision Date: 06 November 1978
• Docket Number: No. 60562,60562
• Parties: Edward FIELDS, Jr., Movant-Appellant, v. STATE of Missouri.
• Court: Missouri Supreme Court

Page 477

572 S.W.2d 477

Edward FIELDS, Jr., Movant-Appellant, v. STATE of Missouri.

No. 60562.

Supreme Court of Missouri, En Banc.

Nov. 6, 1978.

Terry Daley, Asst. Public Defender, Rolla, for movant-appellant.

Stanley Robinson, Asst. Atty. Gen., Jefferson City, for respondent.

SEILER, Judge.

In 1975, appellant was convicted of rape and sentenced to twenty-five years imprisonment. The conviction was affirmed on appeal. State v. Fields, 538 S.W.2d 348 (Mo.App.1976). In 1976 and again in 1977, appellant filed Pro se motions pursuant to rule 27.26 to vacate the sentence. Each motion was accompanied by a "motion for leave to appeal (sic) in Forma Pauperis." These motions to appear in forma pauperis were denied in the trial court because the first motion did "not contain any allegation of error not contained in (appellant's) motion for new trial and not presented and determined on appeal," and because "all matters in (appellant's second) motion under rule 27.26 were raised and ruled in the appeal." Appellant did not appeal from either ruling. Appellant filed a third rule 27.26 motion stating the ground that "movant was denied effective assistance of counsel." This ground had not been alleged in appellant's two previous motions. Appellant's only stated reason for not having raised this ground in his previous motions was "ineffective assistance of counsel was not raised because I didn't know or understand what could be raised on a 27.26 motion." On February 28, 1977, the trial court denied appellant's third 27.26 motion without evidentiary hearing and appellant appealed.

Relying on Nolan v. State, 484 S.W.2d 273, 274 (Mo.1972), the court of appeals determined that a second or successive rule 27.26 motion is not to be entertained where the ground presented in the second or successive motion could have been raised in the first motion pursuant to rule 27.26(c) unless the movant alleges a reason or reasons which, if established by proof, would authorize a finding that he could not previously have presented these new grounds. Relying further upon Grant v. State, 486 S.W.2d 641, 643-44 (Mo.1972), the court of appeals held that the bare allegation of "lack of legal knowledge" is insufficient to authorize a finding that the movant could not have previously presented the new grounds in a previous rule 27.26 motion. See Careaga v. State, 552 S.W.2d 25, 27 (Mo.App.1977); Evans v. State, 545 S.W.2d 674, 675 (Mo.App.1976).

We granted transfer for the purpose of reviewing our procedures in respect of post-conviction motions to vacate sentence or judgment under rule 27.26, although we will dispose of the case as though here on original appeal. For reasons stated below, we reverse and remand.

I

Rule 27.26, originally adopted by this court in 1953, ¹ was "radically amended" in 1967, ² State v. Maxwell, 411 S.W.2d 237, 241 (Mo.1967), "after considerable study and is intended to provide a post-conviction procedure in accord with the principles enunciated in the so-called trilogy of Sanders v. United States, 373 U.S. 1, 83 S.Ct. 1068, 10 L.Ed.2d 148 ((1963)), . . . Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 ((1963)), and Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 ((1963)). Further in keeping with the teachings of the trilogy, the amended rule is designed to discover and adjudicate all claims for relief in one application and avoid successive motions by requiring motions to be in questionnaire form and by providing for the appointment of counsel if the motion presents questions of law or issues of fact and the movant is shown to be indigent." State v. Stidham, 415 S.W.2d 297, 298 (Mo. banc 1967).

A motion under the rule "ordinarily cannot be used as a substitute for direct appeal involving mere trial errors or as a substitute for a second appeal." Rule 27.26(b)(3). It is not the proper vehicle for the relitigation of a defendant's guilt or innocence, Bradley v. State, 494 S.W.2d 45, 48 (Mo.1973); Robinson v. State, 491 S.W.2d 314, 315 (Mo.1973). Its "sole purpose . . . is to determine whether defendant's original trial was violative of any constitutional requirements or if the judgment was otherwise void." Wright v. State, 459 S.W.2d 370 (Mo.1970). It is, in short, a procedure designed to achieve a unitary and expeditious post-conviction review of alleged constitutional defects in the trial or sentence of a criminal defendant where the challenge to such defects has not been knowingly and voluntarily waived, Nickens v. State, 506 S.W.2d 381, 386 (Mo.1974), and the asserted defects have not been passed upon in a prior appeal. It is intended to bring a measure of resolution and finality to the criminal proceedings of this state.

The rule has been the subject of high praise as "the most enlightened postconviction procedure of any state", Garton v. Swenson, 266 F.Supp. 726 (W.D.Mo.1967) to which "no greater success" in the structuring of a state postconviction can be compared. Lay, Post Conviction Remedies and the Overburdened Judiciary: Solutions Ahead, 3 Creighton L.Rev. 5, 21 (1970). By this court's adoption of the amended rule, it "assumed complete responsibility for protecting constitutional rights in accordance with federal principles," Anderson, Post-Conviction Relief in Missouri Five Years Under Amended Rule 27.26, 38 Mo.L.Rev. 1, 43 (1973), embracing "state primacy" in the implementation and administration of guarantees of fair and just procedures as an integral part of our criminal law. See Case v. Nebraska, 381 U.S. 336, 344-45, 85 S.Ct. 1486, 14 L.Ed.2d 422 (1965) (Brennan, J., concurring).

"Both the individual criminal defendant and society have an interest in insuring that there will at some point be the certainty that comes with an end to litigation, and that attention will ultimately be focused not on whether a conviction was free from error but rather on whether the prisoner can be restored to a useful place in the community. It is with this interest in mind, as well as the desire to avoid confinements contrary to fundamental justice, that courts and legislatures have developed rules governing the availability of collateral relief." Sanders v. United States, 373 U.S. 1, 24-25, 83 S.Ct. 1068, 1082, 10 L.Ed.2d 148 (1963) (Harlan, J., dissenting); See also Schneckloth v. Bustamonte, 412 U.S. 218, 256-66, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (Powell, J., concurring). Our experience in Missouri is no exception.

However praiseworthy and philosophically sound our amended rule 27.26 may be, its implementation and the practice under it have been confused by the plethora of appellate judicial opinions which construe the application of the rule in various circumstances. See Anderson, Supra, 38 Mo.L.Rev. at 2-3. Any cursory glance at West Publishing Company's General Digest (covering all jurisdictions) under the relevant key number reveals an overwhelming preponderance of Missouri cases construing the law of post-conviction relief. In 1968, the year following the adoption of the amended rule, the number of reported appellate opinions was 20; in 1969 the number was 54. Last year (1977) the number of rule 27.26 appeals reported was 96.

There are, no doubt, many reasons for this high volume of appellate cases. First and foremost, appeal from the denial of a motion to vacate sentence or judgment under rule 27.26 is guaranteed as a matter of right, with costs and counsel for indigent prisoners provided by the state. Rule 27.26(j), (k) and (L ). But a second reason for the volume, we can now ascertain, has been our own disinclination to address the numerous interstitial aspects of rule 27.26 procedures in a comprehensive and unified fashion. We have rather relied upon traditional discrete case-by-case adjudication in the belief that the structure of the rule itself together with the policy and attitude for which it stands would yield concise and comprehensible procedural guidelines. This has not been the case. In one exception to that approach, the court in Smith v. State, 513 S.W.2d 407 (Mo. banc 1974), Cert. denied, 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975), set forth two procedural guidelines to which petitioners and lower courts have been held since its promulgation. The first stated that "(a) 27.26 movant, in order to be entitled to an evidentiary hearing, must plead facts, not conclusions, which, if true, would entitle him to relief and must show that such factual allegations are not refuted by . . . (the record)." Id. at 411. The other guidelines concerned the need for findings of fact and conclusions of law by the trial court following a motion to vacate sentence or judgment under rule 27.26(i). There this court said that a trial court's sustaining of the state's motion to dismiss the 27.26 motion "was equivalent to findings and conclusions in accordance with the grounds . . . set out in that motion (to dismiss)." Id. at 412.

By this ruling the majority in Smith sought, no doubt, to expedite and bring to some conclusion the post-conviction procedure, a worthy goal. However, the resulting application of Smith and that of its progeny, e. g. Hogshooter v. State, 514 S.W.2d 109 (Mo.App.1974), have not, in our observation, had their intended effect. Rather, the requirements for lawyerlike pleadings for Pro se movants who are not permitted an appointed lawyer unless an evidentiary hearing is required, Loflin v. State, 492 S.W.2d 770, 772-73 (Mo. banc 1973); Winston v. State, 533 S.W.2d 709, 715 (Mo.App.1976), and the failure to require specific findings of fact and conclusions of law in each case as had been previously required, Hamilton v. State, 490 S.W.2d 363, 364 (Mo.1973); Veneri v. State, 474 S.W.2d 833, 841 (Mo.1971); Durham v. State, 473 S.W.2d 397, 398 (Mo.1971); Larson v. State, 437 S.W.2d 67, 69 (Mo.1969); Drew v. State, 436 S.W.2d 727, 730 (Mo.1969); Gerberding v. State, 433 S.W.2d 820, 824 (Mo.1968); Forbes v. State, 511 S.W.2d 894, 895-96 (Mo.App.1974), have had an...