Fisk v. State, 35366
| Decision Date | 27 August 1974 |
| Docket Number | No. 35366,35366 |
| Citation | 515 S.W.2d 865 |
| Parties | Jack Laverne FISK, Appellant, v. STATE of Missouri, Respondent. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Joseph Warzycki, Asst. Public Defender, St. Louis, for appellant.
John C. Danforth, Atty. Gen., G. Michael O'Neal, Jefferson City, Brendan Ryan, Circuit Atty., John J. Mohan, Jr., St. Louis, for respondent.
On March 20, 1972, appellant (hereinafter referred to as the defendant) entered a plea of guilty to a charge of murder in the second degree. Sentencing was deferred until May 5, 1972, for a presentence investigation and report. On May 12, 1972, he was sentenced to imprisonment for a period of ten years in the custody of the Missouri Department of Corrections. Thereafter on April 4, 1973, defendant filed a motion to vacate or set aside the conviction and sentence pursuant to Rule 27.26, V.A.M.R. 1 On April 24, 1973, the judge of the trial court, without affording the defendant an evidentiary hearing on his post-conviction motion, filed a memorandum opinion including findings of fact and conclusions of law and denied defendant's motion. A timely notice of appeal was filed from this adverse ruling.
On appeal, the sole issue presented is whether the trial court erred in denying defendant's motion for post-conviction relief without an evidentiary hearing. We conclude that the trial court did not so err and therefore affirm.
A movant who seeks to withdraw his guilty plea and have his conviction and sentencing set aside pursuant to a Rule 27.26 proceeding is entitled to an evidentiary hearing unless his motion fails to allege facts sufficient to state a ground for relief, State v. Miner, 498 S.W.2d 814 (Mo.App.1973), or unless the record conclusively shows that he is not entitled to relief. Rule 27.26(e), Loflin v. State, 492 S.W.2d 770 (Mo.banc 1973), Colbert v. State, 486 S.W.2d 219 (Mo.1972).
A motion of this kind is an independent civil action governed by the Rules of Civil Procedure insofar as applicable. Rule 27.26(a). It is to be submitted on a form substantially in compliance with a form appended to the Rule and shall include every ground known to the prisoner for vacating, setting aside or correcting his conviction or sentence. Rule 27.26(c). Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, he shall be afforded a prompt evidentiary hearing thereon. Rule 27.26(e).
The defendant, in paragraph 8 of his motion, alleged the following grounds for relief:
The motion thereafter continued with 'Argument in Support' of the aforementioned allegations, and a number of citations in support of said argument.
The trial court, having before it the defendant's motion, the transcript of the plea proceedings, the indictment and the contents of the court file in the plea proceedings, made certain findings of fact and conclusions of law which it incorporated into its memorandum opinion denying defendant's motion for post-conviction relief. The trial court found that Walter L. Brady, an attorney, entered his appearance on behalf of defendant; that the defendant was charged by indictment with murder in the second degree and also pleaded in said indictment was an allegation that defendant had been previously convicted of a felony, to-wit: burglary and larceny; that on March 20, 1972, the defendant appeared in Division 16 of the City Circuit Court with his attorney, Daniel R. Devereaux, pleaded guilty to the charge of murder in the second degree, and the plea was accepted by the Court; that on May 12, 1972, after the Court had received a presentence investigation report, the Court imposed sentence; that the plea was knowingly, intelligently and voluntarily entered and made and that none of defendant's constitutional rights were violated; that defendant was represented by employed counsel and he could not therefore complain of the conduct of said counsel 'absent wilful misconduct amounting to a breach of the attorney-client responsibility;' that the motion was vague, pleaded conclusions and self-serving statements, whereas it must allege facts sufficient to state a claim in order to entitle defendant to a hearing on the issues raised therein; that the burden of proof is on the defendant to establish grounds for relief by a preponderance of the evidence and that manifest injustice resulted from the acceptance of his guilty plea. The trial court then concluded that a review of the transcript of the proceedings, in view of the defendant's age, education, intelligence and experience, caused the trial court to conclude that he was not entitled to the relief sought and that an evidentiary hearing was not required. The motion was thereby overruled.
We are here dealing with a Rule 27.26 proceeding at the pleading stage. The trial court was merely at the threshold and had not as yet arrived at the hearing stage. In determining whether defendant is entitled to an evidentiary hearing we hold that he is unless (1) his motion fails to allege facts sufficient to state a ground for relief or (2) the record conclusively shows that he is not entitled to the relief he seeks.
We conclude that the trial court was correct in holding that the defendant was not entitled to an evidentiary hearing because the record of the plea proceeding together with the allegations contained in his motion conclusively show that he is not entitled to the relief he seeks. We need not then determine whether his motion fails to allege facts sufficient to state a ground for relief.
Each of the grounds stated in his motion relate to compliance with Rule 25.04 which, on the issues presented in the appeal, requires that no judge may accept a guilty plea without first determining that the plea is made voluntarily and with an understanding of the nature of the charge.
The transcript of the plea proceedings on March 20, 1972, conclusively demonstrates that the defendant acknowledged that the attorney there present was his attorney and authorized to enter a plea of guilty to the charge of murder in the second degree on his behalf. The Assistant Circuit Attorney recited the facts from the State's point of view, after which the defendant essentially corroborated the statement of the Assistant Circuit Attorney. The only other factors he added were that the victim was approaching him with something in his hand--what he did not know; that he was fearful that the victim was coming towards him in an effort to hurt him; and at the time he shot the victim the victim was 2 or 3 cars distant from him. The trial court determined the age of the defendant, his marital status, family, employment and education; that he had discussed his plea with his attorney and with his family and understood that if he pleaded guilty he relinquished his right to a jury trial, cross-examination of the witnesses against him by his attorney, presentation of...
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