Flowers v. State
| Decision Date | 07 April 1982 |
| Docket Number | No. 12528,12528 |
| Citation | 632 S.W.2d 307 |
| Parties | James Edmond FLOWERS, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Scott E. Walter, Public Defender, Benton, for movant-appellant.
John D. Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, for respondent.
Post-conviction motion to vacate 20-year prison sentence entered in 1976 upon movant James Edmond Flowers' plea of guilty to assault with intent to kill with malice aforethought (§ 559.180, RSMo 1969). We affirm.
Movant and his brother, Bernie Dean Flowers, were jointly charged in New Madrid County with shooting Trooper Herbert A. Campbell of the Missouri State Highway Patrol in July, 1975. The brothers were being sought by Southeast Missouri law enforcement officers for committing an armed robbery in Pemiscot County 1 and Trooper Campbell had stationed himself on the Missouri side of the Mississippi River at the Tiptonville ferry landing. The brothers arrived in a taxicab and Trooper Campbell placed them under arrest. In the process of the officer's attempting to search and handcuff the two men, the movant pulled a .41 caliber pistol from his belt and shot the trooper in his stomach and shoulder. A deckhand on the ferry armed himself with a pistol and went to the aid of the wounded officer and held the pair at gunpoint until other officers arrived and took them into custody. 2
The brothers were charged in New Madrid County with the shooting of Trooper Campbell. Attorney Charles C. Hatley of New Madrid was appointed to represent the two men and after a preliminary hearing was conducted, they were ordered held for circuit court. After the information was filed in New Madrid County Circuit Court, they were transported to State Hospital No. 4 at Fulton for mental examinations. They were returned to New Madrid and formally arraigned in circuit court by the Honorable William L. Ragland. The two defendants entered pleas of not guilty and their case was set for trial approximately six weeks later. Shortly after their arraignment, the defendants were granted a change of venue and change of judge to the Circuit Court of Mississippi County before the Honorable Marshall Craig.
On January 13, 1976, movant, his brother, Attorney Hatley, and the prosecuting attorney of New Madrid County appeared before Judge Craig. The defendants were again formally arraigned and advised the court they desired to enter pleas of guilty to the charge. Before accepting the proposed pleas, the learned and experienced trial judge carefully and meticulously interrogated the brothers at great length concerning the voluntary nature of their pleas, as well as explaining in minute detail their various rights under the law, and the consequences of their guilty pleas. In accepting their pleas, Judge Craig made the following finding:
"The Court finds that the defendants have voluntarily entered their plea of guilty; they have done so understandingly with knowledge of the consequences, and that their plea is not made out of fear, ignorance, coercion or inadvertence, and the defendants admit the essential elements of the crime."
Movant was sentenced to a 20-year prison term and his younger brother sentenced to serve four years.
Approximately two months later movant filed a motion to vacate his sentence. As grounds for relief he alleged police brutality by troopers of Missouri State Highway Patrol Troop E, cruel and unusual punishment and treatment by New Madrid and Pemiscot sheriffs and deputy sheriffs and that he was denied all of his constitutional rights while he was incarcerated in the two jails. Facts alleged in support of the grounds were that he was badly beaten and told he was going to be killed after he was arrested; that for 14 days in the Pemiscot County jail he had no mattress or blankets to sleep on and was denied soap, showers, clean clothes, visits, and medical attention; further, that his constitutional rights were violated when he could not see a doctor, make a telephone call, or have a lawyer present during questioning.
Attorney Hatley was appointed to represent movant in his post-conviction proceeding. Thereafter, movant filed another motion to vacate his sentence, alleging neglect of duty by his attorney and Judge Craig in failing to reply to his correspondence concerning his original motion to vacate his sentence; that the punishment for his offense was limited to not more than five years imprisonment; and, that his attorney at "trial" was incompetent because the attorney did not see or get in touch with movant in the six month period between the attorney's appointment and movant's "trial"; further, that more than 90 days had passed without a setting by the trial court of his first motion to vacate sentence.
Judge Craig set movant's motions for hearing for November 17, 1976, and appointed Attorney John Hopkins of Charleston as co-counsel for movant. The State filed a motion to dismiss the proceedings, averring movant had not set forth grounds entitling him to post-conviction relief.
At the hearing, both Attorneys Hatley and Hopkins appeared on behalf of movant. Judge Craig indicated he would consider movant's second motion to vacate his sentence as an amendment to his earlier motion. The State introduced the original court file and a transcript of the sentencing in support of its motion to dismiss. Judge Craig took the matter under advisement, together with Attorney Hatley's request that movant be granted an evidentiary hearing on his various allegations.
On December 2, 1976, Judge Craig entered an order dismissing the proceeding. His written findings of fact and conclusions of law, in part, are as follows:
On December 28, 1976, movant filed with the clerk of the Circuit Court of Mississippi County the following: notice of appeal, application to appeal as a poor person, request for appointment of counsel and for a free transcript. On January 5, 1977, Judge Craig sustained movant's application and appointed Attorneys Hatley and Hopkins to represent him on appeal.
Movant's appeal was docketed in this Court as No. 10583 on January 8, 1977. No further steps to perfect the appeal were taken and after the case was placed on our dismissal docket and movant duly notified, his appeal was dismissed August 4, 1977.
On March 25, 1978, movant filed in the Circuit Court of Mississippi County "Petition For Leave To File An Successive Motion Under Rule 27.26," together with "Motion to Withdraw Guilty Plea, To Vacate, And Set Aside Judgment, And Sentence, Or Correct Sentence To Read 5 Years."
On March 30, 1978, the court granted movant leave to file his successive motion and appointed Attorney Michael O'Rourke to represent him. Grounds alleged in the motion were: his guilty plea was not intelligently and voluntarily made because of threats, coercion, promises, misadvice, and mistreatment while jailed; ineffective assistance of counsel because his attorney neglected or refused to investigate the facts and was biased and prejudiced against movant, and, his attorney was coerced by the prosecutor or conspired with the prosecutor to secure his conviction and deny him effective assistance of counsel; the court failed to comply with the law governing the acceptance of guilty pleas and the court was without jurisdiction to accept his guilty plea because he had not been afforded a preliminary hearing on the crime he was sentenced for by the court.
On December 20, 1978, the trial court overruled and dismissed the successive motion,...
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...relief, the motion for post-conviction relief may and should be denied without an evidentiary hearing. Rule 29.15(g); Flowers v. State, 632 S.W.2d 307, 313-14 (Mo.App.1982). The judgment denying post-conviction relief is FLANIGAN, P.J., and MAUS, J., concur. 1 Peterson was subpoenaed by the......
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...motion and records of a case show that the Movant is not entitled to relief, no evidentiry [sic] hearing is necessary; Flowers v. State, 632 S.W.2d 307 (Mo.App.1982). C. Now, therefore, the Court finds that Movant ... has waived his right to relief under Rule 27.26 and that an evidentiary h......
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