Flowers v. State, 62310

• Citation: 618 S.W.2d 655
• Decision Date: 14 July 1981
• Docket Number: No. 62310,62310
• Parties: James Edmond FLOWERS, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 655

618 S.W.2d 655

James Edmond FLOWERS, Appellant, v. STATE of Missouri, Respondent.

No. 62310.

Supreme Court of Missouri, En Banc.

July 14, 1981.

W. H. Winchester, III, Sikeston, for appellant.

John Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for respondent.

SEILER, Judge.

In 1976 appellant Flowers pleaded guilty to a charge of assault with intent to kill with malice aforethought under § 559.180, RSMo 1969 and was sentenced to a term of twenty years. Later in 1976 Flowers filed two pro se motions, which were consolidated by the trial court and treated as a motion to vacate under rule 27.26. We will refer to this as the 1976 motion. These motions alleged police beatings, refusal to allow a telephone call or access to doctor or lawyer, and failure of appointed counsel to consult with him prior to trial. After a hearing, these motions were overruled, December 2, 1976.

Flowers, pro se, filed a timely notice of appeal. He was given leave to proceed as a poor person and counsel was appointed to handle the appeal. However, nothing further was done on the appeal and in 1977 it was dismissed by the court of appeals, southern district.

In 1978, the trial court granted Flowers leave to file a successive motion under 27.26. We will refer to this as the 1978 motion. Among the grounds raised in this motion was the charge that prior counsel had failed to perfect the appeal from the denial of the 1976 motion. It is to this charge that we address ourselves. The 1978 motion was also denied by the trial court and the denial was affirmed on appeal by the court of appeals. We granted Flowers' application for transfer.

In Morris v. State, 603 S.W.2d 938 (Mo. banc 1980), this court discussed the different considerations involved in determining the issue of alleged ineffectiveness of counsel in proceedings before the appellate courts as contrasted to the case where counsel simply fails to perfect the appeal. The Morris case points out the unique vantage of the appellate court in the first situation, quoting from Hemphill v. State, 566 S.W.2d 200, 208 (Mo. banc 1978), that " 'It is there the briefs are presented, argument heard and the effect of the conduct of appellate counsel as it bears on the issue of " ineffective assistance" may best be determined.' " 603 S.W.2d at 940. In such cases, a motion to recall the mandate is appropriate.

However, where the claim is that counsel did not perfect the appeal, Morris points out that no special vantage resides in the appellate court, that "a question central to appellant's 27.26 claim remains unanswered on the face of the motion: whether appellant's counsel abandoned appellant on appeal or whether appellant indicated he did not wish to pursue the appeal?" Id. at 940. In such circumstances, jurisdiction lies in the trial court to hear and determine the 27.26 motion. An evidentiary hearing is required, which the trial court is best suited to handle.

Rule 27.26(d) forbids second or successive motions where the ground raised in the second motion was raised in the prior application or where it could have been raised in the prior motion. Neither stricture applies here. It was not possible for Flowers to have raised in his 1976 motion the ground that his lawyer would abandon him on the appeal therefrom. Permitting Flowers to have a determination of whether he should be permitted to proceed with his first and only appeal from the denial of his original 27.26 motion does not establish any unsound precedent or open the door to endless successive claims. Flowers is not asserting an absurd or patently meritless claim. It is undisputed that his appeal was dismissed and he blames it on the failure of his appointed counsel to proceed. Flowers is not attempting to raise in the 1978 motion now before us the same or essentially the same points as raised in his 1976 motion.

The judgment dismissing the 1978 motion is reversed and the cause is remanded to the trial court with directions to conduct an evidentiary hearing and to make findings of fact and conclusions of law on whether Flowers' counsel abandoned him on appeal from the denial of the 1976 motion or whether Flowers indicated he did not wish to pursue, or waived, the appeal. If the trial court finds the former, then the court should vacate the 1976 judgment and enter a new judgment therein, with the time for appeal commencing to run from the date thereof. If the trial court finds the latter, then the 1976 judgment should remain undisturbed and the court should enter judgment against Flowers in the present case.

RENDLEN and MORGAN, JJ., concur.

BARDGETT, J., concurs in separate concurring opinion filed.

WELLIVER and HIGGINS, JJ., concur and concur in separate concurring opinion of BARDGETT, J.

DONNELLY, C. J., dissents in separate dissenting opinion filed.

BARDGETT, Judge, concurring.

I concur in the principal opinion; however, I do not want to be understood as rejecting consideration of the proposed rule set out in the dissenting opinion of Donnelly, C. J. I will certainly give consideration to that proposal in due course.

DONNELLY, Chief Justice, dissenting.

I respectfully dissent.

The question in this case is whether the holding of Morris v. State, 603 S.W.2d 938 (Mo. banc 1980), should be extended to a situation, as here, where movant complains that his attorney did not perfect his appeal from denial of a prior 27.26 motion. I think not. To borrow from Judge Wasserstrom in Williams v. State, 507 S.W.2d 664, 666 (Mo.App.1974):

"Were a prisoner permitted to challenge the effectiveness of his legal counsel at the first 27.26 hearing by means of filing a second 27.26, then he could likewise challenge his representation at the second hearing by filing a third 27.26, and so on ad infinitum. That patent absurdity would intolerably clutter the courts and would reduce the whole legal process to ridicule."

See also McCormick v. State, 502 S.W.2d 324 (Mo.1973); Huffman v. State, 487 S.W.2d 549 (Mo.1972); and Crosswhite v. State, 438 S.W.2d 11 (Mo.1969).

Further, I submit the following observations with respect to the topic of post-conviction relief:

In 1963, the United States Supreme Court evidenced its view that state court judges could not be trusted to protect the rights given the people of their states by the Constitution of the United States. See Townsend v. Sain, 372 U.S. 293, 312, 318, 83 S.Ct. 745, 756-57, 760, 9 L.Ed.2d 770 (1963).

In 1964, Judge Hollingsworth of this Court sought to make our Rule 27.26 (as it then existed) effectual by requiring evidentiary hearings on motions to vacate sentences. See State v. Pickel, 376 S.W.2d 181 (Mo.1964), and State v. Herron, 376 S.W.2d 192 (Mo.1964).

In 1966, the Pickel-Herron requirement of an evidentiary hearing was reasserted. See State v. Gee, 408 S.W.2d 1 (Mo.1966).

In 1967, this Court promulgated its present comprehensive Rule 27.26 in an attempt to preserve "the delicate balance of federalism so foremost in the minds of the Founding Fathers and so uniquely important in the field of law enforcement." Fay v. Noia, 372 U.S. 391, 445, 83 S.Ct. 822, 852, 9 L.Ed.2d 837 (1963) (Clark, J., dissenting). The attempt proved to be an exercise in futility. See State v. Brizendine, 445 S.W.2d 827 (Mo. banc 1969).

Finally, in 1979, the coup de grace was delivered the United States Supreme Court rejected the presumption that trial jurors will act rationally and held "that in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 if the settled procedural prerequisites for such a claim have otherwise been satisfied the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." (Emphasis mine). Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2792, 61 L.Ed.2d 560, reh. den., 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979).

On the effective date of Jackson, supra, our Rule 27.26 insofar as it affected the proscriptions of the Constitution of the United States, ceased to serve a useful purpose; and, to that extent, rendered unconscionable the burden it placed on Missouri lawyers.

And, inevitably, on February 8, 1981, in a speech to an American Bar Association meeting in Houston, Texas, the Chief Justice of the United States declared that "crime has permeated the fabric of American life," and deplored the lack of finality in criminal prosecutions.

Of course, a person restrained of his liberty within Missouri in violation of the Constitution of the United States or the Constitution of Missouri may prosecute a writ of habeas corpus. See Rule 91. Further, a claim that a judgment of conviction was entered by a trial court in violation of the Constitution of the United States or the Constitution of Missouri must be entertained and determined in Missouri appellate courts on direct appeal.

However, a post-conviction remedy (such as Rule 27.26), which would give the "right to collaterally attack a final judgment of conviction," is not mandated by the Constitution of the United States. United States v. MacCollom, 426 U.S. 317, 323, 96 S.Ct. 2086, 2090, 48 L.Ed.2d 666 (1976). In this situation in Missouri state courts, I would limit the assertion of violations of the Constitution of the United States to direct appeals and habeas corpus.

I would repeal Rule 27.26 and would promulgate a new Rule 27.26 and a new Rule 27.27:

27.26 JUDGMENT AND SENTENCE UNLAWFUL MOTION TO VACATE OR CORRECT NOTICE TO DEFENDANT OF AVAILABILITY FORM AND SCOPE OF MOTION NOTICE OF PROSECUTING ATTORNEY APPOINTMENT OF COUNSEL HEARING ORDER EFFECT OF ORDER APPEAL UNTIMELY AND SUCCESSIVE MOTIONS.

A defendant under sentence for a felony who claims the judgment and sentence imposed after trial violate the Constitution and Laws of this State, or that the court imposing such sentence was without jurisdiction to do so, or that...