Futrell v. State

• Citation: 667 S.W.2d 404
• Decision Date: 20 March 1984
• Docket Number: No. 64385,64385
• Parties: Edgar Vernell FUTRELL, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 404

667 S.W.2d 404

Edgar Vernell FUTRELL, Appellant, v. STATE of Missouri, Respondent.

No. 64385.

Supreme Court of Missouri,

En Banc.

March 20, 1984.

L. Steven Goldblatt, St. Louis, for appellant.

John Ashcroft, Atty. Gen., Rosalynn Van Heest, Asst. Atty. Gen., Jefferson City, for respondent.

RENDLEN, Chief Justice.

Appeal from dismissal of second Rule 27.26 motion without an evidentiary hearing. Movant's challenge to the validity of § 556.280, RSMo 1969, brings the cause within this Court's exclusive appellate jurisdiction. Mo. Const., Art. V, § 3.

In February, 1977, movant Edgar Futrell was convicted of robbery first degree, two counts, and sentenced under the second offender statute to concurrent terms of 45 years on each count. His conviction was affirmed by the Missouri Court of Appeals in State v. Futrell, 565 S.W.2d 465 (Mo.App.1978).

On September 26, 1979, movant filed a motion [first motion] under Rule 27.26 to set aside judgment and sentence, citing exclusion of women from his jury, bias of the trial judge, failure of the trial judge to give an alibi instruction and ineffective assistance of counsel. After appointment of counsel and an evidentiary hearing, the motion was denied on April 10, 1980 and no appeal was taken.

Following an unsuccessful petition for habeas corpus in federal court, movant, again represented by counsel, returned to state court on May 26, 1982 with a second 27.26 motion [second motion] and the following claims:

Movant was sentenced under the Persistent Offenders Statute, Section 556.280, RSMo 1969 ¹ which is unconstitutional for the following reasons:

a) Section 556.280, RSMo.1969 as applied to Mr. Futrell, violates the Fifth Amendment to the United States Constitution.

b) Section 556.280 RSMo.1969 on its face and as applied to Mr. Futrell violates the Sixth Amendment to the United States Constitution.

c) Section 556.280 RSMo.1969 on its face and as applied to Mr. Futrell, violates the Eighth Amendment to the United States Constitution.

d) Section 556.280 RSMo.1969 on its face and as applied to Mr. Futrell, violates the Fourteenth Amendment to the United States Constitution.

e) Police investigative techniques employed against Mr. Futrell were suggestive, unreliable and violative of due process.

After hearing arguments, the trial court issued extensive findings and dismissed the motion without an evidentiary hearing. In its order of dismissal, the court concluded:

... each and every issue in movant's second motion could have been brought in the first motion, and, separately, that movant did not allege sufficient facts to show that the complained-of statute was unconstitutional as applied to him or that the statute was unconstitutional on its face, and further movant has not shown sufficient facts to identify which police procedures were invalid or wherein that movant's rights were violated.

Movant appeals, contending invalidity of § 556.280 could not have been raised in his earlier motion and dismissal without an evidentiary hearing denied him discovery of facts essential to make a prima facie case of discriminatory sentencing. Our review is limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous Rule 27.26(j). We affirm.

Rule 27.26(c) requires that a motion filed under the Rule include every ground known to the movant for vacating, setting aside or correcting his conviction and sentence and requires each movant to verify that he has recited all claims known to him. Paragraph (d) prohibits the sentencing court from entertaining a second motion for relief when the ground presented is new but could have been raised in the prior motion and places the burden on movant to establish that any new ground raised in the second motion could not have been raised in the prior motion. To sustain this burden, movant contends there are new constitutional principles that could not have been known to him at the time of his first motion and cites Vaughan v. State, 614 S.W.2d 718 (Mo.App.1981), and Bonner v. State, 595 S.W.2d 393 (Mo.App.1980), as authorizing our consideration of new arguments based on these principles.

Vaughan v. State, 614 S.W.2d 718 (Mo.App.1981), is an appeal from denial of a second 27.26 motion in which the Court of Appeals opined, "If there are new facts or new constitutional principles which could not have been known to the petitioner at the time of the first motion, the court will not foreclose a second motion based on these new grounds." Id. at 720. (Emphasis added.) That portion of the court's statement regarding new constitutional principles was dictum, however, as consideration of movant's second motion was premised on the existence of facts unknown to petitioner at the time of his first motion. In Bonner v. State, 595 S.W.2d 393 (Mo.App.1980), the Court of Appeals entertained a second motion on the basis of an intervening ruling in State v. Baker, 524 S.W.2d 122 (Mo. banc 1975), that the consecutive sentencing statute which allegedly induced movants' guilty pleas was unconstitutional. "Thus," it was concluded, "the ground alleged in movants' present post-conviction motions was not available when their prior motions were filed, did not become available until after the motions were denied, and the sentencing court properly entertained these second post-conviction motions." 595 S.W.2d at 394. Bonner, however, is distinguishable from this case in two important respects: the newly available constitutional principle raised in Bonner was binding on the court considering movants' motions, and the new ground arose from an express and retroactive overruling of the law in effect when movants' first motions were filed: State v. Baker, 524 S.W.2d 122, 131 (Mo. banc 1975), (overruling King v. Swenson, 423 S.W.2d 699, 706 (Mo. banc 1968)). Such is not the case here.

In this case, movant claims § 556.280, RSMo 1969, deprived him of due process rights to be heard and have adequate findings made on the matter of sentence enhancement. ² To justify earlier failure to object on this ground, movant asserts the supporting constitutional argument was not apparent until the Eighth Circuit Court of Appeals announced its decision in Britton v. Rogers, 631 F.2d 572 (8th Cir., 1980), six months after denial of his first motion. Britton v. Rogers, movant apparently argues, was the first case in which a federal court used the Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), balancing test to assess the adequacy of criminal sentencing procedures. ³ Even if this is so, we are not persuaded that the principles announced in Rogers are new, are of sufficient magnitude to entitle him to a successive Rule 27.26 motion, or were unavailable at the time of his first motion.

Britton v. Rogers, 631 F.2d 572 (8th Cir.1980), involved a claim that Arkansas' standardless non-capital sentencing scheme violated petitioner's right to due process of law. In addressing this issue, the federal Court of Appeals first turned to Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), an action challenging the constitutional validity of certain administrative procedures established by the Secretary of Health, Education and Welfare, for a useful specification of factors to be considered in any case raising procedural due process questions:

First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that additional or substitute procedural requirements will entail.

Britton v. Rogers, 631 F.2d at 579-80 (quoting Mathews v. Eldridge, 424 U.S. at 335, 96 S.Ct. at 903).

Noting that Eldridge was developed for the administrative context and "has not yet been expressly employed by a federal court to test the procedures used at criminal trial," the Rogers court added:

In extending Eldridge to the criminal context, however, we wish to preserve the deference which federal courts have customarily displayed when called upon to review state rules of criminal procedure.... Accordingly, we are unwilling to find a procedural due process violation under Eldridge unless the private interest in obtaining a particular procedure substantially outweighs the governmental interest in withholding it.

631 F.2d at 580. In Rogers, as in Eldridge, the court concluded that additional process was not constitutionally due.

Although Rogers may be the first case in which Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), was expressly employed by a federal court to test the adequacy of criminal trial procedures, we are unconvinced the case announces any new constitutional principle. Movant does not argue and we cannot find that the defendant's interest, risk of an erroneous deprivation of that interest through the procedures used, the probable value of additional or substitute procedures and the government's interest are considerations theretofore foreign to evaluation of criminal due process claims. Nowhere in Rogers, moreover, does the Eighth Circuit Court of Appeals purport to announce a new constitutional principle, and its holding breaks no new ground.

Even if principles announced in Rogers could be characterized as "new," however we are not convinced they rise to a level that would entitle movant to a successive Rule 27.26 motion. While unquestionably meriting respect, rulings of the Eighth Circuit Court of Appeals are not generally binding on Missouri state courts, Kraus v. Board of Education, 492 S.W.2d 783, 784 (Mo.1973); see also Hanch v. K.F.C. National Management Corp., 615 S.W.2d 28, 33 (Mo. banc 1981), and the trial court's evaluation of movant's claim would be independent of Britton v....