Grove v. State

• Decision Date: 19 June 1989
• Docket Number: No. 15988,15988
• Citation: 772 S.W.2d 390
• Parties: Larry Dean GROVE, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 390

772 S.W.2d 390

Larry Dean GROVE, Appellant, v. STATE of Missouri, Respondent.

No. 15988.

Missouri Court of Appeals,

Southern District,

Division One.

June 19, 1989.

John A. Klosterman, Columbia, for appellant.

William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Presiding Judge.

On June 12, 1987, appellant Larry Dean Grove appeared with counsel in circuit court on an information charging him with two counts of sodomy, § 566.060, ¹ and one count of sexual abuse in the first degree, § 566.100. Pursuant to a plea agreement, appellant entered a plea of guilty to one count of sodomy. The agreement provided that the prosecutor would (a) dismiss the other count of sodomy and the count of sexual abuse, (b) recommend imprisonment of not less than 10 years nor more than 15 years, (c) oppose probation, and (d) agree that appellant, who was then incarcerated for failure to post bond, could be released on his own recognizance in order to allow him to obtain a psychological evaluation prior to sentencing if he chose to do so.

In accepting the plea of guilty the circuit court, henceforth referred to as "the plea court," conducted an extensive hearing, ordered a presentence investigation, deferred sentencing pending receipt of the presentence investigation report, and released appellant on his own recognizance.

On September 11, 1987, appellant reappeared with counsel in the plea court, which imposed a sentence on appellant of 12 years' imprisonment and denied probation. The prosecutor dismissed the two agreed counts.

On June 22, 1988, appellant filed a pro se motion per Rule 24.035, Missouri Rules of Criminal Procedure (19th ed.1988), to vacate his conviction and sentence. Counsel was appointed for appellant and a deadline was set for filing an amended motion. See: Rule 24.035(e) and (f). The deadline passed without an amended motion being filed.

On October 11, 1988, the circuit court, henceforth referred as "the motion court," entered an order denying appellant's motion without an evidentiary hearing. Appellant brings this appeal from that order.

The first of appellant's four points relied on avers that the motion court erred in denying relief without an evidentiary hearing in that the lawyer appointed by the motion court to represent appellant, henceforth referred to as "motion counsel," did not comply with Rule 24.035(e), as motion counsel had a duty to ascertain from appellant whether all grounds known as a basis of attack on the conviction and sufficient facts supporting those grounds were included in the motion, and a concomitant duty to file an amended motion including any additional grounds and supporting facts. ² Appellant complains that motion counsel failed to amend the motion to present all of appellant's claims in lawyerlike fashion, thus denying appellant meaningful post-conviction review of the effectiveness of the lawyer who represented appellant in the plea court, henceforth referred to as "plea counsel."

Appellant's motion presented three grounds for relief. The first was that the sentence was excessive in that appellant had "[no] prior offense" and no tendency toward deliberately causing harm to another person, was allowed no "jail time" credit at sentencing, had experienced stress and confusion which led him to admit himself to a hospital for treatment, and was released from jail on his own recognizance. The second ground was that appellant had received ineffective assistance of counsel in the plea court in that (1) the first public defender who represented appellant "dropped" the case without notification, (2) the second public defender who represented appellant failed to show consistent interest in the task, and (3) plea counsel--retained by appellant--made no effort to apply "federal law" concerning appellant's right to a speedy trial; made no effort to obtain documents and evidence (allegedly withheld by a prosecution witness) which were important to appellant's defense, causing additional pressure on appellant to accept the plea bargain; promised probation if appellant would plead guilty, saying if appellant did not his bond would be made so high he would never get out; instructed appellant to testify he had no physical or mental impairment although medical records show "heavy evidence to the contrary"; bargained for five to seven more years than appellant's public defender had previously said the prosecutor had agreed upon; denied in court that appellant desired to change his guilty plea without consulting appellant; did not contest the presentence investigation report even though appellant and his wife had pointed out "numerous errors and discrepancies"; and assured "us" that with a 12-year sentence appellant would be eligible for parole in 2 years and 4 months, which is untrue. The third ground was that appellant had ill health in numerous respects, causing, among other things, "severe confusion," "complications in decision making," "disorientation and blacking-out," and "loss of memory & concentration."

The motion court, in its order denying relief, stated it had considered the transcript of the guilty plea proceeding. The order included the following:

"The Court finds and believes that Movant's sentence was in accordance with a plea agreement freely entered into between the State of Missouri and the Movant and that there has been no violation of the plea agreement. The Court further finds that the sentencing Judge accepted the plea of guilty and that the plea of guilty was made freely, voluntarily, and intelligently, and with a full understanding of the charge, the rights to trial including jury trial and the consequences of pleading guilty. The Court finds that the Defendant related facts under oath to the sentencing Judge which entitled the Judge to believe and to find that Defendant was guilty beyond a reasonable doubt.

The Court further finds that the allegations contained in the written motion filed herein which are specific in nature and not merely conclusionary [sic] or [sic] refuted by the documents examined by the Court."

Appellant, in arguing his first point, cites four cases in support of his premise that motion counsel's failure to file an amended motion necessitates reversal: Fields v. State, 572 S.W.2d 477 (Mo. banc 1978); Woolsey v. State, 738 S.W.2d 483 (Mo.App.1987); Jones v. State, 702 S.W.2d 557 (Mo.App.1985); and McAlester v. State, 658 S.W.2d 90 (Mo.App.1983). Appellant maintains the case should be remanded to the motion court with instructions that new counsel be appointed to amend the motion in compliance with Rule 24.035.

We do not read Fields as holding that reversal of a circuit court's order denying relief in a post-conviction proceeding is automatically required when counsel appointed to represent the prisoner fails to file an amended motion. In Fields, a proceeding under former Rule 27.26 (now repealed), the circuit court denied relief without an evidentiary hearing and without appointing counsel for the prisoner. The Supreme Court of Missouri reversed and remanded, holding that circuit courts must appoint counsel for all indigent prisoners in such proceedings, and that counsel, after sufficient communication with the prisoner, will be obliged to amend the prisoner's motion to state factually in lawyerlike fashion the basis for all grounds for relief which the prisoner claims to have. 572 S.W.2d at 483. The Supreme Court in Fields was not confronted by a situation wherein appointed counsel, after an adequate opportunity to communicate with the prisoner, failed to amend the motion.

Such circumstances did arise, however, in Woolsey, 738 S.W.2d 483. There relief was denied by the circuit court after an evidentiary hearing. On appeal the prisoner maintained he was improperly denied relief due to his appointed lawyer's failure to ascertain whether all grounds for relief were included in the prisoner's pro se motion and, if they were not, to file an amended motion presenting the additional grounds. The Western District of this Court rejected the prisoner's claim that reversal was required, holding that counsel was not automatically required to file an amended motion in every Rule 27.26 action. Id. at 485. Amendment is required where the pro se motion either fails to raise all known grounds for relief or fails to fully and accurately allege the grounds raised. Id. The opinion in Woolsey noted the prisoner made only a bare allegation on appeal that relief was improperly denied due to counsel's failure to file an amended motion; the prisoner did not claim there were any additional grounds or supporting facts that could have been, but were not, presented on his behalf. Id. at 485. The effect of the prisoner's allegation, said the opinion, was simply to assert that, absent an amended motion, he is entitled to a second opportunity to present his claims. Id. The opinion added that it was not the appellate court's intention to entertain what are in essence claims of ineffective assistance of 27.26 counsel, as such claims are not generally cognizable either on direct appeal or in a subsequent 27.26 proceeding. Id.

In Jones, 702 S.W.2d 557, a prisoner's pro se motion under Rule 27.26 was dismissed by the circuit court without an evidentiary hearing. The appellate court, noting that the record did not show the prisoner's appointed counsel ever interviewed the prisoner or ascertained whether the pro se motion stated all known grounds for relief, and that the circuit court failed to make specific findings of fact and conclusions of law on all issues, reversed and remanded with directions that the prisoner be given the opportunity to amend his motion with the aid of counsel, and that the circuit court consider the matter anew, entering the required findings of fact and conclusions of law.

In McAlester, 658 S.W.2d 90, the final case relied on by appellant in support of his first point, the lawyer...