Hayes v. State, 15439

Decision Date29 July 1988
Docket NumberNo. 15439,15439
Citation755 S.W.2d 425
PartiesTimothy HAYES, Appellant, v. STATE of Missouri, Respondent.
CourtMissouri Court of Appeals

Lew Kollias, Columbia, for appellant.

William L. Webster, Atty. Gen., Christopher M. Kehr, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Presiding Judge.

Timothy Hayes ("movant") appeals from a judgment denying his motion under Rule 27.26 1 to vacate his conviction, per jury trial, of murder in the second degree, § 565.004, RSMo 1978, 2 and 10-year prison sentence. In denying movant's motion, the circuit court (henceforth referred to as "the motion court") conducted no evidentiary hearing but did enter findings of fact and conclusions of law. Movant briefs one assignment of error, consideration of which requires a procedural history.

The verdict was returned July 29, 1982. That same date the trial court fixed August 23, 1982, as the deadline for filing "[a]fter trial motions." On August 2, 1982, four days after the verdict, movant, accompanied by his attorney, appeared in the trial court. The trial court's docket sheet bears an entry that date providing, in pertinent part:

"Deft questioned under oath and waives right for new trial. Deft. waives right to Appeal. Deft waives right to Pre-sentence Investigation. Allocution granted. It is the judgment and sentence of the Court that Deft be committed to the Missouri Division of Corrections for a period of 10 years."

A formal judgment was entered by the trial court the same day.

Movant's motion to vacate was filed pro se September 3, 1986. It alleged that the attorney who represented movant in the trial court had rendered ineffective assistance in several respects. That attorney is henceforth referred to as "defense counsel." Only two of movant's averments of ineffective assistance need be recited in this opinion. They are:

"... CLAIM I:

Movant's defense [counsel] ... was ineffective for failure to object to, or move for the suppression of the out-of-court statement given by his co-defendant, Mildred Ann Simon, implicating movant as being the actual killer.... [M]ovant would state that the confession that his co-defendant gave the police officers was inadmissible ... under [certain provisions of chapter 211, RSMo] in that movant's co-defendant did not make a knowing, voluntary and intelligent waiver of her right to remain silent and to counsel; said statement was elicit [sic] in violation of [certain statutes, court rules, and appellate decisions]. Failure of movant's defense counsel to move for the suppression of co-defendant's out-of-court statements prejudice [sic] his defense, and as a result deprived movant of a fair trial.

GROUND II:

... movant's defense counsel ... was ineffective for failure to imform [sic] movant of his right to direct appeal, thereby denying movant access to the court and to proper petition the courts for redress of wrongs as described herein.... Movant's defense counsel failed to file a Notice of Appeal, and was therefore ineffective, in that he should have known of ... the ten day time period for filing such notice. Failure of movant's defense counsel to perfect an appeal, and to advise movant of his right to appeal, constitutes ineffective assistance of counsel, in that counsel abandoned movant's appeal."

An attorney was appointed by the motion court to represent movant in the 27.26 proceeding. We shall henceforth refer to such attorney as "motion counsel," 3 to distinguish him from defense counsel.

In connection with motion counsel's representation of movant, Rule 27.26(h) provided, in pertinent part:

"Counsel shall have the duty to ascertain from the prisoner the facts supporting the grounds asserted in the motion and if those facts are not sufficiently stated in the motion, counsel shall file an amended motion."

As explained in Fields v. State, 572 S.W.2d 477, 483 (Mo. banc 1978), counsel appointed for a prisoner in a 27.26 proceeding had the obligation, after sufficient communication with the prisoner, to amend a pro se motion to state factually in lawyerlike fashion the bases for all claims for relief the prisoner claimed to have. The amended motion could then properly serve the function of a pleading of the issues under Rule 27.26. Pool v. State, 634 S.W.2d 564, 566 (Mo.App.1982). No other practice was to be tolerated. Id.

Motion counsel, however, filed no amended motion, even though there appears to have been ample time for motion counsel to have done so. Whether the failure to file an amended motion was the result of a directive from movant to motion counsel is indeterminable from the record.

The motion court's findings of fact and conclusions of law contained the following:

"A. Findings of Fact.

....

2. On August 2, 1982, Movant appeared for sentencing in [the murder] case and, under oath and upon examination, waived his rights to new trial and appeal;

3. No appeal from that conviction was taken;

4. The current action was not filed until September 3, 1986.

B. Conclusions of Law.

1. A Movant for post conviction relief who has failed to pursue a direct appeal from a judgment of conviction, has waived all available constitutional rights; Elo v. State, 639 S.W.2d 644 (Mo.App.1982),

2. A motion for post conviction relief must be filed within a reasonable length of time; Miller v. State, 603 S.W.2d 29 (Mo.App.1980); ... Jackson v. State, 548 S.W.2d 624 (Mo.App.1977);

3. Where the 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. Judgment.

Now, therefore, the Court finds that Movant ... has waived his right to relief under Rule 27.26 and that an evidentiary hearing is not necessary...."

Movant's sole point on appeal asserts, in pertinent part:

"The [motion] court clearly erred in denying [movant's] ... motion without an evidentiary hearing because [the] motion pleaded facts not refuted by the record in support of his claims of ineffective assistance of counsel in that [movant]

A.

Asserted counsel did not fully explain [movant's] rights to a direct appeal of his conviction ... or the consequences of a waiver of appeal so a fact issue was raised regarding [movant] knowingly and intelligently waiving his constitutional rights to an appeal;

B.

Asserted counsel improperly failed to object to and preclude the admission of a co-defendant's extra-judicial statement which implicated [movant] as the victim's killer, and absent a hearing, it is impossible to determine if counsel could and should have successfully challenged the admission of this statement at trial or had strategic reasons for allowing its admission...."

The state responds that the allegations of movant's motion were insufficient to entitle him to an evidentiary hearing. Citing Frazier v. State, 738 S.W.2d 131, 133 (Mo.App.1987), the state emphasizes that to be entitled to an evidentiary hearing on the issue of ineffectiveness of counsel, a prisoner seeking post-conviction relief must plead facts, not conclusions, which if true would warrant relief; those facts must not be refuted by the record; and the matters complained of must have resulted in prejudice to the prisoner.

As to component "A" of movant's point on appeal the state argues that movant's motion contained no allegation that (1) his waiver of the right to appeal was "neither voluntary nor knowing," (2) he was pressured or coerced into waiving his right to appeal by means that violated his constitutional rights, (3) he would have taken an appeal had his attorney told him to, or (4) there were any grounds on which an appeal would have had merit and been successful. Consequently, says the state, there was no prejudice alleged and defense counsel cannot be branded ineffective for failing to tell movant to appeal where there would have been no successful claim of error.

As to component "B" of movant's point on appeal the state asserts that movant's motion contained no allegation regarding (1) the content of the codefendant's statement, or (2) how it prejudiced movant at trial. Furthermore, says the state, movant failed to allege how the statement was rendered inadmissible against him by the "statutes and rules dealing with juveniles."

The state, as we read its brief, makes no effort to justify the motion court's denial of relief on the grounds set forth by the motion court in its conclusions of law, quoted supra. The state's reticence has not escaped our attention.

There is measurable weight in the state's argument that movant's motion did not contain sufficient factual allegations to warrant an evidentiary hearing on any of the instances of alleged ineffective assistance of counsel about which the motion complained. We have, however, concluded that the factual allegations of movant's motion were sufficient--though barely so--to require an evidentiary hearing at least in regard to the issue of ineffectiveness identified in component "B" of the point on appeal. That complaint of ineffectiveness was set forth in "CLAIM I" of movant's motion, quoted supra.

"CLAIM I" charged defense counsel with ineffectiveness in failing to object to, or move for suppression of, an out-of-court statement by movant's codefendant. "CLAIM I" alleged that such statement implicated movant as the actual killer, that the statement was inadmissible by reason of certain provisions of chapter 211, RSMo, and that defense counsel's failure to resist the admission of such statement in evidence prejudiced movant.

While the state is correct in declaring that movant's motion failed to plead how the alleged violations of chapter 211 rendered the statement inadmissible against movant, it is obvious that the statement--so far as its use against movant was concerned--was hearsay.

If, as movant's motion alleged, the statement indeed implicated movant as the killer, and if, as movant's motion also alleged, defense counsel...

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