Hulstine v. State, 13977
| Decision Date | 03 December 1985 |
| Docket Number | No. 13977,13977 |
| Citation | 702 S.W.2d 120 |
| Parties | Howard Harley HULSTINE, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Howard Harley Hulstine, pro se.
William L. Webster, Atty. Gen., Carrie Francke, Asst. Atty. Gen., Jefferson City, for respondent.
On May 21, 1976, Howard Harley Hulstine and Roger Winningham were charged with capital murder, § 565.001, 1 repealed in 1984, for the deliberate premeditated killing of Carl Fancher. On July 12, 1977, an amended information was filed. On the same day, Hulstine entered a plea of guilty, after being advised by the trial court that the amended information charged him with first degree murder, and was sentenced to life imprisonment.
On January 28, 1982, Hulstine filed a pro se 27.26 motion seeking to vacate his sentence because of alleged ineffective assistance of trial counsel. Counsel was appointed, and after the motion was twice amended to include additional reasons to vacate the sentence, an evidentiary hearing was held, following which the motion court made findings of fact and conclusions of law, and entered judgment denying the motion. This appeal followed.
Our review is limited to a determination of whether the motion court's findings, conclusions, and judgment are clearly erroneous, Rule 27.26(j), keeping in mind that Hulstine had the burden of proving his grounds for relief by the preponderance of the evidence. Rule 27.26(f).
We also note that when Hulstine entered his guilty plea, he waived all claims of error, except to the extent that such errors affected the voluntariness and understanding with which the plea was made. Shelley v. State, 655 S.W.2d 126, 127 (Mo.App.1983).
In his appeal, Hulstine first contends that the motion court erred in finding that he received effective assistance of trial counsel because his counsel knew the individual Hulstine was accused of killing, and therefore had a conflict of interest. The attorney had requested to withdraw as Hulstine's counsel, because of his acquaintance with the victim, but his request was denied by the trial court. The motion court, in its findings and conclusions, noted that while Hulstine's trial attorney had known the man who had been murdered, such acquaintance did not, in any way, cause him to represent movant any less than to the best of his ability.
The transcript of the guilty plea proceeding shows that when the trial judge asked Hulstine whether he had any complaint about the way his attorney had handled his case, his answer was "[n]o objection at all, he has done a fine job." After examining the entire record and considering the testimony adduced at the evidentiary hearing, the motion court found that Hulstine's trial counsel exercised the customary skill and diligence that any reasonably competent attorney would have exercised under similar circumstances, and denied Hulstine's claim that his trial counsel was ineffective. These findings and conclusions are supported by the record and are not clearly erroneous.
Hulstine also claims that the amended felony information to which he entered a guilty plea was fatally defective because it "fails to state the name and the degree of the charge appellant was allegedly to have committed or to setforth [sic] the Criminal Statute that was allegedly violated or to setforth [sic] the Statute that of which fixes punishment upon conviction...."
The amended information charged that Hulstine:
premeditatedly, deliberately, and of malice aforethought in the perpetration of or in the attempt to perpetrate robbery of one Carl Fancher but without a premeditated intent to cause death of the said Carl Fancher or a particular individual, make an assault upon one Carl Fancher with a loaded pistol, and then and there, wilfully, unlawfully, feloniously, premeditatedly, deliberately and of malice aforethought did discharge and shoot said pistol upon the body of the said Carl Fancher thereby feloniously inflicting a mortal wound upon the said Carl Fancher, from which mortal wound Carl Fancher did die on April 28,...
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