Ivy v. State, 9505

• Decision Date: 23 April 1974
• Docket Number: No. 9505,9505
• Parties: Eddie L. IVY, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 148

509 S.W.2d 148

Eddie L. IVY, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 9505.

Missouri Court of Appeals, Springfield District.

April 23, 1974.

Edward F. O'Herin, Malden, for movant-appellant.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Robert Presson, Asst. Attys. Gen., Jefferson City, for respondent.

TITUS, Judge.

Eddie L. Ivy pled guilty in the Circuit Court of Pemiscot County April 6, 1971, to forcible rape (§ 559.260 RSMo 1969 V.A.M.S.) and was sentenced to ten years with credit for jail time served. His third Rule 27.26 V.A.M.R. motion was overruled without evidentiary hearing upon a finding that it presented nothing that had not been previously raised and determined adversely to movant. Rule 27.26(d). This appeal ensued.

The December 4, 1970, complaint averred the rape had occurred December 2, 1970. Movant was arrested December 4, 1970, under a warrant issued that date and on December 7, 1970, Raymond A. Klemp was appointed to represent him. The preliminary hearing first set for December 14, 1970, was continued to and conducted on December 17, 1970. Movant was bound over to the circuit court where an information was filed December 22, 1970. Following arraignment and a plea of not guilty on January 19, 1971, appointed counsel moved for a mental examination. The motion was sustained and movant was sent to State Hospital No. 1 where the examination disclosed that he had 'no mental defect.' As already stated, movant, with counsel, appeared April 6, 1971, pled guilty, was afforded allocution and sentenced.

The grounds stated in movant's first Rule 27.26 motion filed July 6, 1971, were: 'Denial of Sixth Amendment right to effective assistance of counsel. Involuntary plea of guilty was entered in violation of Fifth and Fourteenth Amendment's (sic) to the United States Constitution.' These grounds were sandwiched between two diffusions that appointed counsel had not once consulted with movant between the date of appointment and the guilty plea, and that the attorney made no effort 'whatsoever to investigate the charge.' The unconcentrated indictment culminated with the averment that movant 'can see little if any practical difference between his induced plea for reasons of ineffective assistance of counsel and a guilty plea induced by promises and or threats.' In other words, movant's despair over counsel's efforts and services is what he claims caused his plea of guilty. Byron D. Luber was appointed to represent movant on this first motion.

In November 1971 John R. Fowlkes was substituted as appointed counsel and hearing on the first motion was set for December 1, 1971. On the latter date, however, movant expressed a desire to secure counsel of his own selection and the hearing was continued for that purpose. Movant's second pro se Rule 27.26 motion was filed January 13, 1972, wherein he asserted that the first motion should be 'throwed (sic) out and the one Here used in its place.' In the second motion where movant was directed to 'State concisely all the grounds known to you for vacating, setting aside or correcting your conviction and sentence,' he wrote: 'See: Supplementary Page.' This page consisted of the description of a county jail that 'is filthy and dirty, unfit for a pig to sleep in (or) for human habitation,' a purported jail menu for a week calling for 'seven days of starch, puntive (sic) damage to the body,' and a declaration that 'All of this goes in involuntary plea. . . . My rights have been violated in containing a line-up and a phone call. I am entitled to a time cut.'

When no employed counsel appeared for movant, Mr. Fowlkes was reappointed. The two motions were ordered consolidated for hearing although the order recited a finding that the second motion 'does not allege grounds requiring an Evidentiary Hearing (and) Hearing is granted only on issues raised in the original motion.' Nevertheless, and contrary to this order, movant was given full rein at the March 27, 1972, hearing to testify on all subjects of his choosing.

At the evidentiary hearing, and contradictory of the allegations in the first motion anent the utter dearth of contact between client and counsel from the time of appointment to the guilty plea, movant recounted that he had discussions with Mr. Klemp, his appointed attorney, in conjunction with the preliminary hearing, arraignment, the motion for mental examination and the plea. Albeit movant insisted 'we didn't discuss it enough,' he acknowledged that counsel came to see him in jail 'when I called him', that his lawyer had advised him of his right to a jury trial and explained the range of punishment provided by statute. Movant understood what 'rape' meant when he pled guilty and was under the impression that the sentence was to be fifteen years rather than the ten imposed. When asked 'Did anyone coerce you or threaten you in any way . . . beat you up or anything of that nature (to get you to) enter a plea of guilty? Did the Sheriff's office mistreat you in any way?', movant answered: 'Well, in one way, yes, . . . the living conditions (in the county jail) is one thing that caused me to plead guilty, . . . because I wanted to get out from . . . over there. . . . . . . and another one, my lawyer kept telling me . . . if I go to a jury trial . . . I would get life and that they had all the evidence they wanted or needed against me . . .. Q. . . . isn't . . . the main reason that you filed this Motion was to get your time cut down? A. . . . that is the main reason. Q. It wasn't that you didn't know what you were doing when you pleaded guilty but it was that you thought you had gotten too much time for it, isn't that correct? A. Well, for something I didn't do, yes it was.' Movant agreed that 'one of the main reasons' for his motion was to obtain a 'Time cut or either a parole.'

Omitting details, Mr. Klemp, movant's counsel on the rape charge, testified he had discussed the matter with movant several times during the preliminary phase of the case and several times thereafter. In addition, he conferred with movant at the time of each court proceeding, talked with two others who were said to have participated in the rape, conferred by telephone with movant's mother, inspected the scene of the crime, attempted to locate possible witnesses suggested by movant, and discussed the matter of sentence recommendations with the prosecuting attorney. The transcript of the proceeding at the time the plea of guilty was entered was offered as an exhibit and attests that counsel had urged a parole as movant said he represented he would do. In this regard, movant testified that the attorney had admonished that although he would seek parole, 'he didn't think it would work.'

When the hearing was concluded the court dictated, inter alia, the following findings: 'Let the record show . . . that the Court finds from an examination of the transcript of the proceedings in this cause, which includes the proceedings (on the motion for mental examination and at the time the plea of guilty was entered and) the Court files, the Court finds that the motion and the evidence produced, that the movant has totally failed to carry the burden of proof and convince this Court that he did have incompetent counsel. And the Court does find that Mr. Klemp, who acted as his Court appointed Attorney represented him in the preliminary hearing and in all proceedings in Circuit Court . . ., and that there is a total lack of any proof showing that Mr. Klemp was incompetent or failed to do anything that should have been done or did anything incorrectly correctly in his representation of this Movant . . .. (Movant was) entitled to competent counsel and the Court has found that he was afforded and did have competent counsel at all proceedings held in the original criminal case.' The motion was denied and no appeal was taken from the judgment entered in accordance with the denial.

The third Rule 27.26 motion with which we are directly concerned was filed January 3, 1973. Grounds enumerated 'for vacating, setting aside or correcting your conviction and sentence' ...