Lahmann v. State

• Decision Date: 07 May 1974
• Docket Number: No. 35032,35032
• Citation: 509 S.W.2d 791
• Parties: Archie L. LAHMANN, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 791

509 S.W.2d 791

Archie L. LAHMANN, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent.

No. 35032.

Missouri Court of Appeals, St. Louis District, Division One.

May 7, 1974.

Fred Rush, St. Charles County Public Defender, St. Charles, for plaintiff-appellant.

John C. Danforth, Atty. Gen., G. Michael O'Neal, Robert Presson, Asst. Attys. Gen., Jefferson City, David A. Dalton, Pros. Atty., Dale Rollings, Sp. Pros. Atty., St. Charles, for defendant-respondent.

SIMEONE, Judge.

This is an appeal from an order of the circuit court of St. Charles County entered after an evidentiary hearing denying movant-appellant's motion pursuant to Rule 27.26, V.A.M.R. to vacate sentence imposed for the offenses of burglary second degree and stealing.

Appellant, Archie Lahmann, was tried in November, 1969 and sentenced on February 2, 1970 on charges of burglary second degree and stealing and the conviction was affirmed. State v. Lahmann, 460 S.W.2d 559 (Mo.1970).

On March 18, 1971 he filed his motion to vacate in the circuit court of St. Charles County alleging as grounds of his motion that (a) 'This Court refused petitioner a preliminary hearing with counsel present' and (b) 'This Court denied petitioner the right to competent and effective counsel.'

An evidentiary hearing was held at which movant and his former attorney Ronald L. Boggs, were the principal witnesses.

After being charged with the offenses of burglary and stealing movant first appeared in magistrate court on June 18, 1969, and the right to obtain counsel was explained. The preliminary hearing was set for and heard on June 26, 1969. At the preliminary hearing on that date he appeared without counsel and was questioned whether he desired to hire an attorney or whether he desired the court to appoint one. Movant desired to hire his own counsel and desired a continuance to do so. The court indicated that it would grant a one-day continuance to employ counsel, but movant indicated he needed more time. The continuance was denied and the preliminary hearing was held without counsel.

Sometime early in July and prior to July 18, 1969, movant employed Ronald L. Boggs as counsel. On July 18, 1969 Boggs filed a motion to remand the cause for a preliminary hearing with the assistance of counsel. This motion was denied on August 4, and on the date movant entered a plea of not guilty. At defendant's request, the cause was continued until November 25, 1969. During that period movant met with counsel three or four times. The day before trial movant informed Boggs that he did not wish to be represented by Boggs and wanted to obtain a different attorney. The reason that movant gave was that petitioner 'had not told him (Boggs) everything.' Sometime prior to the trial a 'joint decision' was reached that Boggs would sit mute during the trial because no attorney was present at the preliminary hearing, the court denied a continuance and because movant no longer wanted Boggs as his attorney. The 'agreement' was somewhat 'of instructions (from movant) and somewhat of an agreement.'

While not all the facts concerning this decision were detailed in the evidentiary hearing on the motion, they are related in State v. Lahmann, supra.

After the evidentiary hearing the trial court made findings of fact and conclusions of law. The court found inter alia that (1) while petitioner does not have an abundance of formal education, he is 'articulate, possesses an average or better command of the English language and expresses himself clearly, (2) that in the Magistrate Court he was granted time to employ counsel for preliminary hearing but that he failed to do so although ample explanation was made of his right to obtain counsel, (3) petitioner was not represented by counsel at the preliminary hearing on June 26, 1969, (4) the first time petitioner told counsel he did not want him to defend him was the night before trial for the reason that he has not told counsel everything, (5) petitioner 'ordered' his counsel to sit mute during the trial and that this tactic was employed because the trial court refused to grant a continuance to employ other counsel, and that this tactic was agreed upon between movant and counsel for the purpose of injecting error, and (6) the grounds set forth in his motion to vacate the sentence had been ruled upon in his direct appeal.

The court, therefore, concluded that (1) failure and refusal to obtain counsel at preliminary hearing constituted a waiver, (2) even in the absence of waiver the circuit court was not required to remand for a preliminary hearing with counsel present because the hearing was conducted prior to Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970) which is not retroactive, (3) that counsel 'diligently and effectively attempted to represent' petitioner, (4) that the 'order' to sit mute was made at the behest of the petitioner after consultation with his attorney, so that it cannot be said that he has been denied the 'effective assistance of counsel at his trial.' The motion was therefore denied.

On this appeal movant contends (1) that the court erred in finding that he waived his right to an attorney at the preliminary hearing in the magistrate court and in finding that he was not entitled to have the cause remanded to the magistrate court for a preliminary hearing with counsel present, and (2) that the court erred in finding that he was not denied effective assistance of counsel.

A motion filed under Rule 27.26 is, of course, an independent civil action which is governed, so far as is applicable, by the Rules of Civil Procedure. Rule 27.26(a). In such a proceeding the burden is on the petitioner to establish by a preponderance of the evidence the relief sought. Beach v. State, 488 S.W.2d 652, 657 (Mo.1962). Upon our review of the order of the trial court we are limited to a determination of whether the findings, conclusions and judgment are 'clearly erroneous.' Rule 27.26(j); Crosswhite v. State, 426 S.W.2d 67, 70 (Mo.1968); Walster v. State, 438 S.W.2d 1, 2 (Mo.1969); Shoemake v. State, 462 S.W.2d 772, 775 (Mo. banc 1971). A finding is clearly erroneous when the reviewing court is left with the definite and firm conviction that a mistake has been committed. Crosswhite v. State, supra, 426 S.W.2d at 70--71. We must give due regard to the trial judge's opportunity to hear the witnesses and to defer to its determination of credibility unless it clearly and convincingly appears that it has abused its discretion. Walster, supra; Brown v. State, 495 S.W.2d 690 (Mo.App.1973). ¹

While an accused is entitled to the effective assistance of counsel, movant has a heavy burden to carry to show ineffectiveness. Counsel is vested with broad latitude and he is not to be adjudged incompetent and the movant denied effective assistance by reason of what, in retrospect, appears to be error of judgment. Hall v. State, 496 S.W.2d 300, 303 (Mo.App.1973) and cases cited therein. Counsel has broad latitude in the conduct of defense and cannot be adjudged incompetent and the client deemed to be denied effective assistance of counsel by reason of trial strategy which did not produce an acquittal or some other desired result. State v. Wilkinson, 423 S.W.2d 693 (Mo.1968); State v. Worley, 371 S.W.2d 221, 224 (Mo.1963); Frand v. United States, 301 F.2d 102, 103 (10th Cir.1962).

Under these principles we are convinced, after examining the transcript and the briefs and cases cited therein that the trial court did not err in denying appellant's motion to vacate sentence.

Petitioner made similar claims on his direct appeal that he has made in this motion. On direct appeal he contended that it was error for the court to overrule his motion to remand his case for preliminary hearing with the assistance of counsel. His...