Lalla v. State, 55733

• Decision Date: 08 February 1971
• Docket Number: No. 2,No. 55733,55733,2
• Parties: Michael Frank LALLA, Movant-Appellant, v. STATE of Missouri, Respondent
• Court: Missouri Supreme Court

Page 797

463 S.W.2d 797

Michael Frank LALLA, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 55733.

Supreme Court of Missouri, Division No. 2.

Feb. 8, 1971.

Motion to Reconsider or Transfer to Court En Banc Denied

March 8, 1971.

Legal Aid and Defender Society of Greater Kansas City, Kansas City, for movant-appellant.

John C. Danforth, Atty. Gen., Gene E. Voigts, First Asst. Atty. Gen., Jefferson City, for respondent.

HENRY I. EAGER, Special Commissioner.

This is an appeal from the denial of a motion under our Criminal Rule 27.26, V.A.M.R. to vacate a judgment. The appellant is represented by appointed counsel. The record is not clear on some matters preceding the filing of the motion, and we are left to assume certain facts. The intent of the motion is to vacate a judgment and sentence of six years for burglary, rendered on September 11, 1968, in the Circuit Court of Jackson County, Missouri. Defendant was represented at that trial by counsel of his own selection. The present motion was filed on April 15, 1970. On May 6, 1970, the Circuit Court denied the motion without an evidentiary hearing, but after appointing counsel to represent the appellant and after having conferred with him concerning the motion. The motion was not denied generally but solely on the ground that the appellant was not 'in custody in Missouri under the sentence sought to be vacated' but was incarcerated in a United States penitentiary elsewhere, and that the Court was 'without jurisdiction' to entertain the motion. Appointed counsel duly appealed. We were told in argument that the defendant (as we shall now designate him) was originally in federal custody in St. Louis, was released to Missouri for trial, was convicted and sentenced as already indicated, and was then returned to federal custody where he was convicted and has since been confined in federal institutions. The record does not designate the federal offense or the length of that sentence or sentences. He was initially confined in a federal institution in the State of Washington, but is now in one at Terre Haute, Indiana.

The present motion, stated briefly, alleges: ineffective assistance of counsel and conflict of interest on the part of trial counsel in that the latter failed to subpoena as a witness a codefendant who was willing to appear and testify; that counsel did so because admittedly he also represented the other defendant, which fact he did not disclose to the court until after the trial; that defendant announced his intention to appeal, that the Court permitted trial counsel to withdraw stating that it would appoint other counsel, but that it did not do so until too late for an effective appeal, even under our rules for late appeals; and that defendant was thus denied an appeal because he was then unable to employ other counsel. Other matters concerning evidence and arguments were also alleged. We may say here that on these allegations defendant would ordinarily be entitled to an evidentiary hearing under our Rule 27.26, if he was in compliance with its provisions generally. There is no need to discuss the various cases cited by defendant on that subject. See Rule 27.26(e) and (i).

The principal point made by defendant is that the Court erred in overruling his motion without an evidentiary hearing; a further point is that the denial of the motion, after demand for a review, was and is a denial of due process. These may be considered as one general point. The state merely refutes these points by asserting (as did the trial court) that the defendant was not a 'prisoner in custody under sentence,' within the meaning of our Rule 27.26. No authority has been cited on either side which is directly in point. Defendant's counsel stated very frankly in oral argument that this is a 'policy decision' for our court, i.e. (we suppose) a matter of construction of Rule 27.26; however, he improperly stated that the trial court had denied defendant's motion on all grounds, thus making the order res adjudicata. We do not so construe the order. The Court was not without jurisdiction as it stated, but by its order simply declined to hear the merits of the motion at that time. This did not rule the merits.

With further reference to defendant's motion, and before discussing the authorities, we note that it is not alleged that the State of Missouri has filed a detainer, or how, if at all, any such supposed detainer has affected the present nature or status of defendant's custody (a matter considered material in the cases). Defendant's counsel stated orally that there was 'presumably' a detainer, and he rather vaguely sought to explain how this would also (presumably) affect defendant's present custody. In order to reach the ultimate issue here we will assume that a detainer was filed, but we will not assume, without allegation or proof, how, if at all, it may affect defendant's custody.

Missouri has not denied defendant a post-conviction remedy; it has merely said that, not having him within its custody, a hearing on the matter will be postponed until he is available (and in custody) in Missouri. Defendant's counsel says that the federal cases, by analogy, indicate that Missouri should bring defendant back now for an immediate hearing. We shall discuss the principal cases cited. We note again that such a hearing would not constitute a criminal trial, but a proceeding which is specifically designated in our rule as an 'independent civil action.' (Rule 27.26(a))

The federal cases do seem to hold that a state which has by complaint, information, indictment, or the mere issuance of a warrant, instituted a criminal proceeding against one in custody elsewhere, should at least make a good faith effort to bring him back for a 'speedy trial.' Smith v. Hooey, 393 U.S. 374, 89 S.Ct. 575, 21 L.Ed.2d 607 (delay of six years); Klopfer v. North Carolina, 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed.2d 1 (mistrial and nolle pros); Dickey v. Florida, 398 U.S. 30, 90 S.Ct. 1564, 26 L.Ed.2d 26 (conviction reversed for delay of over seven years before trial); Pitts v. North Carolina (CA 4), 395 F.2d 182 (delay of 15 years). It has also been held that one in custody may attack the validity of an unserved consecutive state sentence by federal habeas corpus (Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426) on constitutional grounds. We see no close analogy in this. That defendant was actually in the custody of the state in question for the period of both sentences. Defendant cites the case of Nelson v. George, 399 U.S. 224, 90 S.Ct. 1963, 26 L.Ed.2d 578, as holding that 'Almost certainly, if a detainer has been lodged against him by Missouri authorities, his conditions of confinement, opportunity for federal parole and state of mind are being affected' (quotation from brief); so, counsel argues, defendant here is in the 'constructive custody' of Missouri. That case originated as a federal habeas corpus proceeding attacking the validity of a North Carolina judgment upon which a detainer had been filed in California where the defendant was confined. The opinion does not, as we read it, require a holding in our case that the defendant is 'in custody' within the meaning of our rule. It does hold: that federal habeas corpus could be maintained after the defendant had exhausted his California remedies and had shown in such proceedings that the detainer had affected the status of his custody; also that California might give whatever effect it chose to the detainer. The only holding of the case which is material here is that a detainer may be considered as the basis for a post-conviction remedy if it is shown to affect adversely the status of the defendant's present custody. In Carbo v. United States, 364 U.S. 611, 81 S.Ct. 338, 5 L.Ed.2d 329, it was held that a federal district court in California had jurisdiction to issue a writ of habeas corpus ad prosequendum to state authorities in New York. See also Desmond v. United States Board of Parole (CA 1), 397 F.2d 386, holding generally that one confined in a state prison (apparently in the same district) was in 'custody' within the meaning of Title 28 U.S.C., § 2255, when a federal detainer had been filed. Counsel for defendant stated in oral argument that the defendant would (or does) have a remedy in federal habeas corpus. We also note that if such petition were filed in Indiana the District Court could presumably transfer the proceedings to Missouri, if it chose to do so.

The case of Word v. North Carolina (CA 4), 406 F.2d 352, is cited to the effect that by delaying the hearing the defendant would have served a substantial part of his sentence before he could obtain a hearing on his claims. That, essentially, begs the question in our case. That may well be true, and even so, we are not given any details of the federal sentence. The Word case arose on federal habeas corpus, which was held to be a permissible procedure. The defendants were in custody in Virginia with North Carolina detainers filed. One defendant there was told to exhaust his North Carolina remedies. The Court further said that, although the tendency of the states was to expand their respective post-conviction procedures to match the federal act, they were not required to do so. In general, the Missouri procedure does so conform. See Garton v. Swenson (DC Mo.), 266 F.Supp. 726. The Word case may be considered as holding that, for the purpose of federal habeas corpus, the defendants might be considered as in the custody of North Carolina.

It must be conceded that the return of this defendant to Missouri upon any writ issued by Missouri courts would be purely discretionary with the United States Attorney General. Little v. Swenson (DC Mo.), 282 F.Supp. 333 and cases cited; Title 18 U.S.C., § 4085; and the request for any such return is required to come from the Governor or 'the executive authority' of the state, not from the courts. Sections 491.400--491.450 RSMo 1969,...