Mangan v. State, 13145
| Citation | 665 S.W.2d 85 |
| Decision Date | 08 February 1984 |
| Docket Number | No. 13145,13145 |
| Parties | Gary Lee MANGAN, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Frank V. DiMaggio, Asst. Public Defender, Springfield, for movant-appellant.
John D. Ashcroft, Atty. Gen., Bruce Farmer, Asst. Atty. Gen., Jefferson City, for respondent.
Gary Lee Mangan was jury-tried and convicted of second degree burglary and thereafter sentenced to seven years' imprisonment by the trial court. His conviction was subsequently affirmed by this court. State v. Mangan, 624 S.W.2d 156 (Mo.App.1981).
Mangan then filed a pro se Rule 27.26 motion, seeking to vacate his sentence. He listed two grounds as the basis for his motion, which were 1) "the trial court failed to properly instruct the jury on all elements of the crime for which petitioner-movant stood charged", and 2) ineffective assistance of trial counsel because "counsel for movant failed to request that the trial court properly instruct the jury on all elements of the crime for which petitioner-movant stood charged."
The specifics of these allegations were the failure of the trial court to give instructions MAI-CR2d 2.10 and 2.12, and the failure of the trial court to give an instruction on criminal trespass as a lesser included offense of the crime of second degree burglary. Mangan admitted in his motion that his trial counsel did not request the giving of such instructions, but contended his lawyer at trial was ineffective for not doing so.
Counsel was appointed for Mangan and the 27.26 motion was set for hearing. At the hearing, Mangan's counsel advised the trial court that Mangan had not requested that the 27.26 motion be amended. Counsel also advised the trial court that he had twice read the transcript, that he found nothing there to sustain Mangan's 27.26 allegations, that the record did not show defendant's trial counsel to be ineffective, and that he had advised Mangan of those conclusions. In his motion, Mangan stated he had no witnesses and relied on the trial transcript to prove his contentions. No evidence was introduced at the hearing. The trial court, thereafter, issued comprehensive findings of fact, conclusions of law, and a judgment denying the relief requested. Mangan appealed.
Although the trial transcript has not been filed here as a part of the legal file, Mangan's brief alleges that the following evidence was introduced at Mangan's trial on the burglary charge.
Between the hours of 6:30 P.M., June 25, and 6:50 A.M., June 26, 1980, someone broke into an office building located at 1628 South Campbell, Springfield, Missouri. Entry was gained through a glass skylight, which was broken by the intruder. The building housed several dental offices. When the dentists and their staff arrived at their offices on the morning of the 26th, they found their offices in general disarray, leaving the appearance that they had been ransacked. A "penlight" flashlight, some alligator (towel) clips, and some used dental gold were missing from one of the offices.
At 6:50...
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...ruling presupposes there was error in refusing the challenge for cause. The question is analogous to that posed in Mangan v. State, 665 S.W.2d 85, 86[2-4] (Mo.App.1984) (trial counsel not ineffective for failure to request an instruction which the court was not required to give) and Preston......
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