Martin v. State, 38726

• Decision Date: 02 August 1977
• Docket Number: No. 38726,38726
• Citation: 558 S.W.2d 701
• Parties: William MARTIN, Jr., Movant-Appellant, v. STATE of Missouri, Respondent. . Louis District, Division One
• Court: Missouri Court of Appeals

Page 701

558 S.W.2d 701

William MARTIN, Jr., Movant-Appellant, v. STATE of Missouri, Respondent.

No. 38726.

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

Aug. 2, 1977.

Motion for Rehearing and/or Transfer Denied Sept. 12, 1977.

Application to Transfer Denied Oct. 11, 1977.

Springfield Baldwin, St. Louis, for movant-appellant.

John D. Ashcroft, Atty. Gen., Preston Dean, Paul Robert Otto, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., Thomas C. Muldoon, Asst. Circuit Atty., St. Louis, for respondent.

DOWD, Judge.

This is an appeal from an order and judgment of the Circuit Court of the City of St. Louis, entered October 20, 1976, denying after an evidentiary hearing movant-appellant's motion to vacate sentences filed pursuant to Rule 27.26, V.A.M.R.

On December 5, 1974 movant-appellant, William Martin, Jr., was set for trial before a jury and a jury was selected when movant withdrew his plea of not guilty and entered a plea of guilty to three counts of robbery in the first degree by means of a dangerous and deadly weapon and to one count of carrying a concealed weapon. He was sentenced to 13 years imprisonment on each of the three counts of robbery and to 5 years imprisonment on the concealed weapon case with all sentences to run concurrently.

On July 8, 1976 movant filed his motion to vacate his sentences wherein he alleged that the sentences should be vacated because: (1) he was "suffering from narcotic withdrawal symptoms" at the time he pleaded guilty to the charges, and that the trial court should have sua sponte held a competency hearing; (2) ineffective assistance of counsel in failing "to investigate and make available documents for petitioner's defense."

On July 16, 1976, the trial judge appointed attorney James Booth to represent the movant and on July 21, 1976 set the motion for hearing on September 24, 1976.

The evidentiary hearing was held on October 1, and the trial court found that movant's guilty pleas were voluntarily made and denied relief. Movant appeals. We affirm.

At the hearing on October 1, 1976 there was extensive testimony heard with movant, two of his witnesses, and attorney Thomas Prebil testifying. Mr. Prebil represented movant prior to and at the time movant pleaded guilty. The hearing was continued to October 8, 1976. ¹ On that date movant attorney, Mr. Booth, filed a motion for continuance alleging that "movant was unaware that medical records maintained by the Methadone Maintenance Treatment Program fail to show that he was given Methadone until one week before he entered his plea of guilty." He also alleged that two witnesses were confined in the Missouri State Penitentiary who were present in the city jail during movant's confinement who would be able to testify they had seen movant administered methadone by a jail guard within one week of movant's guilty pleas. The motion for continuance was denied by the court.

The court approved on that same day (October 8, 1976) movant's pro se amendment to his motion alleging that movant received methadone while he was confined in the city jail from a guard within one week of the day he pleaded guilty and that he received morphine from employees of City Hospital one week before he pleaded guilty and that as a result of receiving methadone and morphine he was suffering from withdrawal symptoms.

Appellant contends on this appeal that the trial court erred in finding movant's guilty pleas to be voluntary for four reasons: (1) The trial court erred in denying appellant's motion for a continuance to present additional evidence of appellant's drug usage and the trial court had a duty sua sponte to determine whether or not appellant was incompetent to enter guilty pleas as a result of his withdrawal symptoms. (2) The trial court erred in making the finding of fact at the 27.26 motion hearing that defendant received effective assistance of counsel at the guilty pleas hearing. The basis of this contention is that defendant's attorney knew of his prior drug use and had a duty to move for psychiatric or medical examination in order to determine his competency. (3) The trial court erred in its findings of fact "That the testimony of the movant and his witnesses that he was suffering from withdrawal symptoms from methadone at the time he pled guilty is incredible and is not believed by this court." (4) The trial court erred in making his finding of fact "That the testimony of movant that he was suffering from withdrawal symptoms from morphine at the time he pled guilty is incredible and not believed by this court."

The review of an appeal raised after the denial of a motion made under Rule 27.26 is limited to a determination of whether the findings, conclusions and the judgment of the trial court are clearly erroneous. Rule 27.26(j). These findings and conclusions are only erroneous if, after review of the entire record, the court is left with the definite and firm impression that a mistake has been made. Quinn v. State, 515 S.W.2d 603, 605 (Mo.App.1974). The pleas of guilty can only be withdrawn to correct manifest injustice and the burden is upon the appellant to prove this by a preponderance of evidence. State v. Jackson, 514 S.W.2d 638, 641 (Mo.App.1974). The record here does not convince us that such a mistake has been made, such an injustice occurred, or that the burden of proof has been met.

Defendant's first point raises the question whether the trial court should have granted a continuance on October 8, 1976 of the 27.26 hearing in order for the defendant to obtain further evidence. Extensive testimony had been heard on the first date of the hearing on October 1, 1976. He contends that the evidence of the methadone center's record, the methadone case worker, and the testimony of his attorney, would clearly establish that defendant was participating in the methadone program up to the time of his incarceration. Defendant asserts that this evidence placed the judge under a duty, sua sponte, to determine whether appellant as a result of possible withdrawal symptoms was competent to stand trial.

We do not believe the trial court abused its discretion in refusing to grant movant's motion for a continuance made on October 8, 1976. The motion had already been extensively heard on October 1, 1976 and the hearing had been continued to October 8, 1976. Whether a continuance should be granted is largely within the discretion of the trial court and every intendment on appeal is in favor of the court's ruling. State ex rel. State Highway Commission v. Herman, 546 S.W.2d 488(8) (Mo.App.1976). We find no abuse of discretion in the court's denying the continuance in the middle of the hearing.

Given the evidence presented to the trial court at the hearing, it can be said that the weight of the evidence was so great against appellant that the testimony referred to in the motion for a continuance would not have altered the findings by the trial court. Even if this testimony had been permitted, it is unclear how appellant would have proven that his powers of understanding and judgment had been impaired by the use of drugs at the time he entered the guilty pleas. At the 27.26 hearing he stated that he was receiving methadone up to the day of the guilty pleas. He failed to explain how he could be suffering from withdrawal symptoms if he had received methadone the day of the guilty...