Martin v. State
| Decision Date | 04 April 2000 |
| Docket Number | WD54915 |
| Parties | Victor Martin, Appellant, v. State of Missouri, Respondent. WD54915 Missouri Court of Appeals Western District 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Jackson County, Hon. William F. Mauer
Opinion Summary: Victor Martin appeals the denial of his motion to vacate sentence and judgment under Rule 24.035. He claims that his decision to enter a plea of guilty was not voluntary, knowing and intelligent because plea counsel lead him to believe that he was entering a plea of guilty to robbery in the second degree in exchange for a sentence of five years. In this Court's original opinion, this Court affirmed the denial of Martin's Rule 24.035 motion and imposed a sanction for frivolous appeal. On rehearing, Martin asks this Court to reconsider that sanction and give guidance to counsel in similar situations.
Division holds: (1) The motion court's denial of Martin's Rule 24.035 motion was not clearly erroneous. The claim that counsel misled Martin concerning his plea agreement is refuted by the record of the plea hearing. No reasonable basis exists for Martin's stated belief that he was pleading guilty to second degree robbery.
(2) Until further order or decision of this court or higher authority, the proper procedure for appointed counsel in a direct criminal appeal is:
(a) Counsel shall present only nonfrivolous points, and shall present only the points counsel has strategically selected. Counsel is entitled, in the exercise of strategy, to "winnow out" less meritorious points, even if such points are arguable, when counsel is presenting points counsel deems to be more meritorious.
(b) If, in counsel's opinion, there is no arguable point, counsel should advise the client of the attorney's responsibility to comply with Rule 4-3.1 and Rule 55.03(b), and of the client's own possible exposure to a monetary sanction for the assertion of a frivolous claim under Rule 84.19. Counsel shall then prepare and file an "Anders brief" in which counsel sets forth a summary of the case, including procedural and evidentiary rulings in the trial court, with citations to the record, so that the court can satisfy itself that counsel has thoroughly reviewed the record, and the court can determine whether, in the court's view, there are no nonfrivolous grounds for appeal. Counsel should attempt to identify possible issues, and should indicate any issues the client suggests may be meritorious. Counsel is not to argue the case against his or her client, but instead shall present the record and indicate possible issues which counsel has considered or which have been suggested by the client. Counsel should seek leave to withdraw, stating that counsel has not been able to identify any nonfrivolous grounds for appeal.
(c) If the court concludes that there are no nonfrivolous grounds for appeal, counsel should be allowed to withdraw, and the appellant should be allowed to proceed pro se if the appellant desires. If the court concludes there is at least one arguable ground for appeal, even if it appears unlikely that such argument would prevail, the court should decline to grant leave to withdraw, and should specify the point or points the court desires argued.
(3) Until further order or decision of this court or higher authority, the proper procedure for appointed counsel in a postconviction motion appeal is:
(a) Counsel shall present only arguable claims. Counsel should advise the client of the attorney's responsibility to comply with Rule 4-3.1 and Rule 55.03(b), and of the client's own possible exposure to a monetary sanction for the assertion of a frivolous claim under Rule 84.19. Counsel should also ensure that the client has been informed of the "clearly erroneous" standard of review applicable to appeals of postconviction motions.
(b) Unless the client wishes to abandon the appeal, counsel shall then prepare and file an "Anders brief" in which counsel sets forth a summary of the case, including procedural and evidentiary rulings in the trial court, with citations to the record, so that the court can satisfy itself that counsel has thoroughly reviewed the record, and the court can determine whether, in the court's view, there are no nonfrivolous grounds for appeal. Counsel should attempt to identify possible issues, and should indicate any issues the client suggests may be meritorious. Counsel is not to argue the case against his or her client, but instead shall present the record and indicate possible issues which counsel has considered or which have been suggested by the client. Counsel should seek leave to withdraw, stating that counsel has not been able to identify nonfrivolous grounds for appeal.
(c) If the court concludes that there are no nonfrivolous grounds for appeal, counsel should be allowed to withdraw, and the appellant should be allowed to proceed pro se if the appellant desires. If the court concludes there is at least one arguable ground for appeal, even if it appears unlikely that such argument would prevail, the court should decline to grant leave to withdraw, and should specify the point or points the court desires argued.
(4) Martin's appeal in this case had absolutely no prospect of success and is thus deemed to be frivolous. However, because of the confusion on the issue of frivolous appeals of postconviction motions, this court will withhold sanction.
This case deals with the difficult issue of the imposition of sanctions against appellants in appeals arising from criminal convictions.
Victor Martin was charged as a prior and persistent offender with the class A felony of robbery in the first degree, section 569.020, RSMo 1994. He pleaded guilty to the charge of robbery in the first degree and was sentenced to ten years imprisonment. Martin filed a motion to vacate sentence and judgment under Rule 24.035, which was denied by the trial court. Martin appealed. Martin claimed that the motion court clearly erred in finding that his decision to enter a plea of guilty was voluntary, knowing and intelligent, because the evidence at the hearing showed that plea counsel caused him to believe that he was entering a plea of guilty to robbery in the second degree in exchange for a sentence of five years. This court, on November 3, 1998, denied Martin's appeal. This court also found Martin's appeal frivolous and assessed a sanction in the amount of $100.00 against Mr. Martin. Thereafter, on August 3, 1999, this court granted rehearing to consider issues raised in Martin's motion for rehearing concerning the issue of sanctions on frivolous appeals from rulings on postconviction motions.
In the opinion issued thereafter, we not only affirmed the denial of Martin's Rule 24.035 motion, but we also considered the duty of counsel in both direct criminal appeals and appeals of postconviction motions, recognizing the constitutional difference between the two. We considered the definition of frivolousness we have heretofore used, and we adopted a new, narrower definition. We adopted an approach for counsel filing an Anders brief2 in direct criminal appeals, when counsel believes there is no nonfrivolous point to raise; and we prescribed directions for counsel in appeals of postconviction motions who find no arguable point to raise.
Thereafter, we granted rehearing once again to consider some adjustments to the approach we adopted for appeals of post-conviction motions. Also, we wished to consider the January 2000 decision of the United States Supreme Court in Smith v. Robbins, 120 S.Ct. 746.
On December 23, 1995, Martin was charged by amended information with robbery in the first degree. The information alleged that Martin forcibly stole a VCR from the possession of Barbara Black. Martin was charged as a prior and persistent offender. On April 26, 1996, Martin pleaded guilty to robbery in the first degree. At the guilty plea hearing, the State explained that in exchange for Martin's plea to robbery in the first degree, the State was asking for a ten year sentence. The court asked Martin if he heard the recommendation. He answered, "Yes." Martin stated that he wished to plead guilty based upon the recommendation. He stated that he had sufficient time to discuss the plea with counsel and that he was satisfied with counsel's performance. The plea court informed Martin of his right to plead not guilty and his right to trial by jury. The court further informed Martin that he would forfeit these rights by pleading guilty. The court once again inquired whether Martin wanted to plead guilty based upon the State's recommendation of a ten year sentence. Martin replied that he did. In response to questioning, Martin admitted that he entered the home of Barbara Black without her permission, armed with a weapon. He held a gun to Ms. Black's head and took a VCR. At the conclusion of the plea hearing, the court sentenced Martin to ten years imprisonment.
On July 29, 1996, Martin filed a pro se Rule 24.035 motion, alleging dissatisfaction with counsel in several respects. An amended motion was filed on December 2, 1996. In the amended motion, Martin claimed for the first time that counsel led him to believe that he was pleading guilty to robbery in the second degree and that in return he would receive a five year sentence. He claims that he was told by counsel not to make any "problems" and to go along with the court's questioning at the plea hearing.
A hearing on Martin's Rule 24.035 motion was held February 28, 1997. Martin was the only person who testified at the hearing. The state relied upon the guilty plea transcript. At that hearing, Martin testified that he believed that he was pleading guilty to a charge of robbery in the second degree. He claimed that he was expecting a sentence of five years, but that he found out that he was pleading to robbery in the first degree and was...
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