McGinnis v. State, 54068
| Decision Date | 27 September 1988 |
| Docket Number | No. 54068,54068 |
| Citation | 764 S.W.2d 653 |
| Parties | Lena McGINNIS, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
M. Dwight Robbins, Fredericktown, for appellant.
William L. Webster, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for respondent.
Movant appeals the dismissal of her Rule 27.26 motion without an evidentiary hearing. We affirm.
On August 10, 1984, movant pled guilty to burglary in the second degree. The trial court suspended imposition of sentence and placed her on probation with the condition she not use drugs or alcohol. On June 14, 1985, her probation was revoked for smoking marijuana, and she was sentenced to seven years' imprisonment. She then filed a Rule 27.26 motion. The motion court, after making detailed findings of fact and conclusions of law, dismissed her motion without an evidentiary hearing.
Movant raises two points on appeal, both asserting she is entitled to an evidentiary hearing. To be entitled to an evidentiary hearing, she had to plead facts, not conclusions, not refuted by the record, and which, if true, would have entitled her to relief. Capraro v. State, 715 S.W.2d 11, 12 (Mo.App.1986).
Movant alleges her lawyer was ineffective antecedent to her guilty plea and at her probation revocation hearing. Movant's claim of ineffectiveness of counsel at her probation revocation hearing is not cognizable in a Rule 27.26 proceeding. Clark v. State, 736 S.W.2d 483, 484 (Mo.App.1987).
Movant asserts her counsel was ineffective antecedent to her guilty plea because counsel failed to investigate the voluntariness of movant's statements to the police and to seek suppression of all statements she made. Upon a plea of guilty, all claims of ineffectiveness of counsel are waived except to the extent they made the plea involuntary. Oerly v. State, 658 S.W.2d 894, 896 (Mo.App.1983). Movant had made two statements to the police admitting to the crime. The circumstances indicated the second statement would have been inadmissible because a police officer obtained it by misrepresenting to movant that she would only be required to make restitution. There were no facts, however, to make the first confession inadmissible. At the guilty plea hearing, counsel stated he and movant had previously discussed the circumstances surrounding movant's statements to the police. He had advised movant her second statement was not admissible, but her first one probably was. Movant confirmed she understood this. Further, when questioned by the court, movant answered she was satisfied with her attorney's investigations of the case, he had interviewed all witnesses, and she was fully satisfied with his advice and counsel. Movant's allegations are clearly refuted by the record, for it demonstrates movant voluntarily pled guilty with the full knowledge and advice of her counsel's...
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Smith v. State, 56459
...guilty all claims of ineffective assistance of counsel are waived except to the extent they make the plea involuntary. McGinnis v. State, 764 S.W.2d 653, 654 (Mo.App.1988). To prevail on an ineffective assistance of counsel claim, a movant must show that counsel's performance was deficient ......
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Gillespie v. State, 56478
...bears on the issues of voluntariness and understanding of the plea. Hall v. State, 496 S.W.2d 300, 303 (Mo.App.1973); McGinnis v. State, 764 S.W.2d 653, 654 (Mo.App.1988). Tested within these well-established principles, the movant's claims that he was pressured into pleading guilty because......
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Wolf v. State, 56426
...of counsel is relevant only for purposes of ascertaining whether the plea of guilty was made voluntarily. McGinnis v. State, 764 S.W.2d 653-654 (Mo.App.1988); Gawne v. State, 729 S.W.2d 497, 499 (Mo.App.1987). By pleading guilty, appellant waived all claims of ineffective assistance of coun......
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Pine v. State, 57108
...guilty all claims of ineffective assistance of counsel are waived except to the extent they make the plea involuntary. McGinnis v. State, 764 S.W.2d 653, 654 (Mo.App.1988). Our review is limited to determining whether the findings, conclusions, and judgment of the motion court are clearly e......