Morton v. State
| Decision Date | 22 September 1986 |
| Docket Number | No. 14486,14486 |
| Citation | 718 S.W.2d 607 |
| Parties | Kimbal MORTON, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
T. Patrick Deaton, Public Defender, Springfield, for movant-appellant.
William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
Movant Kimbal Morton appeals from an order denying, without an evidentiary hearing, his Rule 27.26 V.A.M.R. motion to set aside a judgment and sentence for armed robbery. In the underlying criminal proceeding the trial court, sitting without a jury, found defendant guilty of armed robbery and sentenced him to 18 years' imprisonment. This court affirmed that judgment. State v. Morton, 648 S.W.2d 642 (Mo.App.1983).
On his appeal in the robbery case Morton contended that the trial court abused its discretion in denying his motion to withdraw his waiver of his right to trial by jury. On that appeal this court, in rejecting that contention, found that "the record reflects that defendant knowingly and intelligently waived that right and he does not claim otherwise."
In the instant appeal movant asserts that the trial court erred in denying his Rule 27.26 motion without an evidentiary hearing because the motion "contained a sufficient factual basis not conclusively refuted by the record to entitle [movant] to an evidentiary hearing as to whether he was deprived of his constitutional rights to a jury trial, effective assistance of counsel, and due process when he waived his right to a jury trial on the misadvice of his first attorney on a charge of robbery in which the only evidence of guilt was eyewitness identification." (Emphasis added.)
"An evidentiary hearing is required if: (1) the 27.26 motion alleges facts, not conclusions, warranting relief; (2) those facts raise matters not refuted by the files and records; and (3) the matter complained of resulted in prejudice to the movant." Hammond v. State, 661 S.W.2d 850 (Mo.App.1983).
On January 22, 1982, in the robbery case, defendant filed a written "Waiver of Trial by Jury." At that time defendant was represented by attorney Douglas Kays. The trial court held a hearing on that date and extensively interrogated the defendant with respect to the waiver. The court also meticulously instructed him with respect to the nature of the right he was waiving and the incidents of the waiver. The court made an express finding that the waiver was made voluntarily with a full understanding of the nature and consequences thereof, and the court assented to the waiver.
On April 23, 1982, a hearing was held on defendant's "Motion to Withdraw Waiver." At this hearing defendant was represented by attorney James McNabb. In support of his motion defendant testified that attorney Kays "raised the discussion as to this waiver." Defendant then testified, under direct examination by attorney McNabb, as follows:
"Q. And in what manner did he raise the discussion?
A. He told me that if I'd go to a jury trial, he said that no matter the way I go, you know, the jury is going to find me guilty.
Q. Did he explain anything else to you about a jury trial?
A. That's about it. He said if I get up on the stand, they'll find me guilty. If I don't get on the stand, they'll find me guilty. That's the reason I waived the jury trial.
Q. And so he recommended that you waive jury trial?
A. Yes.
Q. Did he state any other reasons why you should waive jury trial?
A. That's about it right there.
Q. And this discussion occurred prior to entering the waiver?
A. Yes.
Q. And that was the only discussion that occurred concerning the waiver?
A. (Witness nodded head.)
Q. Is that correct?
A. Yes, sir.
* * *
Q. Can you state why you--why you wish to withdraw your waiver of trial by jury?
A. Well, when I had Doug Kays, I was, you know, I didn't really want to do--waive my jury then. But Doug Kays, you know, counseled me into, you know, doing that, going in front--waive my jury and going in front of Judge Crow. He said I have a lot--a sentence, you know, a chance in front of Judge Crow. That's the reason I waived the jury in that matter, and that's the reason me and Kays--ever since I waived my jury, me and Kays, you know, I was worried, you know, worried about that incident when I waived the jury."
On cross-examination by the prosecutor the defendant admitted that he had had prior experience with criminal procedure. In August 1977 he had pleaded guilty, while represented by counsel, to four counts of grand stealing. He admitted that at that time the court explained to him his right to trial by jury. In March 1979 he pleaded guilty to the felonies of burglary in the second degree and stealing. Again defendant was represented by counsel and the court receiving the pleas explained to defendant his right to a jury trial. The court, in the robbery case, then denied defendant's motion to withdraw his waiver.
On May 13, 1982, defendant, now represented by Public Defender Ty Gaither, renewed his motion to withdraw the jury waiver. Under examination by Gaither defendant testified that he waived his right to a jury trial because attorney Kays had told him that The court again denied the motion to withdraw the jury waiver. In so doing, the court said:
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Dishmon v. State
...was the "main factor" that led counsel to advise Movant to waive his right to a jury. This advice was reasonable. See Morton v. State, 718 S.W.2d 607, 610 (Mo.App.1986) (counsel's advice was reasonable because "[i]f defendant had elected to testify in a jury trial of the robbery case, his p......