Parkus v. State, 71521

• Decision Date: 12 December 1989
• Docket Number: No. 71521,71521
• Citation: 781 S.W.2d 545
• Parties: Steven Wesley PARKUS, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 545

781 S.W.2d 545

Steven Wesley PARKUS, Appellant, v. STATE of Missouri, Respondent.

No. 71521.

Supreme Court of Missouri,

En Banc.

Dec. 12, 1989.

Rehearing Denied Jan. 10, 1990.

Robert C. Wolfrum, Asst. Public Defender, St. Charles, for appellant.

William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.

DONALD B. CLARK, Special Judge.

Steven Parkus was convicted by a jury of first degree murder in the strangulation killing of another prison inmate. The death penalty was imposed in accordance with the jury verdict and the judgment was affirmed on appeal. State v. Parkus, 753 S.W.2d 881 (Mo. banc 1988), cert. denied, 488 U.S. 900, 109 S.Ct. 248, 102 L.Ed.2d 237 (1988). On June 30, 1988, Parkus filed a pro se motion for post-conviction relief pursuant to Rule 29.15. The motion was subsequently amended by appointed counsel, a hearing was conducted and relief was denied by the trial court. The appeal from that judgment is now considered pursuant to the policy of the Court concerning cases in which the sentence is death. We affirm.

In his first point, appellant asserts that the case should be remanded for rehearing because the motion court denied appellant due process of law. This charge is based on the claim that the judge who presided at the motion hearing, and who was not the judge before whom the original trial had been held, failed to read the entire transcript of proceedings and evidence from the trial. Appellant says, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), that an ineffective assistance of counsel claim must be examined based on the totality of the evidence, and that the motion court cannot fulfill its decision-making function unless it is acquainted with all the evidence presented at trial.

In support of his contention that the motion court abdicated its responsibility, appellant refers to the court's remarks during the course of the hearing. In effect, the judge observed that he did not intend to read the full trial transcript but he would examine any portions called to his attention that were relevant to movant's ineffective assistance claims. Appellant does not contend that any of his claims in particular received less than full consideration by the motion court or that lack of familiarity with the trial evidence affected the court's decision on any point presented. The claim is simply an abstract assertion that in all post-conviction motion proceedings, the court is obligated to review the entire trial record.

The claim here is virtually incapable of review because of its amorphous nature and because the record does not disclose whether the judge did later review the entire transcript before issuing his decision, or only selected portions. It does appear from the record, however, that the judge did make extensive findings indicating his familiarity with the case and, in the process, dealt with each of appellant's motion contentions.

We assume appellant's contention to be that in each case of post-conviction review under Rule 29.15, the court is to be bound by a rigid formula of procedure dictating a re-examination of the trial without reference to what claims of ineffective assistance are made. A movant for relief under the rule has no such right to challenge the judgment entered on his motion. In Strickland v. Washington, 466 U.S. at 696, 104 S.Ct. at 2069, the court noted that the principles involved in claims of ineffective assistance do not establish mechanical rules. The ultimate focus of inquiry is on the fundamental fairness of the proceeding in which guilt was adjudicated. In like manner, the test of the post-conviction review itself must be measured by its fairness and not with its adherence to arbitrary dictates of procedure.

The appellant argues that he was deprived of a constitutional right of due process which he contends entitled him to a consideration of his claims based on the totality of the evidence presented at the trial. This argument misconceives the nature of postconviction remedies. A Rule 29.15 proceeding is not a second appeal, involving scrutiny of the trial record. The proceeding is confined to the points specifically presented by the movant. Counsel may properly be required to direct the trial court's attention to the portions of the trial record relied on in support of the claims made. No attempt was made to do this before the trial court, or here. The appellant has received all the process due him.

In this case, the record demonstrates that the motion court reviewed each of appellant's contentions and entered findings and conclusions. The contention that the process by which the motion court reached its judgment may be re-examined for error is rejected. Review is limited to a determination of whether the findings and conclusions are clearly erroneous, Day v. State, 770 S.W.2d 692 at 695 (Mo.1989). Where the judgment is not deficient on that ground, the inquiry is at an end.

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