Parton v. State
| Decision Date | 19 September 1978 |
| Docket Number | 39658,Nos. 39318,s. 39318 |
| Citation | 571 S.W.2d 806 |
| Parties | Edward PARTON, Appellant, v. STATE of Missouri, Respondent. . Louis District, Division One |
| Court | Missouri Court of Appeals |
David V. Uthoff, Nicki E. Patterson, St. Louis, for appellant.
John D. Ashcroft, Atty. Gen., Paul R. Otto, Stanley Robinson, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., John P. Dockery, Jr., St. Louis, for respondent.
Movant appeals from the action of the trial court in dismissing without evidentiary hearing his motion for relief pursuant to Rule 27.26. Parton was convicted in 1971 of statutory rape of a six-year-old girl. The opinion of the Supreme Court on direct appeal of that conviction is found in State v. Parton, 487 S.W.2d 523 (Mo. 1972). In 1974, movant filed a motion pursuant to Rule 27.26 which was denied March 11, 1975. Opinion on appeal from that denial is found in Parton v. State, 545 S.W.2d 338 (Mo.App. 1976).
In his current motion, Parton raises the contention that he was denied his constitutional right to defend himself without counsel. See Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). This contention was advanced on appeal from the denial of movant's prior 27.26 motion, but not considered by this court because not raised in the trial court. Parton v. State, supra (1, 2). For the same reason we do not review certain contentions raised by movant pro se, but not raised in the trial court. The trial court denied the present motion on the basis that the movant could have raised this contention on his prior motion. Rule 27.26(d). Movant contends that he could not have raised the point because the constitutional principle upon which he relies was not discovered by the United States Supreme Court until Faretta, which was handed down after his prior motion had been denied. In Bibbs v. State, 542 S.W.2d 549 (Mo.App. 1976), we held that the right of a criminal defendant to represent himself was firmly established in Missouri law long before Faretta. See Missouri Constitution, Article I, Sec. 18(a) and Rule 29.01. The challenge now made to movant's conviction could have been made on appeal from the original conviction and in the first 27.26 motion. See State v. Burgin, 539 S.W.2d 652 (Mo.App. 1976).
Additionally, the doctrine of Faretta has been held to be prospective only. Martin v. Wyrick, 568 F.2d 583 (8th Cir. 1978). As such, it would not be available to movant.
Our careful review of Faretta has led us to further conclude that it does not hold that failure to permit a defendant to represent himself is inevitably prejudicial error requiring a new trial. See dissenting opinion of Blackmun, J., 422 U.S., l.c. 852, 95 S.Ct. 2525; United States v. Taylor, 569 F.2d 448 (7th Cir. 1978). The record here supports the legal conclusion that movant was not prejudiced by the court's action in denying his request to represent himself.
On the day of trial, Parton asked the court to discharge the attorney appointed to represent him. The basis of this request was largely his dissatisfaction with that attorney's experience in the criminal law field and the attorney's failure to file a pre-trial motion challenging the qualifications of the victim to testify. The court indicated its willingness to relieve counsel if movant had an attorney who would enter his appearance that day and would be ready to proceed. Although appointed counsel had represented movant for nearly a year, movant made no request that counsel be relieved until the day of trial. During the colloquy, movant expressed his lack of ability to try the case himself.
The trial court then conferred with appointed counsel and concluded that counsel had investigated all leads furnished him by defendant, had familiarized himself with the law, and based upon the court's personal knowledge of counsel's ability and counsel's statements determined that counsel was providing able and effective assistance. It should further be noted that counsel had pursued, over his client's objections, a request for mental examination and had consulted with two of the most experienced criminal trial lawyers in the area. Counsel also advised the court that he had not filed a pre-trial motion challenging the qualifications of the victim to testify as he regarded this as a proper subject for intra-trial proceedings (in which conclusion he was correct) and he did challenge such qualifications prior to the victim's testimony.
When movant indicated he could not hire counsel as specified by the court, the trial commenced. After selection of the jury, movant for the first time asked the court to permit movant to try the case without assistance of counsel. We note that in Faretta the Supreme Court laid great stress upon the fact that defendant's request to represent himself was made "weeks before the trial." 422 U.S., l.c. 835, 95 S.Ct. 2525.
Throughout the trial, movant was given frequent and full opportunity to consult with counsel and to determine the direction of his defense. Against counsel's advice he called three...
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Parton v. Wyrick
...the issue of the constitutional validity of the 1965 convictions. This motion, denied without a hearing, was affirmed on appeal. Parton v. State, 571 S.W.2d 806 (Mo.Ct.App. at Parton then filed the instant application for a writ of habeas corpus alleging, Inter alia, ineffective assistance ......