Ray v. State, 45134
| Decision Date | 21 December 1982 |
| Docket Number | No. 45134,45134 |
| Citation | 644 S.W.2d 663 |
| Parties | Jerry Ronald RAY, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Jerry Ray, pro se, John C. Maxwell, Darrill Beebe, St. Charles, for plaintiff-appellant.
John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, George Peach, Circuit Atty., St. Louis, William J. Hannah, Pros. Atty., St. Charles, for defendant-respondent.
Appellant, Jerry Ronald Ray, was convicted of rape and first degree robbery by a jury in the Circuit Court of St. Charles County and was sentenced on September 13, 1976 to concurrent terms of 15 years for rape and 10 years for robbery. This court affirmed that judgment in State v. Ray, 600 S.W.2d 70 (Mo.App.1980).
On September 5, 1980, appellant filed a motion to vacate under Rule 27.26. On September 17, 1980 the Circuit Court appointed the Public Defender of St. Charles County to represent appellant and granted leave to file an amended 27.26 Motion on or before October 15, 1980. At that time there was in effect a statute which purported to prohibit the appointment of a Public Defender in a 27.26 proceeding, "except when a defendant is entitled to appointed counsel by constitutional requirement." § 600.066 RSMo 1978, as amended, Laws of Mo.1980, p. 502. 1 In order to avoid violating this statutory prohibition, the Public Defender took no action in representation of the appellant, but filed a Motion to Withdraw as Counsel or in the Alternative for a Ruling that Movant is Constitutionally Entitled to Court-Appointed Counsel.
On April 10, 1981, the Public Defender filed a notice calling up this alternative motion for hearing on April 24, 1981. In connection therewith, the Public Defender sought and the court issued a Writ of Habeas Corpus Ad Testificandum directing the Warden of the Missouri State Penitentiary to produce appellant for the April 24 hearing. On April 17, 1981, the court issued an Order setting April 23 as the hearing date for this alternative motion and also for consideration of whether the 27.26 motion and the records of the case showed the appellant "entitled to no relief."
On April 23, 1981, the court denied the Public Defender's alternative motion and further dismissed appellant's 27.26 motion. Findings of fact and conclusions of law were filed on May 5, 1981.
Appellant herein contends the court erred in appointing the Public Defender in violation of § 600.066. For reasons set forth below, it is not necessary that we decide this issue. However, we note that on March 11, 1982 a new Public Defender law, H.C.S.H.B. 1169, 81st General Assembly, 2nd regular session, was signed into law to become effective April 1, 1982. The 1980 amendment relating to the appointment of Public Defenders in 27.26 motions was repealed and not reenacted in the new statute. We are also mindful of the fact that the constitutionality of the 1980 amendment was challenged in two cases, State ex rel. Robards v. Casteel, 630 S.W.2d 583 (Mo. banc 1982), and State ex rel. Mendell v. Schoenlaub, 630 S.W.2d 584 (Mo. banc 1982). In both of these cases, the Supreme Court issued preliminary rules in prohibition 2 and, after the effective date of the new law, quashed the writ on the grounds of mootness. In view of the questioned validity of the 1980 amendment, the Alternative Motion for Leave to Withdraw or for a Ruling of Constitutional Entitlement to appointment of counsel, as filed by the Public Defender, was appropriate. He was truly between the horns of a dilemma--a charge of a contempt of court if he refused the appointment--a violation of the statute if he did not. Prior to the resolution of this dilemma, the Public Defender could not file an amended motion, or indeed any pleadings, without risking violation of the statute and possible removal from office or other discipline by the Public Defender Commission for malfeasance in office. § 600.026 RSMo 1978.
As no reason for the trial judge's overruling of the Public Defender's alternative motion is stated, and since no record of the proceedings was made, we are unable to ascertain whether the trial judge determined that appellant was entitled to the appointment of a Public Defender because of constitutional requirement or if the denial of the motion had some other basis. If the former, it would seem the summary dismissal of the 27.26 motion for failure to state a claim would be somewhat incongruous, to say the least. In any event, the action of the court in dismissing the motion immediately after the Public Defender was first placed in a position to undertake a proper representation of his client was in contravention of the intent of Supreme Court Rule 27.26(h) and requires the remanding of this cause to the Circuit Court.
The present Rule 27.26(h), effective January 1, 1980, provides:
(h) Right to Counsel. When an indigent prisoner files a pro se motion, the court shall immediately appoint counsel to represent the prisoner. Counsel shall be given a reasonable time to confer with the prisoner and to amend the motions filed hereunder if desired. Counsel shall have the duty to ascertain from the prisoner the facts supporting the grounds asserted in the motion and if those facts are not sufficiently stated in the motion, counsel shall file an amended motion. Counsel also shall ascertain from the prisoner whether he has included all grounds known to him as a basis for attacking the judgment and sentence and, if not, shall file an amended motion which also sufficiently alleges any additional grounds and the facts in support thereof. If, for good cause shown, appointed counsel is permitted to withdraw, the trial court shall appoint new counsel to represent the indigent defendant.
This rule is predicated upon the decision of the Supreme Court in Fields v. State, 572 S.W.2d 477 (Mo. banc 1978), wherein it was postulated that the appointment of counsel charged with the duty to ascertain facts and then to amend inartfully drafted pro se pleadings would result in improved finality of trial court rulings upon post-conviction remedy motions. Here, the underlying rationale of the rule was thwarted. Not only was the Public Defender not provided with an opportunity to amend the motion, he was deprived of an opportunity to consult with his client. As a part of the Order of Dismissal on April 23, 1981, the court withdrew the Writ of Habeas Corpus Ad Testificandum ordering production of appellant on April 24, 1981, which had been signed and issued by the trial judge on April 6, 1981. Both the foreclosure of counsel's opportunity to consult with his client and the dismissal of the 27.26 motion without opportunity for amendment by trained counsel strike at the very heart of the principles underlying Rule 27.26(h).
Appellant also contends the court erred in dismissing his motion without an evidentiary hearing. We agree. The first ground for relief set forth in the motion is that the State knowingly suborned perjury at his trial in violation of the Fifth and Fourteenth Amendments to the Constitution of the United States. Appellant alleged as facts supporting this contention that one Messick testified to material facts for the State at his trial; that the plea and sentence transcript in the case of State v. Messick (an unrelated felony charge) showed the prosecutor reduced the charge against him because of this testimony; and that at appellant's trial, Messick denied any deal had been made. 3
The standard for determining whether appellant is entitled to an evidentiary hearing was prescribed in Smith v. State, 513 S.W.2d 407 (Mo. banc 1974), cert. denied 420 U.S. 911, 95 S.Ct. 832, 42 L.Ed.2d 841 (1975). That standard requires that appellant plead facts, not conclusions, which if true would entitle him to relief, and it must be shown that such factual allegations are not refuted by the files and records of the case. Smith v. State, 513 S.W.2d at 411; Hutchins v. State, 624 S.W.2d 191 (Mo.App.1981); Simmons v. State, 621 S.W.2d 364 (Mo.App.1981).
Appellant's allegation, if true, would constitute a serious violation of due process. The court in State v. Brooks, 513 S.W.2d 168 (Mo.App.1973), held that the jury is the sole judge of the credibility of a witness and it must, therefore, be apprised of any facts which might cause a witness to be less...
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