Rew v. State, 56342
| Decision Date | 08 November 1971 |
| Docket Number | No. 56342,No. 1,56342,1 |
| Citation | 472 S.W.2d 611 |
| Parties | Carrell Opel REW, Jr., Movant-Appellant, v. STATE of Missouri, Respondent |
| Court | Missouri Supreme Court |
Felix V. Gross, Pleasant Hill, for appellant.
John C. Danforth, Atty. Gen., G. Michael O'Neal, Asst. Atty. Gen., Jefferson City, for respondent.
WELBORN, Commissioner.
Appeal from denial of relief, after hearing, in proceeding under Supreme Court Rule 27.26, V.A.M.R., to set aside conviction and four-year sentence entered on plea of guilty to charge of operating motor vehicle without the consent of the owner. § 560.175, RSMo 1969, V.A.M.S.
On May 19, 1967, Corporal Battmer of the Missouri State Highway Patrol was patrolling on U.S. Route 50 in Jackson County. He received a radio report that a brown 1967 Mustang Fastback had been reported stolen in Harrisonville. A short time later he saw a vehicle answering the description of the stolen car, and pursued it, eventually finding it stopped in a farmer's driveway. He checked for the license number of the car reported stolen and found the car before him had that license. When he stopped his patrol car, the movant, Carrell Opel Rew, Jr., started walking from the Mustang toward the patrol car. According to the trooper's testimony on the 27.26 hearing, he drew his revolver as Rew approached and ordered him to place his hands behind his head. Rew's person was searched and he was handcuffed. The trooper testified that he read Miranda warnings from a card to Rew and then asked Rew if he had stolen the car and Rew said he had. Rew told the trooper that two other persons in the car were hitchhikers and had nothing to do with the theft.
Rew was taken to Patrol Headquarters at Lee's Summit. After preliminary hearing in the magistrate court, Rew was bound over to the circuit court and released on bond. On May 29, 1967, Rew appeared in circuit court for arraignment and a plea of not guilty was entered on his behalf. The court appointed an attorney to represent Rew and the magistrate court bond was continued.
In January, 1968, the appointed attorney was permitted to withdraw because Rew had employed an attorney. Rew did not complete the employment of his own attorney and on April 17, 1968, Rew appeared in circuit court and Elvin S. Douglas, Jr., was appointed as his attorney. On June 6, 1968, Rew and Douglas appeared in circuit court and Rew entered a plea of guilty and at Rew's request a pre-sentence investigation was ordered. On September 13, 1968, Rew and Douglas appeared in the circuit court and a sentence of four years was imposed. Rew's application for parole was granted and he was placed on parole. In January 1970, the parole was revoked and Rew was imprisoned. On July 25, 1970, he filed a motion under Supreme Court Rule 27.26, V.A.M.R., to set aside his conviction. Numerous grounds were alleged, those now pertinent being referred to hereafter. Counsel was appointed for Rew and a hearing was held at which Rew, Corporal Battmer and Douglas testified. The trial court entered findings of fact and conclusions of law adverse to Rew's claim. This appeal followed.
The first contention here is that the trial court should have set aside his conviction because it was based upon an unlawful arrest, followed by an illegal search, with a confession obtained without the presence of coun...
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