Rodgers v. State, 60434

• Decision Date: 15 June 1978
• Docket Number: No. 60434,60434
• Citation: 580 S.W.2d 510
• Parties: Willis L. RODGERS, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 510

580 S.W.2d 510

Willis L. RODGERS, Appellant, v. STATE of Missouri, Respondent.

No. 60434.

Supreme Court of Missouri, En Banc.

June 15, 1978.

Rehearing Denied July 24, 1978.

Michael P. Burke, St. Louis, for movant-appellant.

John D. Ashcroft, Atty. Gen., Frank J. Murphy, Asst. Atty. Gen., Jefferson City, for respondent.

SEILER, Judge.

The appellant, movant Willis L. Rodgers, appeals from an order of the circuit court in St. Louis denying without an evidentiary hearing or appointment of counsel, his pro se motion under rule 27.26 to vacate a 35-year sentence for first degree robbery. Rodgers was convicted after a jury trial and sentence was imposed by the court under the second offender act. The state had a strong case against Rodgers. He and his companion were caught by the police after a short chase from the scene of the holdup, in possession of the loot. Defendant put on no evidence whatsoever. On direct appeal the conviction was affirmed in State v. Rodgers, 525 S.W.2d 447 (Mo.App.1975). While Rodgers' pro se 27.26 motion attempted to state several grounds, the one which requires attention is the claim of ineffective assistance of counsel. Rodgers' pro se, alleged that defense counsel "was not seen until the day of trial"; that until then, movant did not even know defense counsel was on the case; that counsel held no discussions or interview with movant, did not discuss defense moves or strategy with movant at any time and made no factual investigation; that movant's right to effective assistance "is not limited to the court room"; that counsel was not "there" in the early critical stages of the proceedings and failed to aid and assist movant "to the depths of the case against him"; that movant informed the trial court that he had not seen counsel prior to the day of trial, but the court refused his request to dismiss counsel or to grant a continuance.

The court of appeals, St. Louis district, affirmed and the matter was transferred here on movant's application because of the general interest and importance of the question of whether a pro se petition such as above does not, in fact, state sufficient grounds at least to warrant appointment of counsel to consult with movant and file an amended petition, stating in lawyerlike fashion what occurred and the consequences from defendant's standpoint, for the further consideration of the trial court before any decision is reached concluding that no evidentiary hearing is required. We conclude the answer is yes, for the reasons stated below, and accordingly reverse and remand with directions.

The experienced and highly respected trial judge made specific findings of fact and conclusions of law, but failed, we believe, to meet the issues inherent in the ineffective assistance of counsel claim as presented by movant's rather disorganized yet pointed assertions. The question is largely one of law and we believe the trial court's conclusions and judgment are clearly erroneous.

We believe it is fair to say the trial court disposed of movant's ineffective assistance of counsel claim on the basis that the evidence as to movant's guilt was "overwhelming" and that no allegations were made by movant as to what counsel could have done to present "any semblance" of a defense; that this failure to allege what counsel could have done by way of trial preparation was "fatal" to the claim, particularly where movant "does not even allege his innocence or claim to have a meritorious defense." ¹

In our judgment this is too restrictive a view of what effective assistance of counsel requires. Effective assistance of counsel is not limited to being able to produce something which would change the outcome of the trial, so that in a case where guilt is so clear that nothing could be produced to overcome it, it follows that counsel could not have been ineffective. Movant was attempting to say as much when he alleged his right to effective assistance "is not limited to the court room." Effective assistance of counsel also includes what goes on before the trial as well as what takes place afterwards. If we assume what movant alleges to be true, and we have no right to do otherwise when we are testing the sufficiency of his claim on paper, particularly where as here there is nothing in the record which contradicts his allegations of fact as to counsel's alleged failure to consult with movant prior to trial, then we must accept as a fact that the lawyer in this case had no contact with movant until the day of the trial, at which time he appeared, introduced himself to the defendant, and proceeded to trial. To hold that a pro se 27.26 petition making such a claim can be dismissed without a hearing or appointment of counsel is not a rule with which the courts can live. Such a rule would condone last minute appointments of counsel or last minute attention on the part of counsel appointed earlier. It would encourage offhand treatment of criminal cases and would provide fertile soil for the seeding of post-conviction claims.

A lawyer who does not see his client until the day of trial and who had no communications with him before then is not meeting his responsibility as a lawyer and is not rendering effective assistance. There is more to the responsible, reasonable and thorough representation of a client than showing up on the day of trial and appearing as defendant's lawyer in the courtroom. Counsel should have consulted with his client well in advance of trial, ascertained from the client what he stated the facts to be, and done enough investigation and checking of facts and stories to make a reasonable appraisal of the strength of the state's case and the weakness of the defense. ² If counsel concluded the case was hopeless it was his duty so to advise the client and ascertain whether defendant would be willing for counsel to explore the possibility of a guilty plea and what the attitude of the prosecutor or his assistant would be in this regard and also, to the extent that it could properly be done, the attitude of the trial court with respect to any recommendations which the prosecutor might make or upon which counsel and defendant could agree. The time to commence this sort of negotiation and bargaining is before the parties arrive at the courthouse the morning of trial, by which time positions have hardened, witnesses are present, the court and the jury ready to go. All this fruitful period of time for possible disposition of the case without a trial and with a lower sentence in exchange for a settlement a guilty plea is lost when the lawyer sees his client for the first time on the morning of trial.

The duty of counsel in this regard is well put in the American Bar Association's Standards Relating to the Prosecution Function and the Defense Function, Approved Draft, 1971, p. 245, as follows:

6.1 Duty to explore disposition without trial.

(b) When the lawyer concludes, on the basis of full investigation and study, that under controlling law and the evidence a conviction is probable, he should so advise the accused and seek his consent to engage in plea discussions with the prosecutor, if such appears desirable.

In the Commentary following the above, at 246, appears the following:

b. Early Evaluation of Case

As soon as the lawyer has an understanding of the factual and legal aspects of the case he should determine whether a plea of guilty is the desirable course in the best interests of his client. If that is his informed conclusion, it is his duty to advise his client and seek the client's authority to explore with the prosecutor the...