Sampson v. State, KCD

Decision Date31 July 1978
Docket NumberNo. KCD,KCD
Citation570 S.W.2d 337
PartiesDerryl SAMPSON, Movant-Appellant, v. STATE of Missouri, Respondent. 29849.
CourtMissouri Court of Appeals

Jerry W. Venters, Asst. Public Defender, Jefferson City, for movant-appellant.

John D. Ashcroft, Atty. Gen., Robert L. Presson, Asst. Atty. Gen., Jefferson City, for respondent.

Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.

DIXON, Judge.

Movant appeals denial of his Rule 27.26 motion after evidentiary hearing. Movant's underlying conviction was for two counts of robbery and concurrent 9-year sentences. The single issue raised by movant is ineffectiveness of counsel because of the failure of trial counsel to file a notice of appeal and perfect an appeal.

There is no question but that no appeal was taken from the movant's convictions. However, the mere failure to take an appeal does not constitute ineffective assistance of counsel. Coney v. State, 491 S.W.2d 501 (Mo.1973); Brown v. State, 512 S.W.2d 404 (Mo.App.1974). Only where the defendant wishes to appeal and his attorney either refuses or negligently fails to take the proper steps to appeal is there ineffective assistance of counsel. Green v. State, 451 S.W.2d 82 (Mo.1970); Brown v. State, supra. It is implicit in this rule of law that the desire to appeal must have been communicated to counsel or otherwise understood by him. See: State v. Scott, 492 S.W.2d 168 (Mo.App.1973); United States v. Neff, 525 F.2d 361 (8th Cir. 1975); McFadden v. United States, 312 F.Supp. 820 (E.D.Mo.1970), Aff'd, 439 F.2d 285 (8th Cir. 1971).

In a 27.26 proceeding, the allegations of the movant do not prove themselves, and the movant has the burden of proving his allegations by a preponderance of the evidence. Rule 27.26(f); McLallen v. State, 543 S.W.2d 813 (Mo.App.1976); Stroder v. State, 522 S.W.2d 77 (Mo.App.1975); Floyd v. State, 518 S.W.2d 700 (Mo.App.1975).

Applying these principles to the testimony offered at the evidentiary hearing, it is clear that the movant must show that the trial court's finding was clearly erroneous in that the evidence proved that the movant desired to appeal, that his lawyer knew by reason of a communication from the movant of that desire or in some fashion this was implied, and that the attorney failed to prosecute the appeal. Unquestionably, the evidence showed that the movant desired an appeal based on the movant's testimony and, as indicated, no appeal was taken. The critical issue is whether counsel for the movant understood the movant desired an appeal. The movant did not claim that he ever requested counsel to perfect an appeal. He testified it was his understanding that an appeal was being taken based on movant's testimony that his lawyer suggested an appeal and told movant he would file one. However, trial counsel also testified at the evidentiary hearing and said that he did not recall having a conversation with regard to a possible appeal. The lawyer decided not to appeal after the motion for new trial was overruled because he did not think there was any reversible error in the trial,...

To continue reading

Request your trial
8 cases
  • Wayne v. Wyrick, 80-1927
    • United States
    • U.S. Court of Appeals — Eighth Circuit
    • June 2, 1981
    ...either refuses or negligently fails to take the proper steps to appeal is there ineffective assistance of counsel." Sampson v. State, 570 S.W.2d 337 (Mo.App.1978). This Court's standard for judging the competency of counsel is as follows: In order to prevail on a claim of ineffective assist......
  • State v. Geary
    • United States
    • Missouri Court of Appeals
    • August 4, 1994
  • Pinson v. State, 13899
    • United States
    • Missouri Court of Appeals
    • March 28, 1985
    ...in this rule of law that the desire to appeal must have been communicated to counsel or otherwise understood by him. Sampson v. State, 570 S.W.2d 337, 338 (Mo.App.1978). Movant's assignment of error makes it clear that his complaint against defense counsel is that he (movant) requested that......
  • Reed v. State, WD
    • United States
    • Missouri Court of Appeals
    • December 22, 1981
    ...He failed to meet this burden. In a Rule 27.26 proceeding, the allegations of the motion do not prove themselves. Sampson v. State, 570 S.W.2d 337, 339 (Mo.App.1978); Pickens v. State, 549 S.W.2d 910, 913-14 (Mo.App.1977). Reed's failure to introduce any evidence to support his motion precl......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT