Schlup v. State

• Decision Date: 30 May 1989
• Docket Number: No. WD,WD
• Citation: 771 S.W.2d 895
• Parties: Lloyd SCHLUP, Appellant, v. STATE of Missouri, Respondent. 40341.
• Court: Missouri Court of Appeals

Page 895

771 S.W.2d 895

Lloyd SCHLUP, Appellant, v. STATE of Missouri, Respondent.

No. WD 40341.

Missouri Court of Appeals Western District.

May 30, 1989.

Melinda P. Pendergraph, Columbia, for appellant.

William L. Webster, Atty. Gen., John P. Pollard, Asst. Atty. Gen., Jefferson City, for respondent.

Before KENNEDY, C.J., BERREY, J., and COVINGTON, Special Judge.

PER CURIAM:

This is an appeal from the denial, following an evidentiary hearing of appellant's Rule 27.26 motion for post-conviction relief. Appellant contends that the trial court erred in overruling his claim of ineffective assistance of counsel.

The sentence is vacated, and the case is remanded to the trial court with instructions to re-sentence movant, after which he may prosecute an appeal.

Appellant, who was an inmate at the Missouri State Penitentiary in Jefferson City, was charged with first degree assault as a result of the stabbing of his cellmate. A few weeks later, he filed a motion to discharge his public defender, and he sought leave of the court to represent himself. The trial court allowed appellant to proceed pro se, and appellant began filing motions to compel discovery and endorse certain witnesses.

At a subsequent hearing, the court asked appellant if he would accept a court-appointed attorney who was not with the public defender's office. The court suggested that appellant accept the appointment of Alden A. Stockard, a former Commissioner of the Missouri Supreme Court. As a retired judge practicing law, Judge Stockard was obligated to serve as an appointed counsel when requested to do so by the court. Appellant agreed to this arrangement, and Judge Stockard was appointed by the court to be appellant's attorney.

Following a jury trial, appellant was convicted and sentenced as a persistent offender to life imprisonment. No appeal was taken from his conviction and sentence. Appellant then filed the present Rule 27.26 motion, claiming that Judge Stockard rendered ineffective assistance of counsel. His motion was overruled after an evidentiary hearing.

As his first point on appeal, appellant contends that he was denied effective assistance of counsel because Judge Stockard effectively thwarted him from appealing his conviction. The evidence produced at the Rule 27.26 hearing shows that appellant informed Judge Stockard of his desire to appeal, but Judge Stockard responded by saying that an appeal would have no merit, and that his appointment to represent appellant did not include the taking of an appeal. It is clear from the record that Judge Stockard never got appellant's assent to the abandonment of the appeal.

Appellant argues that, not only did Judge Stockard refuse to appeal the conviction, he was also negligent because he did not formally withdraw and inform the court of the matter so that another attorney could be appointed to represent appellant on appeal. Appellant contends that Judge Stockard, as appellant's court-appointed attorney, was obligated to act on appellant's desire to appeal, even if he was unwilling to handle the appeal himself. At the very least, appellant argues, he should have taken the procedural steps to insure that someone else would handle the appeal.

At the evidentiary hearing on the Rule 27.26 motion, Judge Stockard acknowledged that he had told appellant that he did not believe that there were any grounds for appealing the conviction, and that his appointment did not include the taking of an appeal. However, he also told appellant that, if appellant wanted to appeal, appellant would have to find another attorney. He informed appellant that, if appellant thought there was a basis for an appeal, he should be specific in his request and he would pass that information to whomever appellant wanted it passed to.

We conclude that Judge Stockard's conduct constituted ineffective assistance of counsel. As appellant's court-appointed attorney, he had the obligation to either file an appeal on behalf of appellant or request permission from the court to withdraw as his attorney. Such an obligation is described in Shelton v. State, 724 S.W.2d 274 (Mo.App.1986). The Shelton court observed that, under Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983)--which clarified the respective roles of assigned counsel and the accused in the appeal of indigents' cases--the accused has the ultimate authority to make certain fundamental decisions regarding his case, including whether to appeal. Shelton, 724 S.W.2d at 275. Then, the Shelton court held as follows:

This court recognizes counsel's dilemma in taking an appeal which counsel believe to be meritless, but which the accused has insisted on (as is his right under Jones ).... Nevertheless ... if the accused chooses to proceed with the appeal against the advice of counsel, counsel should present the case, so long as such advocacy does not involve deception of the court. When counsel cannot continue without misleading the court, counsel may request permission to withdraw.

274 S.W.2d at 276. Thus, under the principle expressed in Shelton, Judge Stockard had the choice of either proceeding with the appeal or withdrawing from the case. He did neither.

An appointed counsel's obligation to either file an appeal or withdraw from the case is also embodied in section 600.044, RSMo 1986, which was in effect at the time of Judge Stockard's appointment. Section 600.044 provides that

[a] defender who undertakes to represent an eligible person shall continue to do so at every stage of the case or proceeding, including the filing of a motion for new trial and the processing, briefing, and argument of an appeal, until the defender is relieved of his duties by the director or is permitted by a court to withdraw.

Section 600.011, RSMo 1986, defines "defender" as including both "attorneys which serve as staff attorneys in the state defender system and assigned counsel who provide defense services on a case basis." Judge Stockard was assigned to provide defense services to appellant on a case basis; thus, this statutory scheme includes his situation.

We conclude that Judge Stockard's failure to either file the appeal or move to withdraw from the case constitutes ineffective assistance of counsel. Since his ineffectiveness consists of a failure to take or perfect an appeal, a showing of prejudice is not required. Chastain v. State, 688 S.W.2d 58, 60 (Mo.App.1985).

The proper remedy in this situation is to vacate the sentence and remand the case to the trial court for resentencing, with the time for appeal commencing from the date of the resentencing. Morris v. State, 603 S.W.2d 938, 941 (Mo. banc 1980); State v. Frey, 441 S.W.2d 11, 15 (Mo.1969). In addition, appellant seeks the additional relief of being allowed to file another motion for a new trial at that time. (Following appellant's trial, his counsel had duly filed a timely motion for a new trial, which was overruled by the trial court.) Had appellant alleged and proved that his counsel was ineffective for failing to file any motion for a new trial on his behalf, such relief might be appropriate. See State v. Smith, 598 S.W.2d 118, 123 (Mo.1980); Morris v. State, 603 S.W.2d at 941 n. 3. However, where the ineffectiveness is limited to a failure to file the appeal only, the remedy must be restricted to a second chance at the appeal only.

As his second point on appeal, appellant claims that his counsel was ineffective for failing to seek the discovery of certain documents prior to trial, for failing to investigate and interview certain witnesses, for failing to object to certain testimony and argument at trial, and for failing to conduct an adequate voir dire of the jury.

In his brief, appellant refers to a number of documents which he contends that his counsel failed to discover. First, he claims that he made no effort to obtain reports of blood and urine samples which were allegedly taken from appellant following the incident. According to appellant, such reports would have been helpful to his defense at trial because they would have corroborated his testimony that he and the victim were smoking marijuana together just before the incident.

However, we find that appellant was not prejudiced by the alleged failure of Judge Stockard to obtain any such reports. Appellant has not presented us with any convincing explanation as to how this evidence of marijuana smoking would have aided appellant's defense of self-defense at trial. In order to establish ineffective assistance of counsel, appellant must show that there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. Howard v. State, 698 S.W.2d 23, 25 (Mo.App.1985). This was not shown here.

Appellant also claims his counsel was ineffective because he made no effort to obtain the prison medical officer's report of the injuries and treatment received by appellant as a result of the incident. Appellant contends that the State relied primarily on the disparity between the serious injuries suffered by the victim and the minor injuries suffered by appellant in making its claim that appellant did not act out of self-defense. Appellant argues that, because of the importance of the issue of the injuries he suffered, his attorney should have tried to obtain the official medical report on those injuries.

However, appellant himself testified at trial that the only injury he received in the incident was a cut on the inside of his hand which was not serious enough to require stitches. In light of appellant's own testimony about the minor nature of the injuries he suffered, we cannot find that he was prejudiced by counsel's alleged failure to obtain the medical officer's report. In other words, appellant has not shown a reasonable probability that, had counsel obtained and produced the report, the result of the proceeding would have been different. Howard v. State, 698 S.W.2d at 25....