Shubert v. State, 35629
| Decision Date | 07 January 1975 |
| Docket Number | No. 35629,35629 |
| Citation | 518 S.W.2d 326 |
| Parties | Mitchell Jay SHUBERT, Movant, Appellant, v. STATE of Missouri, Respondent. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Donald L. Schmidt, Christopher Hexter, Legal Aid Society, St. Louis, for appellant.
John C. Danforth, Atty. Gen., Philip M. Koppe, Asst. Atty. Gen., Jefferson City, Gene McNary, Pros. Atty., James Hartenbach, Noel L. Robyn, Asst. Pros. Attys., Clayton, for respondent.
Movant Mitchell Jay Shubert appeals from a denial of his motion for post-conviction relief. Pursuant to Rule 27.26, V.A.M.R., movant had alleged that he was denied an adequate psychiatric examination and a competency hearing as provided by § 552.020, RSMo 1969, V.A.M.S., and that he received ineffective assistance of counsel. As a result, he asserted that his constitutional rights were violated. The trial court made findings of fact and conclusions of law and denied the relief sought without a hearing. We affirm.
In 1971 movant faced several criminal charges which included, among others, two charges each of burglary second degree and stealing. Before proceeding to trial, movant's court-appointed attorney requested a medical examination of defendant pursuant to § 552.020(2), RSMo 1969, V.A.M.S. The motion for this examination alleged that there was reasonable cause to believe movant was unable to stand trial due to a mental disease or defect. In April, 1971 a court-appointed psychiatrist examined movant and soon thereafter forwarded his report to the court. Both the prosecuting attorney and movant's attorney also received the results of this examination. The psychiatrist concluded that movant had no mental disease or defect and that he was capable of assisting in his defense.
On August 2, 1971, accompanied by his attorney, movant appeared in court. At this time movant withdrew prior pleas of not guilty to all charges and pleaded guilty to each one. Accordingly, he received sentences on five charges as follows: fourteen years on a charge including burglary second degree and stealing and two prior felony convictions; five years for attempted burglary second degree and two prior felony convictions; fourteen years on another charge including both burglary second degree and stealing; five years for tampering with a motor vehicle without the consent of the owner; and two years for escape from a county jail. All sentences were to run concurrently, so that movant was sentenced to a total of fourteen years on all five charges.
After denial of his 27.26 motion in July, 1973, movant appealed to this court. He raises two contentions of error.
Movant first contends that the trial court erred by overruling his motion because he was denied effective assistance of counsel, thereby rendering his guilty plea involuntary. He notes several acts or failures to act by counsel, all of which he maintains bear on his mental competency. According to movant, his attorney doubted his competence even after receiving the psychiatric report, but took no further action, and at the same time failed to inform or advise movant that he could challenge the report by requesting a judicial hearing under § 522.020(6), RSMo 1969, V.A.M.S. However, these contentions were not included in the 27.26 motion as grounds for relief, and are therefore not reviewable. Schleicher v. State, 483 S.W.2d 393, 394(2) (Mo. banc 1972); Maggard v. State, 471 S.W.2d 161, 162(1) (Mo.1971). In his 27.26 petition movant had alleged that counsel was unaware of § 552.020(6) and thus took no further action after receiving the psychiatric report. But this assertion relating to counsel's unawareness of a statutory provision is not argued on appeal and is therefore deemed abandoned. Brown v. State, 492 S.W.2d 762(1) (Mo.1973); McQueen v. State, 475 S.W.2d 111, 115(3) (Mo. banc 1971).
Movant also claims that his attorney failed to challenge the psychiatric report and neglected to request a judicial hearing on the competency question as provided by § 552.020(6). Such omissions by counsel allegedly deprived movant of an insanity defense. Movant relies on Miller v. State, 498 S.W.2d 79 (Mo.App.1973) and Brizendine v. Swenson, 302 F.Supp. 1011 (W.D.Mo.1969) to sustain this argument. The court concluded in Miller that movant had been denied effective assistance of counsel. But this holding was premised on defense attorney's failure to object to a psychiatric report and thus require an adjudication of the competency issue where counsel himself believed his client to be incompetent but still advised a guilty plea. Miller v. State, supra, 498 S.W.2d at 86. In the Brizendine case a federal district court decided that a habeas corpus petitioner had been rendered inadequate legal assistance because counsel was found in fact to be ignorant of Chapter 552, RSMo 1969, V.A.M.S., and also of petitioner's right to have independent psychiatric assistance at the state's expense. Brizendine v. Swenson, supra, 302 F.Supp. at 1021(8).
In the instant case, as already mentioned, movant's attorney requested and received a psychiatric examination for him pursuant to § 552.020(2). Since the results of the examination indicated movant to be mentally competent, counsel chose not to contest the report and decided to advise his client to plead guilty. There is no indication that counsel doubted either defendant's competency or the validity of the report. While movant urges that counsel should have challenged the report, no such duty is imposed on a defense attorney. In a case such as this, where serious offenses are involved, attorneys often request mental examinations for defendants under Chapter 552, RSMo 1969, V.A.M.S. Upon receipt of a report that a defendant is competent to stand trial, defense counsel is not obliged to pursue the question and to demand a judicial hearing on the issue. Collins v. State, 479 S.W.2d 470, 471(3) (Mo.1972). We find such circumstances present here. After receiving the report indicating movant's mental competence, his attorney was under no duty to pursue the matter and to contest the results. Here movant himself does not challenge the conclusion of the report; i.e., that he was mentally competent. His only objection goes to the examination itself in that it was...
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