Sinclair v. State, 14186
| Decision Date | 25 March 1986 |
| Docket Number | No. 14186,14186 |
| Parties | Randy Lee SINCLAIR, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Kathleen Murphy Markle, Columbia, for movant-appellant.
William L. Webster, Atty. Gen., Michael R. Whitworth, Asst. Atty. Gen., Jefferson City, for respondent.
By motion under Rule 27.26, movant sought to vacate convictions for second-degree assault and armed criminal action. Movant was imprisoned under sentences for the convictions. While his motion was pending in the trial court movant attempted to escape from prison. He was shot and his attempt to escape failed. The trial court determined that by attempting to escape movant "lost his standing" to bring his 27.26 motion. The court dismissed the motion without an evidentiary hearing.
On appeal movant contends that the trial court's order dismissing his motion was improper because (1) the dismissal violated his rights to access to habeas corpus relief under the United States and Missouri constitutions and such a dismissal is not mandated where escape has been merely attempted, and (2) he was entitled to an evidentiary hearing because he alleged sufficient facts of ineffective assistance of counsel to show that he was entitled to relief.
We first discuss whether movant's attempt to escape justified the dismissal of his motion. The parties have not cited us to a case in Missouri where the courts have considered whether an attempted escape forfeits a right to relief either in a criminal case or in a suit seeking post-conviction relief following conviction.
In its brief, the state, appearing to contend that it is movant's intent to escape that forfeits his right to proceed, quotes from Estelle v. Dorrough, 420 U.S. 534, 537, 95 S.Ct. 1173, 1175, 43 L.Ed.2d 377 (1975), that "no persuasive reason exists to adjudicate the merits of such a case and an escape disentitles the defendant to call upon the resources of the court for determination of his claims." The state claims that "More rationale" for this rule is found in Wayne v. State, 579 S.W.2d 780 (Mo.App.1979), where an escape from custody occurred. The state quotes from that opinion: 579 S.W.2d at 781.
"Missouri has long had the rule that a defendant who escapes or flees the jurisdiction of its courts either during trial or in the process of post-trial proceedings forfeits his rights to an appeal upon the merits of the cause." State v. Peck, 652 S.W.2d 244, 245 (Mo.App.1983).
Fowler v. Leeke, 509 F.Supp. 544 (D.S.C.1979) held that a convicted felon abandoned a post-conviction relief claim by escaping while the case was pending in the trial court. In the balance of the discussion of movant's point, we will assume, without deciding, that an escape would have justified the trial court in dismissing the movant's 27.26 motion. We are left then with deciding if an attempt to escape calls for the same result.
In State v. Carter, 98 Mo. 431, 11 S.W. 979 (1889), the court ordered that if the defendant in a felony case did not surrender within a certain time his appeal would be dismissed. When he did not surrender, the appeal was dismissed. This indicates to us that returning to custody, before a defendant's appeal is dismissed, allows the appeal to continue. It follows then that an unsuccessful attempt to escape custody should not cause the dismissal of an appeal. Other jurisdictions seem to agree. "An appeal will be dismissed on the ground of escape of appellant only in a clear case of escape." 24A C.J.S. Criminal Law, § 1825(4), p. 486 (1962).
The reason for dismissing an appeal where the party seeking relief has absconded from custody is stated in State v. Logan, 125 Mo. 22, 28 S.W. 176, 177 (1894):
Courts uniformly refuse to take any steps in a criminal proceeding unless the defendant is in custody, either actual or constructive. The whole theory of criminal proceeding rests upon the idea of the defendant being personally under the control of the court.... Courts will not waste their time in considering questions or in making matters of record which will prove effectual or ineffectual accordingly as they may be ratified by the consent of a party charged with crime.
This appears to be the theory upon which other jurisdictions dismiss the appeal of a defendant who has escaped. See 18 Geo.Wash.L.Rev. 427, 429 (1949-1950). We believe the theory behind such dismissals is not the attitude or intent of the person convicted as the state appears to urge, but because the person is no longer within the control of the court. There is no reason why this rationale should not apply to 27.26 motions wherever pending.
"When a convict escapes and puts himself in a position where he cannot aid the court which needs his testimony in the determination of his petition, he has frustrated the administration of justice, made it impossible for the court to consider his petition, and has abandoned his application for relief on the merits." State v. John, 60 Wis.2d 730, 211 N.W.2d 463, 466 (1973).
Had movant's attempted escape substantially hindered the trial court's determination we might reach a different conclusion. A nonevidentiary hearing was cancelled because of the injuries movant received in his attempted escape, but that was not the basis for the trial court's dismissal and we cannot presume that his absence in any manner substantially hindered the trial court's determination. Under these circumstances, we conclude that because movant was still under the control of the court the attempt to escape was not a sufficient basis for the trial court to dismiss movant's motion.
However, this determination does not require that the cause be reversed. Even if we do not agree with the trial court's basis for dismissal of movant's motion, if the trial court's judgment may properly be sustained on other grounds, the judgment must be affirmed. See Davis v. State, 600 S.W.2d 182, 184 (Mo.App.1980). See also Shepherd v. State, 612 S.W.2d 384, 385 (Mo.App.1981).
Movant's motion as amended asserted two grounds claiming that the convictions should be vacated. His first ground claimed that he received ineffective assistance of counsel in that his attorney "failed to investigate Petitioner's case and call Brandy, a gypsy, as a defense witness in movant's behalf."
In order to have an evidentiary hearing, movant must plead facts, not conclusions, which if true would entitle him to relief; those facts must raise matters not refuted by the files and records of the case; and the matters complained of must have resulted in prejudice to defendant's case. Kearns v. State, 583 S.W.2d 748, 750 (Mo.App.1979).
In Page v. State, 632 S.W.2d 293, 295 (Mo.App.1982), the court ruled that a...
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