State v. Batek

• Decision Date: 24 August 1982
• Docket Number: No. 43061,43061
• Citation: State v. Batek, 638 S.W.2d 809 (Mo. App. 1982)
• Parties: STATE of Missouri, Plaintiff-Respondent, v. David BATEK, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 809

638 S.W.2d 809

STATE of Missouri, Plaintiff-Respondent, v.David BATEK, Defendant-Appellant.

No. 43061.

Missouri Court of Appeals,

Eastern District,

Division Four.

Aug. 24, 1982.

Paul E. Ground, Ellisville, for defendant-appellant.

John Ashcroft, Atty. Gen., Jefferson City, George Westfall, Pros.Atty. Clayton, for plaintiff-respondent.

PUDLOWSKI, Judge.

DefendantDavid Michael Batek was convicted of four counts of passing insufficient funds checks with intent to defraud, under § 561.460 RSMo (1978)(since repealed).We affirm.

The convictions were based upon four checks cashed during December, 1978, at the Jay Bee Liberty Store in Bridgeton, Missouri.One of the checks, for $300, was drawn on defendant's personal account at Mark Twain State Bank.The others, for $150, $135, and $120, were drawn on defendant's business account (in the name of a sole proprietorship called Satellite Electronics) at the American Heritage Bank in Granite City, Illinois.

At the trial, the state called a clerk at the Jay Bee Liberty Store, who testified that she remembered defendant cashing each of the four checks at the store over a period of several weeks.The store's operations manager was also called as a witness; he testified that he had contacted defendant by telephone when the checks were first returned.According to the manager, defendant had promised to come in and make good on the checks, but failed to show up at the time agreed upon.

The state also introduced bank records showing that the balance in defendant's personal account never exceeded 66 cents during the month of December, 1978, and that the balance in his business account was never higher than $131.92.

Defendant based his defense upon the lack of any intent to defraud, maintaining that he had thought his bank balance to be sufficient at the time that he wrote each of four checks.He testified that in late 1978he received a $4270 check from an out-of-state customer, which he deposited in his business account.He then wrote a check for $680 on his business account and deposited it in his personal account.Having made these deposits, he proceeded to write checks on both accounts.When the original deposit of $4270 failed to clear, numerous checks drawn by appellant also bounced.

The defendant also maintained that some of his blank checks had been stolen by his girlfriend, Jacqueline Johnson, and that she had been forging his signature and cashing them without his knowledge.He testified that the signature on the $300 check was not his.He admitted writing the other three checks but maintained that he was unaware at the time of any deficiency in his account.

The defendant did not introduce his checkbooks into evidence.He testified that the checkbook for his business account had been turned over to the Maplewood Police, and that his personal checkbook had been lost when he was evicted from his apartment.

The jury found the defendant guilty on all four counts and he was sentenced to one year in the county jail and placed on probation.He appeals.

Defendant acknowledges that his motion for new trial was filed forty days after the date of the verdict, well beyond the maximum 15-day filing period and 10-day extension permitted by Rule 29.11(b).Normally his failure would preclude any consideration of the points raised by defendant, since nothing has been preserved for our review.However, defendant's counsel(who was also trial counsel) asserts that his own failure constituted ineffective assistance of counsel, amounting to a denial of due process and entitling his client to a new trial.¹The issue of ineffective assistance of counsel is not ordinarily reviewable on direct appeal, being better suited to disposition after an evidentiary hearing held under the provisions of Supreme Court Rule 27.26.State v. Locke, 587 S.W.2d 346, 350(Mo.App.1979).However, where the record on appeal presents sufficient facts so as to make a meaningful review possible, claims of ineffective assistance of counsel may properly be considered on direct appeal.State v. Armstrong, 624 S.W.2d 36, 40(Mo.App.1981);State v. Hobbs, 612 S.W.2d 387, 388(Mo.App.1981);State v. Hall, 525 S.W.2d 364, 366(Footnote 1)(Mo.App.1975).Because the claim of ineffective assistance in this case is directed only to counsel's admitted failure to file a timely motion for new trial, and because counsel does not offer any excuse for his failure, there is no dispute of fact that would necessitate a further evidentiary hearing.On this state of the record, we may properly go on to consider the merits of defendant's argument.

In order to prevail on a claim of ineffective assistance of counsel, the defendant must show 1) that counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and 2) that the client was thereby prejudiced.Seales v. State, 580 S.W.2d 733, 736(Mo. banc 1979).The fact of untimely filing, by itself, does not compel reversal; it is also essential that the defendant show some error by the trial court which could have resulted in a successful appeal, had the motion been filed on time.Barkwell v. State, 619 S.W.2d 511, 512(Mo.App.1981);Rodgers v. State, 610 S.W.2d 25, 29(Mo.App.1980).Counsel cannot simply "admit" ineffectiveness and assure his client a new trial.He may admit that he has done or failed to do a particular act, but only the court can determine as a matter of law whether that act or omission actually prejudiced the client.We are therefore constrained to examine the record of the trial below in order to determine whether the actions of counsel have precluded the defendant from perfecting an otherwise meritorious appeal.

Defendant has raised four issues which, he maintains, would compel reversal.First, appellant contends that the trial court reporter harassed the defendant at trial, delayed preparation of the transcript, and failed to prepare a complete and accurate transcript.Second, defendant argues that the trial court erred in refusing to allow him to testify to a hearsay statement allegedly made by Jacqueline Johnson, in which she admitted having forged some of defendant's checks.Third, defendant alleges the discovery of new evidence that would tend to prove his innocence on retrial.Fourth, defendant maintains that the trial court failed to remedy certain prejudicial conduct of the prosecutor.We have examined each of these contentions and all are without merit.

The first contention, alleging prejudicial conduct by the court reporter, is not supported by the transcript.The defendant states that the reporter made frequent comments expressing irritation at the defendant's failure to speak up during...