State v. Engberg
| Decision Date | 14 June 1965 |
| Docket Number | No. 2,No. 51095,51095,2 |
| Citation | 391 S.W.2d 868 |
| Parties | STATE of Missouri, Respondent, v. Roy Lee ENGBERG, alias Walter Johnson, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, Howard L. McFadden, Asst.Atty. Gen., for respondent.
No appearance for appellant.
On May 9, 1963, this defendant was sentenced to a term of life imprisonment for first degree murder in Division No. 8 of the Circuit Court of Jackson County. He had been tried for that crime in February, 1963. On May 10, 1963, the defendant was sentenced in Division No. 9 of that court to a term of twenty years for first degree robbery. He had been tried for that crime in April, 1963. The first judgment was affirmed by this court in an opinion appearing at 376 S.W.2d 150; the second judgment was likewise affirmed in an opinion appearing at 377 S.W.2d 282.
On September 8, 1964, there was filed in Division No. 8 of that court defendant's 'Motion to Vacate Sentence and Judgment * * *.' In certain respects the motion seems to constitute an attack upon both judgments. We hold that Criminal Rule 27.26, V.A.M.R. does not contemplate any such broadside attack, and that a motion to vacate filed pursuant to that rule must be confined to an attack upon a single judgment and sentence. The wording of the rule clearly indicates this, since it frequently refers to the 'sentence' and the 'judgment' in the singular. Indeed, endless confusion would be the likely result both in trial and appellate courts if anything more should be permitted. The trial court here (Division No. 8) considered this motion as one solely attacking the murder conviction and entered on September 8, 1963, an order which was in part as follows:
'I have examined the Motion To Vacate, and am overruling said Motion without granting the Petitioner a hearing thereon, as the Motion on its face discloses that no claim for relief was stated therein, and the Petition does not state facts which would entitle the Petitioner to vacation or correction of his sentence.'
The 'Notice to Appeal' filed thereafter contains much surplusage and is argumentative, but it will serve as a sufficient notice of appeal from the order and judgment ruling on the motion to vacate the murder conviction, that being the only matter ruled by the trial court. If the defendant wishes to file a separate motion to vacate the conviction for robbery he may do so. Neither the trial court's ruling nor this opinion precludes him from doing so.
In this motion defendant alleges, in substance, that after his arrest in Denver, Colorado, on a murder warrant from Missouri, he consulted with 'his parole officer' and signed a waiver of extradition; that after his return to Kansas City he was interrogated by detectives but that his requests to be allowed to confer with an attorney were ignored; that he later requested the magistrate to appoint counsel for him to protect his rights at the preliminary hearing, this being a capital case, but that the magistrate declined to do so, telling him that he would have counsel in the Circuit Court; that his constitutional rights were thereby violated, and that 'there is evidence in the case that would have prevented the prosecution * * *,' if he had then had counsel; that the prosecutor 'deliberately and willfully suppressed evidence and facts'; that an illegal search and seizure was 'committed' by the police at a motel room previously rented by him and that 'exhibits' were gathered therefrom, the police entering with the approval of the proprietor; that his conviction of murder was 'blindly' affirmed on appeal under the felony-murder doctrine which he says was 'fantastic,' and with no support in the evidence. Defendant further asserts that he is innocent of the crime. Basically defendant seems to rely upon a denial of due process under the federal decisions.
Upon the filing of the notice of appeal, the trial court entered an order permitting the appeal in forma pauperis and granting defendant a free transcript. In the lengthy notice of appeal complaint is made that Judge Buzard should have disqualified himself from ruling on the present motion, he having presided at the trial. We disregard the assertion entirely, for no steps whatever were taken to disqualify the judge and normally he would be the proper one to pass upon the motion. In that notice defendant further emphasizes that he is attacking both convictions, but that one of them has been ignored. We have already ruled on that point.
The court offered to appoint counsel for the defendant at his arraignment on July 16, 1962; he first declined the offer and entered pro se a plea of not guilty, but later he relented and counsel was appointed for him on that day. This was approximately seven months before the trial. He was represented both at the trial and on appeal by three attorneys.
We have considered on several occasions, and recently, the contention now made that defendant was denied due process by the failure to appoint counsel for him at the preliminary hearing. In State v. Worley, Mo., 383 S.W.2d 529, at loc. cit. 532-533, we said:
Even more recently the question has been re-examined in the case of State v. Phelps, Mo., 384 S.W.2d 616, 619-620, where the Court said: ...
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State v. McClain
...held under the Missouri practice is not a deprivation of due process or of any other constitutionally protected right. State v. Engberg, Mo., 391 S.W.2d 868; State v. Phelps, Mo., 384 S.W.2d 616; State v. Gagallarritti, Mo., 377 S.W.2d 298; State v. Worley, Mo., 383 S.W.2d 529; State v. Tur......
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State v. Washington, 51275
...intended. Furthermore, a motion to vacate under Rule 27.26 must be confined to an attack on a single judgment and sentence. State v. Engberg, Mo., 391 S.W.2d 868, 869. The defendant's brief on appeal further asserts that the trial court erred in denying his motion to vacate 'since the alleg......
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Mahurin v. State
...not one for review on collateral attack under Supreme Court Rule 27.26. State v. Howe, Mo.Sup., 364 S.W.2d 546, 547(3); State v. Engberg, Mo.Sup., 391 S.W.2d 868, 871(8); State v. Holland, Mo.Sup., 412 S.W.2d 184, 185(1, and that, in any event, the issue was not subject to review under Rule......
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State v. Durham, 52213
...also State v. Gagallarritti, Mo., 377 S.W.2d 298; State v. Small. Mo., 386 S.W.2d 379; State v. Phelps, Mo., 384 S.W.2d 616; State v. Engberg, Mo., 391 S.W.2d 868; State v. Turley, Mo., 416 S.W.2d 75. Defendant entered no plea of guilty. He made no statement and took no position at the prel......