State v. Frey

Decision Date12 May 1969
Docket NumberNo. 1,No. 53668,53668,1
Citation441 S.W.2d 11
PartiesSTATE of Missouri, Appellant, v. William Dean FREY, Respondent
CourtMissouri Supreme Court

Norman H. Anderson, Atty. Gen., Walter W. Nowotny, Jr., Asst. Atty. Gen., Jefferson City, for appellant.

H. K. Stumberg, St. Charles, for respondent.

STORCKMAN, Judge.

This is an appeal by the State of Missouri from an adverse order and judgment in a proceeding under S.Ct. Rule 27.26, V.A.M.R. The Circuit Court of St. Charles County set aside the sentence of the prisoner, William Dean Frey, and ordered his discharge.

On October 22, 1963, the prisoner, herein sometimes referred to as the defendant, was found guilty of robbery in the first degree. The court found that the defendant was a second offender and assessed his punishment at ten years imprisonment. The defendant's court-appointed counsel filed a motion for new trial which was argued and overruled on November 19, 1963, and the defendant was sentenced to ten years in the custody of the Department of Corrections. No notice of appeal was filed in the time provided by law and the defendant was imprisoned in accordance with the sentence imposed.

On June 20, 1967, the defendant filed in the circuit court this motion under Rule 27.26 to set aside the sentence and judgment entered November 19, 1963. An evidentiary hearing was held on the defendant's 27.26 motion on December 15, 1967, and January 9, 1968. On February 5, 1968, the trial court entered its findings of fact and conclusions of law sustaining the defendant's motion and discharging him. This appeal by the state followed.

Evidence at the hearing on the 27.26 motion was quite extensive and was liberally admitted. Certain issues were ruled against the defendant in that the court found: the defendant was advised of his right to counsel and was not denied his constitutional rights in that respect; his confession was not the result of force or coercion but was voluntary; the defendant was not deprived of his right to confront the witnesses against him; he personally waived a preliminary hearing, went to trial without objection and is not entitled to complain in that regard; there were reasonable grounds for the defendant's arrest, and the search of the house in which he was arrested was consented to by the defendant's father whose home it was; the court records show that the defendant was formally arraigned in accordance with S.Ct. Rule 25.04 on April 22, 1963, contrary to his contention. No further contention is made regarding these findings on this appeal.

The sentence of November 19, 1963, was vacated and the defendant was ordered discharged on the court's finding that the defendant was an indigent person and wanted to appeal his conviction and requested his counsel to file a notice of appeal, but his counsel failed to do so, and the defendant was thereby denied the effective assistance of counsel and his right of appeal in violation of equal protection provisions in the federal and state constitutions. Appellate counsel did not represent the defendant at his trial. Both were appointed by the court.

The testimony of the defendant and his trial attorney established that the defendant desired an appeal and requested his attorney to appeal the conviction. The appointed attorney had practiced law for seventeen years and had defended 'hundreds' of criminal cases. The reasons he assigned for not taking the appeal were that he was of the opinion there was no error in the case, that the sentence was not excessive and the defendant might not fare so well if he got a new trial, that as many as twenty prosecutions for armed robbery could be filed against the defendant and his brother growing out of the holdup of the tavern in Old Monroe and its patrons; he felt the other charges would not be brought if the defendant did not appeal and that it was 'to the best interest of Mr. Frey that he take this sentence.' These reasons are plausible and demonstrate competent consideration of the client's interest. However, the attorney did not advise his client of his decision and the defendant continued to write the attorney and the clerk of the supreme court inquiring about the appeal in his case.

The defendant asserts that this is a criminal proceeding and that the state's right to appeal, limited by §§ 547.200 and 547.210, RSMo 1959, V.A.M.S., does not include an appeal in such a case. Subsection (a) of Rule 27.26 states that the remedy is intended to provide the exclusive procedure for the prisoner to attack his sentence and that it includes all relief by habeas corpus when used to attack a sentence plus relief not available by habeas corpus. The subsection further designates the remedy 'an independent civil action' which is governed by the rules of civil procedure insofar as they are applicable. Subsection (j) of the rule designates an order sustaining or overruling a motion under the rule a final judgment for purposes of appeal by the prisoner or by the state 'as in a civil case as authorized by § 512.020, RSMo 1959, V.A.M.S.' The rule does not extend or enlarge the right of appeal in violation of Art. V, § 5, of the Missouri Constitution, 1945, V.A.M.S. The appeal of the state is duly authorized. State v. Parker, Mo., 413 S.W.2d 489, 490(1), cert den. 390 U.S. 906, 88 S.Ct. 823, 19 L.Ed.2d 874; State v. Todd, Mo., 433 S.W.2d 550, 553(1, 2); State v. Nolan, Mo., 418 S.W.2d 51, 52(1); State v. Edmondson, Mo., 438 S.W.2d 237; State v. Gullett, Mo., 411 S.W.2d 227, 228(3); State v. Washington, Mo., 399 S.W.2d 109, 111(1). The respondent's motion to dismiss the appeal, ordered taken with the case, is overruled.

Next the defendant contends the order of the trial court setting aside the sentence and discharging the defendant should be affirmed because relief by way of an appeal has been refused by this court and the availability of an appeal as an effective remedy should be considered as res adjudicata. On July 27, 1967, the defendant filed in this court an application for a writ to require the trial court to hear the 27.26 motion which had been filed on June 20, 1967. This is cause No. 53,259. From our files it appears that the trial court found in the 27.26 proceeding under date of August 28, 1967, that the defendant had been denied his right to a direct appeal as the result of counsel's failure to file a notice of appeal within the time provided by law and the trial court granted the defendant fifteen days to file such notice of appeal. Within the time allowed, counsel for the defendant filed a notice of appeal, a copy of which was forwarded to the clerk of the supreme court together with a certified copy of the circuit court order of August 28 and they were filed as cause No. 53,314. On October 9 orders were made in this court disposing of each of the cases. In file No. 53,314 the appeal from the judgment of conviction was dismissed as not being timely filed. In file No. 53,259 this court entered its order denying defendant's petition for a writ of habeas corpus or, in the alternative, for a writ of mandate, and on its own motion directed the circuit court to take further action in the 27.26 proceedings because the circuit court by its order of August 28, 1967, did not 'make proper final disposition of the petitioner's motion to vacate and set aside said sentence and judgment'. Thereafter, the circuit court conducted a plenary hearing and rendered the judgment from which this appeal was taken.

The orders entered by this court on October 9, 1967, in No. 53,259, William Frey v. State of Missouri, and No. 53,314, State of Missouri v. William Frey, were not a disposition on the merits and are not res adjudicata of the issues now before the court. This is apparent on the face of the records in this court. The defendant's contention is denied.

The state concedes that the defendant is an indigent person and as such is entitled to the effective assistance of appointed counsel in the trial court and on appeal and a failure to provide such assistance is a denial of constitutional rights under the Sixth and Fourteenth Amendments of the Constitution of the United States. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 83 A.L.R.2d 733; Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811; Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493; ...

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24 cases
  • McCrary v. State
    • United States
    • Missouri Court of Appeals
    • September 23, 1975
    ...1. Involuntary abandonment of right to appeal. Noble v. State, 477 S.W.2d 417 (Mo.1972) (remand for evidentiary hearing) State v. Frey 441 S.W.2d 11 (Mo.1969) (resentence and time for appeal to run from resentence) 2. Insufficient findings of fact and conclusions of law. Thomas v. State, 46......
  • Lansdown v. Swenson
    • United States
    • U.S. District Court — Western District of Missouri
    • May 20, 1971
    ...denies the defendant the effective assistance of counsel as a matter of law. For a strikingly similar factual situation, see State v. Frey, 441 S.W. 2d 11 (Mo.1969), in which the court said, l. c. 14: `The state further concedes that Frey was unconstitutionally deprived of his direct appeal......
  • Tucker v. State, 57005
    • United States
    • Missouri Supreme Court
    • June 12, 1972
    ...generally: Johnson v. State, Mo., 458 S.W.2d 713; Holbert v. State, Mo., 439 S.W.2d 507; Jones v. State, Mo., 445 S.W.2d 311; State v. Frey, Mo., 441 S.W.2d 11; Green v. State, Mo., 451 S.W.2d 82; Rodriquez v. United States, 395 U.S. 327, 89 S.Ct. 1715, 23 L.Ed.2d 340; Application of Tomich......
  • Johnson v. State
    • United States
    • Missouri Supreme Court
    • September 14, 1970
    ...and setting aside judgment and sentence under rule 27.26(i) does not necessarily require the discharge of the prisoner. State v. Frey, Mo., 441 S.W.2d 11, 15. The point is ruled against Appellant additionally claims that he should be discharged or granted a new trial for the further reason ......
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