State v. Lasiter, 10477

• Decision Date: 03 February 1978
• Docket Number: No. 10477,10477
• Citation: 562 S.W.2d 751
• Parties: STATE of Missouri, Plaintiff-Respondent, v. Homer Lee LASITER, Defendant-Appellant.
• Court: Missouri Court of Appeals

Page 751

562 S.W.2d 751

STATE of Missouri, Plaintiff-Respondent, v. Homer Lee LASITER, Defendant-Appellant.

No. 10477.

Missouri Court of Appeals, Springfield District.

Feb. 3, 1978.

Motion for Rehearing or Transfer Denied Feb. 28, 1978.

Application to Transfer Denied April 10, 1978.

Lloyd R. Henley, Springfield, for defendant-appellant.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.

Before STONE, P. J., and HOGAN and FLANIGAN, JJ.

FLANIGAN, Judge.

Prosecuted as a second offender, § 556.280, ¹ defendant Homer Lee Lasiter was found guilty by a jury of the crime of robbery in the first degree, § 560.120, and he was sentenced by the court to 15 years' imprisonment. The robbery was committed on July 23, 1976, and the trial was held on September 7, 1976. Defendant appeals.

Defendant's first "point relied on" is that the trial court erred in allowing the defendant to be tried under the Second Offender Act (§ 556.280) "for the reason that the court made no finding on whether defendant was represented by counsel at a prior conviction, which was a matter at issue, and a finding of representation or waiver thereof is a requirement for use of the act's provisions."

The information, in addition to charging the robbery, alleged that on November 8, 1968, the defendant was convicted in the Circuit Court of Christian County, Missouri, of a felony (grand stealing), an offense punishable by imprisonment in the penitentiary, was sentenced to three years' imprisonment and was subsequently placed on probation for three years.

Outside the hearing of the jury the court heard the evidence in support of the allegation of the prior conviction. That evidence included certified records of the Christian County proceeding. The recitals in those records included:

"Now on the 8th day of November, 1968 comes the State of Missouri by Prosecuting Attorney, and comes also the defendant in proper person in open court, and whereupon the Court informed the defendant of his right to counsel and explained wherein the exercise of said right might be of benefit to the defendant and appoints Phillip R. Garrison, an attorney, to act as counsel for the defendant and notifies said counsel that a reasonable time will be allowed in which to prepare the defense. Whereupon, after this defendant has had an opportunity and reasonable time to consult with his said counsel and with a friend and both defendant his said counsel being present in open court, defendant is duly arraigned and enters a plea of guilty to the charge of Grand Stealing, a felony, and the Court states to the defendant that he has voluntarily entered his plea of guilty. . . ."

During the hearing with respect to the prior conviction the defendant, as a witness for himself, testified that he "didn't believe that he remembered" discussing the matter with his attorney prior to entering the plea. He stated that he did talk to the attorney after he entered the plea. On cross-examination by the prosecutor he admitted that "today was the first time" he had ever said anything about not talking to the attorney until after the plea was entered.

After hearing the evidence with respect to the prior conviction, the court made formal findings of fact to the effect that the defendant was convicted on November 8, 1968, in the Circuit Court of Christian County, Missouri, of the crime of grand stealing, an offense punishable by imprisonment in the penitentiary, and that the defendant was thereupon sentenced and placed on probation. The court also found that defendant was a second offender within the meaning of § 556.280 and that the case would proceed under that statute.

"(T)he important requirement for the protection of a defendant is that the proof (the evidence) as to prior convictions sufficiently establishes those things required for the Second Offender Statute to be applicable, viz: that defendant was convicted of a prior offense punishable by imprisonment in the penitentiary; that he was sentenced therefor; and that he was subsequently placed on probation, paroled, fined or imprisoned therefor." State v. Blackwell, 459 S.W.2d 268, 272(3) (Mo.banc 1970). (Emphasis in original) The court also held that where the necessary proof has been made, "specific recitals," although desirable, "are not an absolute prerequisite" to the disposition of the case pursuant to the statute and that the court's order reciting a finding of the prior conviction and the applicability of the statute is sufficient. "Such an order implies specific findings in accordance with the ultimate finding and conclusion stated." ²

The findings made by the court in the case at bar are more than sufficient to satisfy the holding in Blackwell.

The argument portion of defendant's brief contains an assertion that is probably beyond the scope of his first point. There defendant complains that the trial court failed to make a specific finding with regard to the adequacy of the manner in which defendant was represented by counsel in connection with the prior conviction. Defendant asserts that it was incumbent upon the trial court to make an inquiry into that issue and to make a specific finding thereon. That defendant's position is untenable is demonstrated by the following authorities: State v. Hale, 400 S.W.2d 42 (Mo.1966); State v. Goff, 449 S.W.2d 591 (Mo.banc 1970); State v. Johnson, 504 S.W.2d 23 (Mo.1973); State v. Dittman, 542 S.W.2d 72 (Mo.App.1976). Each of these cases involved a defendant who was prosecuted as a second offender.

In Hale the defendant claimed that the state's showing of the prior conviction was insufficient because the defendant pleaded guilty without the assistance of counsel. The record with regard to the prior conviction showed that an attorney was present but it did not specifically say that he represented the defendant. Other portions of the record concerning the prior conviction implied that the attorney did represent the defendant. The court said, in 400 S.W.2d at p. 46:

"Then upon this record there is the manner in which this problem was presented, this is not an appeal from the 1953 conviction, it is not a proceeding in habeas corpus and it is not a motion to vacate the judgment and sentence under Criminal Rule 27.26, V.A.M.R. Hale was here being tried for the principal and substantive offense of robbery in the first degree and it is proposed in this collateral, tangentical (sic) manner to attack and invalidate a 1953 judgment and sentence. Of course a void judgment is subject to collateral attack but under a 27.26 proceeding the motion to vacate must allege facts, not mere conclusions, which if true would establish illegality of the judgment and mere failure to appoint counsel upon a plea of guilty is not sufficient in itself for that purpose."

The court held that on "this record with the question presented in this manner" there was no showing that the prior conviction was invalid.

In Goff the court pointed out that the record of the prior conviction was regular on its face and "proper in form and substance." The court said that it must assume, on the record before it, that the defendant had not attacked the prior conviction "by utilizing any of the available remedies such as a motion under (Rule 27.26) or a habeas corpus proceeding, or if he did so his effort was unsuccessful." The record of the prior conviction showed "a waiver of counsel as well as other elements relating to the defendant's right to counsel."

In 449 S.W.2d at p. 597 the court said:

"There is no violation of the defendant's constitutional right to legal counsel apparent on the face of the judgment. On the contrary, compliance and observance of the right is shown. By his failure to take timely advantage of the various remedies provided to set aside the judgment for invalidities not apparent on the face of the judgment, the defendant has waived any such defects as a ground of objection to the admission of the certified copies of the judgment as evidence of a prior conviction." (Emphasis added)

In Johnson the record with respect to the prior conviction reflected a "waiver of right to counsel." The court rejected defendant's contention that he had been denied counsel at the prior conviction and held that the record of the prior conviction was admissible and sufficient. Citing Goff, the court held that "furthermore" defendant's failure to take timely advantage of the various remedies available for setting aside the prior conviction for invalidities not apparent on the face of its record constituted a waiver of such non-apparent invalidities as a ground for objection to the admission of the record of the prior conviction.

In Dittman the record of the prior conviction reflected a waiver by defendant of "trial by jury and defense by counsel." Defendant attacked that record as insufficient on the ground that it failed to show that he "knowingly and voluntarily waived his constitutional rights." The court, citing Goff, rejected defendant's contention as "too feeble to stand." The court said:

"We find no irregularities or deprivation of defendant's constitutional rights on the face of the certified copy of the judgment of defendant's prior § 564.440 conviction," 542 S.W.2d at p. 74. (Emphasis added) The record of the prior conviction was held to be sufficient for invoking the Second Offender Act.

It is true that in State v. Thomas, 452 S.W.2d 160, 163(7-8) (Mo.1970) the trial court, during the trial of the second offense and outside the hearing of the jury, heard evidence from defendant which attacked the adequacy of his representation by counsel at the time of the prior conviction. The trial court made an express finding that the challenged representation was adequate. The supreme court held that the findings of the trial court were proper and were not erroneous. But the court did not say that the trial court had a duty to receive evidence on the issue and to make...