State v. Smith, 58658

• Decision Date: 16 February 1993
• Docket Number: No. 58658,58658
• Parties: STATE of Missouri, Respondent, v. Ricky SMITH, Appellant. Ricky SMITH, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 209

849 S.W.2d 209

STATE of Missouri, Respondent, v. Ricky SMITH, Appellant.

Ricky SMITH, Appellant, v. STATE of Missouri, Respondent.

No. 58658.

Missouri Court of Appeals,

Eastern District,

Division Three.

Feb. 16, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied March 17, 1993.

Application to Transfer Denied

April 20, 1993.

Raymond L. Legg, Columbia, for appellant.

William L. Webster, Atty. Gen., Robert Alan Kelly, Asst. Atty. Gen., Jefferson City, for respondent.

GARY M. GAERTNER, Presiding Judge.

Appellant, Ricky Smith, appeals a bench tried conviction for failure to appear, RSMo § 544.665.1 (1986). We affirm.

On April 2, 1987, appellant was tried by a jury in the Circuit Court of Jefferson County for assault in the first degree and armed criminal action. Appellant was convicted on both counts. The court ordered a presentence investigation, set bond for appellant, and scheduled formal sentencing for May 19, 1987. Shortly thereafter, appellant was released on bond.

On April 24, 1987, appellant filed a Motion for New Trial or Reduction of Sentence or Judgment of Acquittal. On May 5th, attorney for appellant filed a notice to call up the April 24th motion for hearing on June 11, 1987. The Certificate of Service contained with the notice stated:

A copy of this notice was mailed to the office of the prosecuting attorney for Jefferson County and to defendant at his last known address, 715 South First Street, Pacific, Missouri, this 4th day of May, 1987.

On June 11, 1987, appellant's sentencing and hearing on his motions were called. Although counsel for both parties was present, appellant failed to appear. The court issued a capias warrant and set bond at $500,000.00.

Appellant was arrested in Peoria, Illinois on August 23, 1988, some 439 days later, on the capias warrant. He was extradited back to Missouri and sentenced for the assault and armed criminal action convictions approximately a month later. ¹

Following a bench trial on the failure to appear charge, appellant was found guilty on May 16, 1990, and sentenced to four years to be served consecutively with the sentences for assault and armed criminal action.

On October 12, 1990, appellant filed a pro se Rule 29.15 motion for post-conviction relief. A second pro se motion was filed in early November. Counsel was appointed and said counsel filed an amended Rule 29.15 motion on January 11, 1991, alleging ineffective assistance of counsel and denial of due process. An evidentiary hearing was held on November 26, 1991. On January 23, 1992, Findings of Fact and Conclusions of Law were issued by the motion court denying appellant's motion for post-conviction relief. This consolidated appeal followed.

Appellant raises six points in his appeal. We will address them in the order raised.

First, appellant claims trial court error for overruling appellant's motions for judgment of acquittal at the close of the State's evidence and at the close of all evidence. Appellant asserts his right to due process was violated in that there was insufficient evidence to establish he had received notice that his sentencing date was changed. Additionally, appellant argues the evidence was inadequate to show his failure to appear on June 11th was willful. ²

It is a well-accepted principle that, upon review, the judgment rendered in a court-tried case will be upheld unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Trenton Trust Co. v. Western Sur. Co., 599 S.W.2d 481, 483 (Mo. banc 1980). Therefore, we will consider only the facts and inferences favorable to the prevailing party. St. Charles County v. McPeak, 730 S.W.2d 611, 612 (Mo.App., E.D.1987). In so doing, we find no error on this point.

As pointed out in the recitation of facts, the Certificate of Service clearly stated that a copy of the notice requesting a hearing on appellant's motion, and thus changing the date of sentencing, was sent to appellant's last known address. "In the absence of evidence to the contrary there is a rebuttable presumption that a written certificate by counsel making service that papers have been mailed to named parties at an address certain speaks the truth, i.e., that the papers were mailed to the parties named, at the address given, and that the attorney entertained the belief in good faith that the address was in fact the proper address of the parties named." Zurheide-Hermann, Inc. v. London Square Dev. Corp., 504 S.W.2d 161, 165 (Mo.1973). Therefore, relying on the Certificate of Service, a rebuttable presumption of receipt of said notice was created.

Except for his testimony to the contrary, appellant provided no evidence to rebut this presumption. Because of this lack of proof, appellant's receipt of the notice is assumed. ³

Appellant also argues there was a lack of sufficient evidence to indicate that his failure to appear on June 11th was willful. Willfulness need not be proved by direct evidence, but is generally shown through circumstantial evidence. State v. Street, 735 S.W.2d 371, 372 (Mo.App., W.D.1987). Here, we find both direct and circumstantial evidence of appellant's intent to be absent from court on June 11, 1987. At the sentencing hearing for the assault and armed criminal action convictions, appellant indicated that his absence on June 11, 1987, was intentional. In response to questioning, appellant stated: "I have come to this courtroom every time I was supposed to except for the date I was supposed to be sentenced...." This statement is direct proof that appellant knowingly avoided the sentencing hearing. Additionally, the fact that appellant's whereabouts only came to light some 439 days after the sentencing date when appellant was arrested by authorities in another state provides fairly strong circumstantial evidence of appellant's intent to avoid sentencing. Point denied.

For his second point, appellant alleges error in the overruling of his motion to dismiss. Appellant contends that more than 180 days elapsed between his request for prompt disposition of the charge and the trial itself. Therefore, asserts appellant, dismissal was required under the Uniform Mandatory Disposition of Detainers Act (hereinafter "UMDDA"). RSMo §§ 217.450-217.485.

However, in order for appellant to obtain the protection of the UMDDA, a detainer must have been filed against him. See RSMo § 217.450, Hicks v. State, 719 S.W.2d 86, 90 (Mo.App., S.D.1986); State v. Howell, 818 S.W.2d 681, 682-3 n. 1 (Mo.App., W.D.1991). Appellant acknowledges in his brief that at his hearing on the failure to appear charge, both parties stipulated to the fact that no detainer had been filed in this matter. As such, the UMDDA does not apply and this point is denied.

Appellant next suggests the trial court erred in overruling his motion to dismiss as this denied him his right to a speedy trial and due process. Appellant argues that the nineteen-month delay between his arrest and trial was prejudicial, causing him mental hardship as well as the loss of a defense witness.

A criminal defendant's right to a speedy trial guarantees that the State will move quickly to assure the defendant of early and proper disposition of the crimes with which he is charged. State v. Loewe, 756 S.W.2d 177, 181 (Mo.App., E.D.1988). Missouri utilizes a balancing test to determine the extent of the prejudice, if any, that the delay caused. State v. Raine, 829 S.W.2d 506, 512 (Mo.App., W.D.1992). There are four factors to this test which must be considered on a case-by-case basis: 1) the length of the delay; 2) the reason for the delay; 3) the defendant's assertion of the right; and 4) the prejudice to the defendant. Id. Applying these factors to the facts before us, we find no prejudicial delay.

Regarding the first factor of the balancing test, the length of delay, we should first note "the length of delay is measured from the time defendant becomes an 'accused,' either by indictment or when he is actually restrained by arrest and charged." State v. White, 689 S.W.2d 699, 702 (Mo.App., E.D.1985). Appellant contends his arrest in Illinois in August of 1988 triggered the running of time on his speedy trial claim. However, as respondent points out, that arrest had nothing to do with the subsequent failure to appear charge and conviction from which this appeal is taken. Rather the August, 1988, arrest charged appellant as a fugitive from justice on his assaults and armed criminal action convictions.

The formal information charging appellant with failure to appear was not filed until June 27, 1989. As the trial on such charge was held on March 16, 1990, there was only a period of eight and one-half months between the information and trial, not the nineteen-month delay espoused by appellant.

Although we find the actual delay in the process here to be much shorter than that asserted by appellant, it is generally accepted that any delay greater than eight months is presumptively prejudicial. Thus, we are required to consider the remaining three factors in the balancing test. See, State v. Robinson, 696 S.W.2d 826, 831-32 (Mo.App., W.D.1985).

The next point under the balancing test calls for consideration of the reason for the delay. Although docket entries indicate the trial was originally set for November 27, 1989, for some unexplained reason it was later reset for March 16, 1990. Respondent admits that though neither party was able to point to specific actions of the other which caused the delay here, as the ultimate duty to bring an accused to trial rests on the State, State v. Bohannon, 793 S.W.2d 497, 504 (Mo.App., S.D.1990), this point must weigh slightly against respondent.

The third factor to consider here involves a defendant's assertion of his right to a speedy trial. Appellant recites a long chronology of events attempting to display each as an assertion of his right to a speedy trial. These...