State v. Washington, 51275

• Decision Date: 14 February 1966
• Docket Number: No. 2,No. 51275,51275,2
• Citation: 399 S.W.2d 109
• Parties: STATE of Missouri, Respondent, v. Eddie Lee WASHINGTON, Appellant
• Court: Missouri Supreme Court

Page 109

399 S.W.2d 109

STATE of Missouri, Respondent, v. Eddie Lee WASHINGTON, Appellant.

No. 51275.

Supreme Court of Missouri, Division No. 2.

Feb. 14, 1966 Amended on Court's Own Motion Feb. 23, 1966.

Norman H. Anderson, Atty. Gen., Louis C. Defeo, Jr., Asst. Atty. Gen., Jefferson City, for respondent.

Erwin J. Roesel, St. Louis, for appellant, Eddie Lee Washington.

STORCKMAN, Judge.

This is an appeal from an order denying a motion under S.Ct. Rule 27.26, V.A.M.R. to vacate and set aside a conviction of rape and a sentence of imprisonment for thirty-five years. The trial court found from the motion and the files and records of the case that the prisoner was entitled to no relief and denied the motion without a hearing. The defendant is represented by counsel appointed by the trial court to brief and argue the appeal in this court which has been done. The principal contentions on appeal are that the trial court erred in denying the motion without a hearing because the motion stated claims that the defendant was not adequately represented by counsel at his trial, that his confessions were coerced and that such issues could not be determined from the files and records.

The transcript shows that the defendant was indicted and convicted of the offense of forcible rape and his punishment was assessed by the jury. He was granted thirty days additional time to file a motion for new trial. Within the time so allowed, the defendant filed a written waiver of his right to file a motion for new trial and to prosecute an appeal. The waiver was signed by the defendant and his counsel, a member of the staff of the Public Defender of the City of St. Louis who represented him at the trial.

On February 21, 1961, the defendant, accompanied by his counsel, presented himself in court and was sentenced in accordance with the verdict. On December 14, 1964, the defendant filed pro se in the Circuit Court of the City of St. Louis his motion under Rule 27.26 to vacate which he was permitted to file and prosecute as a poor person. The judge that ruled on the motion to vacate was the same judge that presided at the defendant's trial in February 1961.

On December 24, 1964, the trial court denied the defendant's motion to vacate the judgment and sentence because the court was satisfied from its examination of the motion and files and records of the case that the prisoner was not entitled to any relief. In connection with denying the motion, the court filed a memorandum opinion which reviewed the previous prosecution and gave reasons for the court's rulings. Our Civil Rule 73.01 provides that the court in a non-jury case shall upon request prepare and file a brief opinion containing a statement of the grounds of its decision and if requested the court may include its findings upon any of the principal controverted fact issues. A motion to vacate and set aside uner Rule 27.26 is a civil rather than a criminal proceding. State v. Herron, Mo., 376 S.W.2d 192, 196.

Although not requested by a party to the action, the memorandum opinion is property in the record and is quite helpful to the reviewing court. To the extent that it is a statement of the grounds of the decision and constitutes findings on fact issues arrived at from an examination of the files and records in the case, the opinion will be considered by this court. State v. Keeble, Mo., 399 S.W.2d 118 (decided February 14, 1966).

The motion to vacate contains much superfluous and irrelevant material which hinders the search for possible grounds for relief. As the opinion of the trial court states, the person who prepared the motion to vacate for the defendant 'was obviously not accurately informed about the case'. For instance, the defendant asserted in his motion that he did not have a panel of 47 jurors and that he was unable to present an alibi defense. Such allegations were demonstrated to be false by the court files and records of the circuit court and quite properly were not briefed for review in this court. The allegations of the motion and the findings of the trial court's opinion will be mentioned further in connection with the questions presented.

As in other pleadings, the factual allegations of a motion to vacate under Rule 27.26 must be accepted as true in determining if the motion states a claim for relief. State v. Moreland, Mo., 351 S.W.2d 33, 35. If the allegations of a motion under Rule 27.26 are sufficient to state a claim and do not demonstrate further that the motion is patently or conclusively without merit, the movant is ordinarily entitled to a hearing on the issues raised. State v. Pickel and Proffit, Mo., 376 S.W.2d 181; State v. Herron, Mo., 376 S.W.2d 192, 195. No hearing is required, however, if the motion and the files and records of the case show to the satisfaction of the court that the movant is not entitled to any relief. S.Ct. Rule 27.26, V.A.M.R.; State v. King, Mo., 380 S.W.2d 370, 373[4-6], cert. den. 379 U.S. 979, 85 S.Ct. 681, 13 L.Ed.2d 569.

The defendant filed a motion for appointment of counsel to prepare and develop in the circuit court the allegations of his motion to vacate. He charges error in the court's failure to do so citing Powell v. State of Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A.L.R. 527, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733, and Douglas v. State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811. These cases went on certiorari to the Supreme Court of the United States; they involved the right of the accused to counsel at the trial of the criminal charge. They are not controlling in the circumstances of this postconviction procedure. A motion to vacate and set aside a criminal conviction is in the nature of a civil procedure rather than a criminal prosecution and the defendant is not entitled to counsel as a matter of right solely by reason of indigency. State v. Herron, Mo., 376 S.W.2d 192, 196. The trial court did not abuse its discretion in failing to appoint counsel 'to prepare and develop the allegations' of his motion to vacate.

The defendant further contends that the trial court erred in denying his motion to vacate without a hearing 'since charges of inadequate representation by counsel was made' which were not so patently without foundation as to conclusively demonstrate their want of merit. We cannot presume or speculate that Missouri attorneys are incapable or incompetent to handle the defense of a criminal case. The qualification and admission of attorneys to the Bar of Missouri is carefully supervised and controlled by this court. S.Ct. Rule 8. Registration of law students is required. Rule 8.04. An applicant to take the Bar examinations must be a graduate of a law school approved by the Council on Legal Education and Admissions to the Bar of the American Bar Association. Rule 8.03(b). An applicant to register as a law student as well as an applicant to take the Bar examination must stand a searching and meaningful investigation as to character, fitness and general qualifications. Rule 8.07. After the completion of their legal education and training, applicants must pass an examination as to their knowledge of legal subjects prescribed by the Board of Law Examiners and approved by this court. Rules 8.01 and 8.08. Members of the Missouri Bar are also subject to rigid disciplinary procedures. Rule 5. All of this cannot be brushed lightly aside. A convict seeking to set aside his sentence has the burden of alleging and proving that his lawyer, so qualified, rendered legal assistance so 'ineffective' that the accused was not afforded a fair trial in violation of constitutional guaranties. State v. Freedman, Mo., 282 S.W.2d 576, 581. The mere fact of conviction and the bare assertion of 'ineffective assistance' of counsel is not sufficient to carry the burden or to state a claim for relief.

Careful examination of the motion discloses two references to inadequate representation in the defense of the rape charge. One allegation is that when he first saw his court-appointed attorney: 'He [the attorney] did not do very much: asked where I lived, and told me the date I was going to court.' The other reference is as follows: 'The fact that appointed counsel did not even thoroughly investigate the law, facts, and circumstances of the case, but rather sought to induce petitioner to voluntarily plead guilty, did not question nor inquire of petitioner of the manner of the alleged identification which if he had, he could have legally shown it was not admissible because of the manner it was obtained (during petitioner's illegal and unlawful police detention and custody without a warrant), plainly magnifies his ineffectiveness and lack of 'Good Faith' assistance of counsel.' These allegations are mere conclusions which are insufficient to present an issue as to effective assistance of counsel. State v. Cerny, 365 Mo. 732, 286 S.W.2d 804, 807; State v. King, Mo., 380 S.W.2d 370, 376.

The trial court might have properly ruled the issue on that ground alone, but the memorandum opinion further states: 'The case was well defended. The Court recalls that it had the personal attention of the head of the Public Defender Bureau of the City of St. Louis. He designated a younger member of his staff to try the case, as a matter of his considered strategy and judgment, hoping thereby to minimize the penalty that might be imposed by a jury if defendant be found guilty. Defendant and his counsel were well satisfied with the verdict at the time it was rendered.' In Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 7 L.Ed.2d 473, the court stated: 'What has been said is not to imply that a movant must always be allowed to appear in a district court for a full hearing if the record does not conclusively and expressly belie his claim,...