Tomich v. State, 41970.

• Decision Date: 07 October 1980
• Docket Number: No. 41970.,41970.
• Citation: 607 S.W.2d 811
• Parties: Walter TOMICH, Movant-Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

607 S.W.2d 811

Walter TOMICH, Movant-Appellant, v. STATE of Missouri, Respondent.

No. 41970.

Missouri Court of Appeals, Eastern District, Division Three.

October 7, 1980.

Henry J. Rieke, St. Louis, for movant-appellant.

John D. Ashcroft, Atty. Gen., Paul Robert Otto, Jan Bond, Asst. Attys. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.

CLEMENS, Senior Judge.

Movant, Walter Tomich, (hereafter "defendant") appeals the denial of his Rule 27.26 motion after an evidentiary hearing. He sought to set aside three concurrent thirty-five year sentences based on pleas of guilty. Two of these motions were on his guilty pleas to rape and sodomy; the third was on his guilty plea to robbery. By his brief, defendant challenges only the rape and sodomy convictions.

Defendant now contends in effect that the evidence was insufficient to support the denial of his Rule 27.26 motion. By this approach, defendant would place the burden of proof on the state; it is not. By Rule 27.26(f) defendant had the burden of establishing his grounds for relief by the preponderance of evidence. And, on review, relief is to be held erroneously denied only when the trial court's judgment denying relief is shown to be clearly erroneous. Coleman v. State, 542 S.W.2d 53 1, 2 (Mo. App.1976).

Before reciting defendant's bevy of complaints, we look to the thirteen page guilty plea transcript. Defendant had a prior felony conviction for rape, and while in prison, had earned two years of college credits. His intelligence and knowledge of court procedure were apparent. Under the court's patient questioning defendant acknowledged he had discussed with his lawyer each charge, and his constitutional rights, and believed he was ably represented. Defense counsel confirmed they had thoroughly discussed the guilty plea and defendant's constitutional rights. At the court's request, the prosecutor detailed the expected evidence and defendant acknowledged each recited fact was substantially correct.

We turn now to the multiple grounds of defendant's Rule 27.26 motion. His main thrust is that his trial counsel failed to properly investigate and call named alibi witnesses. The alleged rape and sodomy had occurred about 10:30 P.M. Defendant testified he was at his aunt's home for two hours before that time; he then went to a tavern and had a drink, but he did not call the named tavern operator as a witness. Defendant said he next went to his mother's home at 11:20 P.M. Defense counsel explained to defendant his failure to rely on this less-than-solid alibi. He was made aware of initial contrary statements made to the prosecutor by defendant and his wife, saying they had spent the whole evening in question with named friends; the wife confirmed this, in minute detail; later she repudiated her alibi statement. At the evidentiary hearing defense counsel explained his failure to call the suggested alibi witnesses, fearing that could lead to perjury charges. Selection of witnesses is discretionary with trial counsel. Clearly, there was no abuse of that discretion.

By defendant's next point relied on he claims ineffective counsel for failure to file pre-trial motions to suppress identification testimony, for a continuance and to disqualify the trial judge. In the argument section of defendant's brief he does not pursue this point and we deem it abandoned.

Last, defendant contends his guilty pleas were not...