Turnbough v. State, 36313

• Decision Date: 09 December 1975
• Docket Number: No. 36313,36313
• Citation: 533 S.W.2d 609
• Parties: Gerald TURNBOUGH, Jr., Movant, v. STATE of Missouri, Respondent. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 609

533 S.W.2d 609

Gerald TURNBOUGH, Jr., Movant, v. STATE of Missouri, Respondent.

No. 36313.

Missouri Court of Appeals, St. Louis District, Division Two.

Dec. 9, 1975.

Motion for Rehearing or Transfer to Court En Banc or

Transfer to Supreme Court

Denied Jan. 23, 1976.

Application to Transfer Denied March 8, 1976.

Gael T. Infande, Crouppen, Walther & Zwibelman, St. Louis, for movant-appellant.

John C. Danforth, Atty. Gen., Preston Dean, Asst. Atty. Gen., Jefferson City Brendan Ryan, Circuit Atty., Nels C. Moss, Jr., Asst. Circuit Atty., St. Louis, for plaintiff-respondent.

STEWART, Judge.

Gerald Turnbough, movant, and Leahman Triplett were jointly charged by Substitute Information in Lieu of Indictment with assault with intent to kill with malice. The information also charged movant as a second offender. It was alleged that on the 28th day of August, 1964, in the Circuit Court of Greene County, Missouri, movant had been convicted of the offense of burglary and sentenced to three years in the Department of Corrections; that he was paroled on September 21, 1965, and was discharged November 22, 1966. Movant and Triplett were tried separately.

Movant was found to be a second offender and upon a verdict of guilty by the jury the court assessed his punishment at 25 years in the Department of Corrections. He filed a motion under Rule 27.26 to have the court vacate the judgment and grant him a new trial. The trial court after an evidentiary hearing made findings of fact and conclusions of law and denied the motion.

Counsel appointed to represent movant on this appeal has filed a brief and movant has filed a brief pro se. Movant's attorney's brief contends that it was error for the trial court in 1972 to sentence appellant under the Second Offender Act. Movant's pro se brief complains of constitutional infirmities in his being prosecuted for assault with intent to kill with malice under § 559.180 ¹ which carries a greater penalty than the general attempt statute § 556.150. He also contends that he was denied his right to cross-examination and confrontation of the victim of his crime because the victim did not testify at the trial. We affirm the judgment of the trial court.

Pertinent to the point raised by movant's counsel, movant at the evidentiary hearing introduced into evidence a certified copy of the proceedings held in the Circuit Court of Greene County, Missouri, on December 21, 1962. The record indicates that at that time the movant was found guilty of the charge of burglary upon this plea of guilty and upon being granted allocution the court placed him on probation for an indeterminate period of time.

Also introduced was the record of August 28, 1964, at which time the Circuit Court of Greene County revoked probation and sentenced movant to the Department of Corrections for a period of 3 years from the 28th day of August, 1964. With respect to the question of whether he was represented by counsel the records of the court state: 'Now on this day comes the Prosecuting Attorney of Greene County, who prosecutes on behalf of the State, and also comes the defendant in his own proper person and in the custody of the Sheriff of this County, in open Court.' The record is silent as to whether movant was represented by counsel at that time. Movant testified at the hearing on the 27.26 motion. The question of whether movant had an attorney at the sentencing was not covered on direct examination. When the movant was asked on cross examination whether or not he had pleaded guilty to the charge of burglary he answered in the affirmative. When asked whether he went back into court on December 21, 1962, when he was granted probation he answered that 'It's been a long time, I don't remember.' The following then occurred:

'Q. Well, do you remember going back into court and getting revoked?

A. Yes, I remember. Yeah.

Q. Okay. Had you contacted your lawyer before you went in there?

A. No. I didn't have no lawyer.

Q. Mr. Cox had originally represented you hadn't he?

A. At the beginning of the trial I think so, I was going to change my plea from guilty to not guilty though.

Q. Uh huh, okay. So, you don't remember being taken back into court on December 21, 1962?

A. I don't remember; its been a long time.

Q. And you don't remember whether or not you were sentenced on December 21, 1962? In other words when you came back in and told the judge--the judge was granting you probation, you don't remember whether or not he sentenced you that day?

A. I don't know.'

The only point in the brief of movant's counsel reads as follows:

'It was error for the trial court to sentence appellant under the Second Offender Act, Section 556.280 R.S.M.o.1969, because the prior conviction that allowed the court to do so was unconstitutional to the extent that the Circuit Court of Greene County denied appellant his Sixth Amendment right to counsel and his Fourteenth Amendment rights to due process and equal protection when it revoked his probation and imposed sentence without appellant receiving benefit of counsel. For the St. Louis Circuit Court to then use this unconstitutionally obtained prior conviction, compounded the constitutional wrong suffered by appellant.'

Rule 27.26 limits our review '. . . to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous.' Rule 27.26(j). Dill v. State, 525 S.W.2d 437 (Mo.App.1975); Slankard v. State, 525 S.W.2d 101 (Mo.App.1975).

The point relied on attacks no finding, judgment or conclusion of the court which heard the 27.26 motion, but attacks the finding of the trial court that he was a second offender when he was tried in 1972 for the assault. It thus raises matters not included within the findings, conclusions and judgment of the court that heard the 27.26 motion. We have nothing before us for review.

We note, however, that the trial court made no specific finding as to whether movant was represented by counsel when his probation was revoked on August 28, 1964. The finding respecting the issue reads as follows:

'8. The defendant was represented by counsel at time of his plea in Cause 43184, Greene County Circuit Court, and present when allocution granted December 21, 1962; the record is silent as to presence of counsel August 21, 1964 at evidentiary hearing on parole revocation, and at additional allocution August 28, 1964 when probation was revoked and sentence imposed and ordered executed, the defendant testified he could not remember whether or not he was represented by counsel at probation revocation or sentencing on August 28, 1964.'

It is apparent that the trial court misunderstood the last questions quoted above respecting movant's recollection of the events of December 21, 1962, coming as it did immediately after reference to the revocation hearing. The court undoubtedly thought movant was referring to the revocation hearing of August 28, 1964. The finding could possibly be read as a finding that movant had counsel at the sentencing. However it is not specific. Ordinarily this would require remand for specific finding. Hamilton v. State, 490 S.W.2d 363, 364(1) (Mo.App.1973). In this case, however, such finding would have no bearing upon the conclusion which we reach. ²

The movant relies primarily on the case of Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) which held that counsel must be afforded at a deferred sentencing which is a critical stage of the criminal process. When counsel is not present at sentencing and defendant is thereby prejudiced the cause will be remanded for a resentencing only.

At the time of defendant's trial in June 1972, Mempa v. Rhay had been the law for almost five years. What was said in Montgomery v. State, 529 S.W.2d 8 (Mo.App.St.L., 1975) is apropos here: 'Whether defendant was a second offender at the time of that conviction was a question of fact to be determined by the trial court in...