Veneri v. State, s. 55078
| Decision Date | 13 December 1971 |
| Docket Number | 55079,Nos. 55078,No. 1,s. 55078,1 |
| Citation | 474 S.W.2d 833 |
| Parties | Anthony John VENERI, Jr., Movant-Appellant, v. STATE of Missouri, Respondent. Leo REILLY, Movant-Appellant, v. STATE of Missouri, Respondent |
| Court | Missouri Supreme Court |
Jenny, Cole & Eckelkamp, Union by L. B. Eckelkamp, Jr., Union, for appellant.
John C. Danforth, Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for respondent.
This is an appeal from the judgment of the circuit court overruling appellants' motions under S.Ct. Rule 27.26, V.A.M.R., and overruling appellants' subsequent motions under S.Ct. Rules 27.25 and 27.26.
On July 1, 1968, appellants Veneri and Reilly pleaded guilty to a charge of robbery in the first degree by means of a dangerous and deadly weapon and each was sentenced to a term of twenty-five years and committed to the custody of the department of corrections.
On January 30, 1969, Veneri and Reilly filed S.Ct. Rule 27.26 motions seeking to set aside the judgments and sentences. The grounds alleged therein are:
a) They had been prosecuted without a valid complaint having been made or filed;
b) They had been denied the right to counsel during the preliminary stages of the prosecution in violation of their rights under the United States Constitution, Amendments 6 and 14, and denied the right to counsel at their preliminary hearing; that any waiver of preliminary hearing was invalid because they did not have counsel at that time; and
c) Denied of effective assistance of counsel in violation of the Missouri and United States Constitutions.
On February 18, 1969, attorney Randolph Puchta was appointed to represent petitioners on their motions.
On May 19, 1969, petitioners filed an amended motion which added the following grounds to the original motion:
d) They were interrogated, fingerprinted and photographed prior to being advised of their right to remain silent and their right to counsel;
e) They were interrogated, fingerprinted and photographed prior to being arrested and charged with any crime;
f) They were not advised of their right to counsel at preliminary hearing;
g) They had been held in custody and tried without being advised they were under arrest and without any arrest warrant being read to them;
h) That their plea of guilty was entered as a result of reliance on a promise that prosecutor William Wessel would recommend a sentence of ten years; and in fact William Wessel recommended twenty-five years. That this representation resulted in denial of jury trial to them; and
i) That the judgment entered against them did not conform to the complaint and information.
The court held an evidentiary hearing on May 19, 1969. Both petitioners were present with counsel. On June 2, 1969, the court found against petitioners on all allegations made in their motions except that allegation pertaining to the judgment of conviction not conforming to the complaint and information which will be discussed later.
On June 16, 1969, petitioners filed their motions for new trial. This motion was never ruled on by the trial court. We disregard it as we have not previously required that a motion for new trial be filed in order to preserve the right to appeal in 27.26 motion cases. However, notice of appeal was not timely filed and on October 6, 1969, both petitioners, pro se, sought leave to file a late notice of appeal as poor persons from this court pursuant to S.Ct. Rule 28.07, and an order to file notice of appeal was granted to Veneri on December 8, 1969, and to Reilly on November 10, 1969. Our special order to file notice of appeal was in response to petitioners, pro se, request to take an appeal from the circuit court's judgments of June 2, 1969, which judgments were entered on petitioners' 27.26 motions referred to supra.
Instead of filing a notice of appeal from the judgment of June 2, 1969, petitioner Veneri, pro se, filed what he terms a combined 27.25--27.26 motion in the Circuit Court of Gasconade County on December 15, 1969. In this motion Veneri acknowledges that this court granted him leave to file a late notice of appeal from the judgment of June 2, 1969, but asserts that 'by virtue of this Court's (circuit court's) findings of fact and conclusions of law, which ha(ve) been clearly explained to your movant, such appeal would be a waste of time, expense to the state drawing up and filing the transcript, and an additional burden upon the office of the Attorney General of Missouri.' Veneri further states that there has been no final judgment in his case by appeal from the prior denial of the 27.26 motion and, therefore, the circuit court still has jurisdiction and authority to entertain this combined motion and adjudicate the same. Veneri is obviously incorrect in this assertion. The circuit court's judgment of June 2, 1969, was a final appealable order. Additionally, S.Ct. Rule 27.26(d) prescribes certain prohibitions against the trial court entertaining successive motions. The record reflects, however, that although Mr. Puchta remained attorney of record in the circuit court, he was ill; and Veneri and Reilly were, for all practical purposes, without counsel from about June 2, 1969, until January 7, 1971, at which time Mr. L. B. Eckelkamp, Jr., counsel for petitioners on this appeal, was appointed by Honorable George P. Adams, Special Judge, to represent petitioners.
The combined 27.25--27.26 motion of December 15, 1969, alleged their plea of guilty was involuntary and they were deprived of due process and alleges some seven grounds in support thereof; prays for an evidentiary hearing and appointment of counsel, and that the sentences and judgments of July 1, 1968, be set aside. Additionally the motion of December 15, 1969, appears to be an effort to have the trial court set aside its judgment on the original 27.26 motions entered June 2, 1969. The December 15, 1969, motion could not serve that purpose for, if the June 2, 1969, judgment is to be reversed, it would have to be done by the appropriate appellate court.
In support of their position that a new hearing is required on the 27.25--27.26 motions filed December 15, 1969, appellants cite State v. Moreland, Mo., 351 S.W.2d 33. There, the circuit court overruled Moreland's first rule 27.26 motion without a hearing and subsequently overruled a second motion because 'this is the second such motion filed by appellant.' No appeal was taken from the judgment denying the first motion. On appeal from the denial of the second motion without an evidentiary hearing, the court reversed and remanded saying, loc. cit. 37:
In Moreland, the petitioner had not received that to which he was entitled--an evidentiary hearing--and it was to rectify that error that this court reversed and ordered a hearing. Here, appellants had their evidentiary hearing on their first motion and findings of fact were made and judgments entered. In these circumstances, State v. Moreland, supra, does not necessarily require the trial court to hold an evidentiary hearing on the second motion. Whether or not an evidentiary hearing on the second motion is required is controlled by the criteria set forth in S.Ct. Rule 27.26(d), which will be discussed further, infra.
We construe appellants' notice of appeal filed in circuit court on January 15, 1970, and transmitted here on March 10, 1971, as a notice of appeal from the judgments entered June 2, 1969, overruling appellants' rule 27.26 motions and as an appeal from the order of the trial court entered January 12, 1970, on appellants' combined 27.25--27.26 motion filed December 15, 1970, to wit: 'Movants 2nd Motion dated Dec. 15, 1970 overruled--see Judgment of June 2, 1970.' The appellants and the state have proceeded on the basis that Reilly joined in the motion and, although the record is somewhat confused, the fact that Reilly's notice of appeal is identical to Veneri's indicates he did join in the motion and we will decide this appeal on the basis that both appellants joined in all documents filed in the circuit court and here.
Re: The appeal from the trial court's judgment of June 2, 1969, overruling appellants' rule 27.26 motion filed January 30, 1969, as amended May 19, 1969.
Appellants assert the complaint filed in magistrate court was invalid on the grounds that it was not properly verified. It appears from the testimony that this allegation was withdrawn. In any event, the evidence shows and the trial court found that the complaint was signed by the complaining witness and acknowledged in due form by William Wessel, as a notary public, and filed in the Magistrate Court of Gasconade County, Missouri. The finding is not clearly erroneous. Crosswhite v. State, Mo., 426 S.W.2d 67.
Second, appellants contend they were denied their constitutional rights in that no attorney was appointed to represent them at the preliminary hearing. The preliminary hearing was held about 10:00 a.m. on April 18, 1968, about six hours after appellants were apprehended. Appellants agree that they waived preliminary hearing, but contend that the waiver was invalid because they had no attorney. They did not request an attorney at preliminary, and testified that they did not recall the magistrate judge advising them that they had a right to be represented by an attorney at the preliminary.
The magistrate judge testified at the rule...
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