Walker v. State

• Decision Date: 27 August 1985
• Docket Number: No. WD,WD
• Citation: 698 S.W.2d 871
• Parties: Edwin L. WALKER, Movant-Appellant, v. STATE of Missouri, Respondent. 36584.
• Court: Missouri Court of Appeals

Page 871

698 S.W.2d 871

Edwin L. WALKER, Movant-Appellant, v. STATE of Missouri, Respondent.

No. WD 36584.

Missouri Court of Appeals Western District.

Aug. 27, 1985.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

Oct. 1, 1985.

Application to Transfer Denied

Nov. 21, 1985.

Thomas J. Cox, Kansas City, for movant-appellant.

William L. Webster, Atty. Gen., Thomas Carter II, Asst. Atty. Gen., Jefferson City, for respondent.

Before MANFORD, P.J., and PRITCHARD and LOWENSTEIN, JJ.

MANFORD, Presiding Judge.

This is a direct appeal from the denial of post-conviction relief pursuant to a Rule 27.26 motion. The judgment is affirmed.

Movant presents four points, which in summary charge that the trial court erred in denying his request for post-conviction relief, because (1) the trial court failed to send notice to appellant of the specific date the court would rule whether an evidentiary hearing would be granted on movant's Rule 27.26 motion, and such failure denied movant his right to a change of judge, (2) the trial court ruled that movant was not entitled to an evidentiary hearing on his Rule 27.26 motion in that movant properly pleaded facts not refuted by the record, (3) the trial court overruled movant's motion for change of judge prescribed by Rule 51.05, and (4) the trial court should have granted movant's motion to set aside the judgment in the Rule 27.26 motion because movant had filed his motion for change of judge, and the trial court was without jurisdiction thereafter to rule on any matter in the case.

The present matter comes before this court on appeal from judgment denying post-conviction relief sought by movant pursuant to a Rule 27.26 motion. This court has been provided a copy of the guilty plea proceedings, along with a copy of the record extended upon sentencing. From these sources, the following pertinent facts are disclosed:

Movant and his wife (one of the victims) had been separated for approximately one week. On August 29, 1981, movant had a phone conversation with his wife, during which he learned that she was going to be at the "Smugglers' Inn" in Kansas City, Missouri, that evening. Movant proceeded to drink beer and whiskey that same day, and later obtained a hand gun (.38 caliber) from his mother's residence. He went to the Smugglers' Inn and as his wife was leaving the establishment, movant shot and seriously wounded her (after she entered an automobile). A friend of the wife (the other victim) hollered (after movant had wounded his wife) and movant turned around and shot and wounded the friend, one Joyce Darby.

By movant's own testimony, he stated that his intent to harm his wife had been formed about an hour prior to his shooting her. Movant was initially charged by indictment with two counts of assault, first degree, which were two Class A felonies. A subsequent plea agreement was reached. The plea agreement provided only that the state would amend, by information, and thus reduce both charges to Class B felonies, and there would be a pre-sentence report. The plea agreement also provided that the state would recommend incarceration of ten years on each count and that the state would oppose probation.

The trial court conducted a thorough and exhaustive inquiry regarding movant's plea of guilty. Movant was competently represented by both of his privately retained attorneys. The state fulfilled its part to the plea agreement. Sentencing was deferred pending completion of a pre-sentence report. Upon receipt of the report, a sentencing hearing was conducted and movant was afforded the opportunity to note any exception or to make what he thought were necessary corrections to the report. The court then entered sentences of ten years on both counts, said sentences to run consecutively.

Movant filed an initial Rule 27.26 motion, which was dismissed without prejudice. On October 4, 1984, movant filed the present Rule 27.26 motion. On November 19, 1984 (47 days after the filing of same), the trial court, without an evidentiary hearing, entered its findings of fact and conclusions of law and denied movant relief under his Rule 27.26 motion. Counsel for movant then filed a motion to set aside the trial court's judgment and a motion for change of judge. Both motions were overruled on December 10, 1984. This appeal followed.

Under his point (1), movant asserts that the trial court erred in not providing him notice that the court would rule whether an evidentiary hearing upon his Rule 27.26 motion would be granted. He further asserts that such failure by the trial court denied him the right to move for a change of judge.

In support of his contention, movant relies upon Wheatley v. State, 559 S.W.2d 526 (Mo. banc 1977) and Riley v. State, 680 S.W.2d 956, 957 (Mo.App.1984). Neither of these authorities is applicable to the instant case. Wheatley ruled that once counsel for a movant had been appointed, the trial court should not summarily rule upon the motion where the motion is not sufficient. In Wheatley, the trial court summarily ruled (without notice) that the petition (i.e., the motion) was insufficient. The Missouri Supreme Court ruled that counsel should have the opportunity to amend the motion and that opportunity must be based upon timely notice to counsel. The initial ruling by the trial court in Wheatley was not upon the merits of the case, but rather upon the failure of the petition (i.e., the motion) to state a sufficient cause. Wheatley simply turned upon a different set of circumstances than the instant case. In the instant case, the trial court ruled upon the merits of the case. Movant's reliance upon Wheatley is simply misplaced.

Movant further relies upon Riley v. State, supra. In Riley, the court recognized Wheatley and went on to state that the timing of appointment of counsel was immaterial. In addition, the Riley court pointed out the importance of time for counsel and movant to meet and confer. It is noted that the dismissal in Riley was upon the failure of movant to plead facts rather than conclusions as required by Rule 27.26. The Riley opinion is important for another issue (herein, as will be observed infra), i.e., the disqualification of the trial judge. However, like Wheatley, Riley simply does not apply to the instant case and movant's reliance thereon is simply misplaced.

Contrary to movant's assertion and the undisclosed reasons of the dissent notwithstanding, the fact remains that Movant's point (1) in the instant case is ruled squarely by the rule announced in Lang v. State, 596 S.W.2d 739 (Mo.App.1980). The court in Lang acknowledged the rule in Wheatley and correctly ruled that Lang did not come within the Wheatley rule. The exact same rationale is applicable to the instant case.

Wheatley and Riley announced the rule that a trial court cannot, without timely notice, dismiss a motion (i.e., a petition) for failure to state a claim or for any other defect which, by amendment, could be corrected. Lang ruled, and correctly so, that the Wheatley ruling did not require notice where disposition of a movant's claim is or has been upon the merits and not a summary disposition for or upon a defect in presentment of the claim.

The Lang ruling is profoundly sound for two reasons. In the first instance, if notice is to be mandatory in all Rule 27.26 proceedings, as asserted by movant herein and supported by the dissent herein, for some unexplained reason, then the trial courts face an additional burden concerning their heavy dockets. Thus, disposition of Rule 27.26 motions is further delayed. Such a procedure and even worse, the unsound thinking which supports such an approach, will do nothing but add an additional and unnecessary burden upon the trial courts. In addition, if judicial expediency is not sufficient reason, then those who support the requirement of notice must face and answer the question: If the trial court has taken up and disposed of the Rule 27.26 motion upon the merits, wherein has the movant been prejudiced or denied due process? It is submitted that those who clamor for the mandatory notice in all cases cannot, with all honesty, ever answer the above question, that there has been either prejudice or a denial of due process.

Wheatley and Riley interpose a protection for movants and their counsel against a summary or even arbitrary dismissal of a motion (i.e., a petition) due to some defect therein which is subject to correction by amendment. Neither case addresses or certainly rules that notice is required when a motion has been taken up and disposition has been made upon the merits.

The Rule 27.26 motion was never intended to serve as a brief and temporary respite from incarceration, nor was it ever intended to become the vehicle for entertaining novel concepts spawned by persons with too little to do and too much time on their hands. The awareness by potential movants that they can engage the legal system without any penalty, and the like awareness that counsel is placed in the middle, has led the entire Rule 27.26 process to take on new meaning and has required the courts, both trial and appellate, to devote unwarranted amounts of time on matters which too often have no merit.

Movant herein was accorded due process and the disposition of his claim was upon the merits (more properly, the lack of merit) which was exactly what he was assured under Rule 27.26. What both movant and the dissent urge is an unnessary step and it does not create any more merit for such a position by merely suggesting a movant was denied due process. What both movant and the dissent either fail to recognize or choose to ignore is that under the facts and circumstances of the instant case, movant was accorded everything to which he was entitled. The Court of Appeals-Eastern District fully recognized the real issue and thus ruled it in Lang, supra. The instant case clearly comes within Lang and movant's point (1) is ruled against...