Walster v. State
| Decision Date | 10 March 1969 |
| Docket Number | No. 54042,No. 1,54042,1 |
| Citation | 438 S.W.2d 1 |
| Parties | John W. WALSTER, Movant-Appellant, v. STATE of Missouri, Respondent |
| Court | Missouri Supreme Court |
Shaw, Hanks & Bornschein, by Joseph Howlett, Clayton, for movant-appellant.
Norman H. Anderson, Atty. Gen., Louren R. Wood, Asst. Atty. Gen., Jefferson City, for respondent.
John W. Walster, hereinafter referred to as movant, appeals from a judgment overruling his motion to vacate and set aside his sentence and his plea of guilty. Sup.Ct. Rules 27.25 and 27.26, V.A.M.R. We affirm.
Movant, and others as codefendants, were charged by information with stealing property of a value in excess of $50. Sections 560.156 and 560.161, subd. 1(2). 1 A severance was granted at movant's request and on March 31, 1967, the state filed an amended information charging movant alone with the same offense; on the same day movant appeared with counsel of his own choice and entered a plea of guilty. The court accepted the plea, deferred sentencing, and granted movant probation. Thereafter, on August 29, 1967, movant appeared with other counsel of his choice for the purpose of a hearing to determine whether his probation should be revoked. At the close of that hearing his probation was revoked, allocution granted, and movant sentenced to imprisonment in the custody of the Department of Corrections for a term of four years.
Thereafter, on May 14, 1968, a hearing was held by the court on the instant motion to vacate at which movant appeared in person with counsel of his choice and presented evidence in support of the motion. The matter was taken under advisement, briefs submitted by counsel, and on July 1, 1968, the court made and filed findings of fact and conclusions of law, and entered judgment overruling the motion. Movant is represented on appeal by the same counsel, who has filed a brief in his behalf.
The scope of our review is limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Sup.Ct. Rule 27.26(j), V.A.M.R.
Two points are relied on in the brief for reversal. The first is that movant was denied effective assistance of counsel in violation of constitutional rights. The point is not developed or explained in the brief; however, reference to the motion indicates that movant means that counsel was directed by him, but failed, to request leave to withdraw the plea of guilty before the parole revocation hearing began. The record refutes this contention. Movant was represented at the parole revocation hearing by the same counsel representing him at the hearing on this motion. Counsel stated at the latter hearing, and the court found, that before the parole hearing began, he made a request for leave to withdraw the plea of guilty and it was denied.
We conclude that movant means also by the first point that he was denied effective assistance of counsel at the time of his plea of guilty. His motion alleges that his plea was involuntary, because induced by assurance from his counsel that if he would plead guilty he would be granted 'two years' probation.' He supports this allegation with his testimony that counsel represented to him, and he believed, that if he would enter a plea of guilty he would be sentenced and granted a parole, or that sentence would be deferred and he would be granted probation, but, in either event, upon breach of parole or probation, the punishment would be a sentence of two years, and no more. No other person testified, pro or con, on...
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