Warren v. State, 52834
| Decision Date | 15 September 1987 |
| Docket Number | No. 52834,52834 |
| Citation | 740 S.W.2d 251 |
| Parties | Paul WARREN, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent. |
| Court | Missouri Court of Appeals |
Elizabeth R. Brown, St. Louis, for movant-appellant.
William L. Webster, Atty. Gen., Carrie Francke, Sp. Asst. Atty. Gen., Jefferson City, for respondent-respondent.
Movant appeals from an order denying his Rule 27.26 motion without an evidentiary hearing. We affirm.
Pursuant to a guilty plea agreement, movant pled guilty on March 6, 1986, to two counts of first-degree sexual abuse and separate counts of sodomy and rape. The victims were movant's five- and six-year-old nieces. Under the plea agreement the state dismissed one sodomy count and one rape count. At the guilty plea hearing, the prosecutor stated he had evidence that movant was a prior and persistent offender which would permit sentence enhancement if movant were convicted by a jury. The court ordered a presentence investigation. In accordance with the plea agreement, movant was sentenced on April 25, 1986, to concurrent terms of five years' imprisonment on the sexual abuse counts and consecutive terms of five years' imprisonment on the sodomy and rape counts for a total of fifteen years.
Movant filed a pro se Rule 27.26 motion, amended following appointment of counsel, in which he alleged that ineffective assistance of counsel rendered his guilty pleas involuntary. Specifically, he alleged that his attorney met with him for only 15 minutes prior to his entering of the guilty pleas, and "had [counsel] met with movant for more than 15 minutes, he would have been able to evaluate movant's ability to fully understand the consequences of his plea." Movant also alleged that counsel "failed to interview family members and attending doctors" and "[h]ad counsel observed movant and investigated the case he would have learned through interview and personal observation" that movant suffered brain damage as a result of a fall from a height of three stories at a construction site in 1973, that movant suffered severe head injuries in an automobile accident about two years after the fall that left him "impaired to the point that writing and simple reasoning became a task," and, had counsel discovered this information, he could have advised the court that movant was incapable of assisting in his own defense and in making knowing and intelligent pleas of guilty.
Movant also alleged that he had a ten-year history of "mind altering drug abuse;" that he had received treatment at various institutions for his drug problems on several occasions, including one occasion immediately prior to his arrest; and that participation in a drug rehabilitation program demonstrated that he was "not capable of assisting in his defense, nor was he capable of making a knowing and intelligent plea...." Therefore, movant asserted, his counsel should have requested, and the trial court should have ordered, a psychiatric evaluation of him.
The motion court denied movant's Rule 27.26 motion without an evidentiary hearing. In its order, the motion court stated that:
Movant complains that he had a mental defect as a result of a fall in 1973 that made him incapable of entering a voluntary plea, and further, counsel should have requested a psychiatric evaluation of Movant. The transcript of the guilty plea hearing refutes those allegations. At said hearing Movant stated that his only allegation of a mental disease or illness involved treatment for drug and alcohol addiction which he stated were cleared up after said treatment. During the guilty plea hearing Movant makes no mention of a fall or accident causing a mental problem.
The motion court also found that the transcript of the guilty plea hearing refuted movant's allegations about the lack of time his attorney spent with him.
In his sole point on appeal, movant alleges the motion court erred in denying him an evidentiary hearing because, he contends, he "pleaded sufficient factual allegations of ineffective assistance of counsel to warrant said hearing; in that [movant's] waiver of appeal was not voluntarily, knowingly and intelligently made as [movant] demonstrated that he had a history of mental problems prior to his plea."
Our review is limited to determining whether the conclusions and judgment of the motion court are clearly erroneous. Rule 27.26(j); Richardson v. State, 719 S.W.2d 912, 915 (Mo.App.1986). The motion court's conclusions are clearly erroneous only if a review of the entire record leaves the appellate court with a definite and firm impression that a mistake has been made. Richardson, 719 S.W.2d at 915.
To be entitled to an evidentiary hearing on a Rule 27.26 motion, the movant must: (1) allege facts, not conclusions, which, if true, would warrant relief; (2) those facts must not be refuted by the record; and (3) the matters complained of must have resulted in prejudice to the movant. Chapman v. State, 720 S.W.2d 17, 18 (Mo.App.1986). When an ineffective assistance of counsel claim is based on counsel's alleged failure to investigate, movant must allege "what specific information the attorney failed to discover, that reasonable investigation would have disclosed that information, and that the information would have aided or improved [movant's] position." Rice v. State, 585 S.W.2d 488, 493 (Mo. banc 1979). After a plea of guilty, the effectiveness of counsel is relevant only to the extent it affects the voluntariness of the plea. Porter v. State, 678 S.W.2d 2, 3 (Mo.App.1984). Movant has the burden of proving his asserted grounds for relief by a preponderance of the evidence. Careaga v. State, 613 S.W.2d 863, 867 (Mo.App.1981).
The following excerpts from the transcript of movant's guilty plea hearing are pertinent:
Q. And did you have a job before you were arrested?
A. Yes, well, I worked off and on before I became disabled. I fell three stories and have had a bad leg.
....
Q. Have you ever been treated by any hospital or doctor for any mental illness or disease?
A. Yes, sir.
....
Q. When was that?
A. That was last year, September 25th--I put myself in a Care...
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