Watt v. State, 60516
| Decision Date | 02 June 1992 |
| Docket Number | No. 60516,60516 |
| Citation | 835 S.W.2d 404 |
| Parties | Brian WATT, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Ellen A. Blau, David C. Hemingway, for appellant.
William L. Webster, Atty. Gen., Robert Alan Kelly, Asst. Atty. Gen., Jefferson City, for respondent.
Movant, Brian Watt, appeals the denial of his Rule 24.035 motion without an evidentiary hearing.
Movant was indicted on August 11, 1989 for first-degree burglary (Count I), second degree assault (Count II), forcible rape (Count III), and two counts of forcible sodomy (Counts IV and V). Pursuant to a plea agreement, the state nolle prossed Counts I, II, IV, and V and movant entered a plea of guilty pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to the forcible rape charge (Count III).
The prosecutor stated that the evidence would show that at approximately 2:30 a.m. on July 22, 1989, Mrs. J.E. was assaulted by movant. Movant beat her with his fists and then had sexual intercourse with her without her consent. Movant then forced Mrs. J.E. into acts of oral and anal intercourse against her will. The prosecutor further stated that after the assault, movant identified himself, apologized and accompanied Mrs. J.E. to Barnes Hospital where she identified movant as her assailant. Movant was then arrested.
On July 24, 1989, movant underwent a mental examination and evaluation. Movant was found to be mentally fit to proceed. He was arraigned and entered his plea to the rape charge. Movant's attorney explained that the reason for the Alford plea is that the psychiatric team at State Hospital found movant to have an organic brain disorder due to a childhood accident resulting in problems of memory loss. When questioned by the trial judge at the hearing, movant agreed that the state could prove its case based on the testimony of Mrs. J.E. although he had no memory of the incident.
Movant's guilty plea was accepted and he was sentenced to a term of twenty five years' imprisonment for the rape conviction. On March 19, 1991, movant timely filed a pro se Rule 24.035 motion alleging that his counsel failed to 1) maintain contact with him; 2) adequately explain the consequences of a guilty plea; 3) contact witnesses; 4) keep promises; 5) keep him informed; and that he had no conscious memory of said offense. On March 26, 1991, counsel was appointed and was granted till May 27, 1991 to file an amended motion. On May 24, 1991 counsel filed an amended motion which lacked verification as required by Rule 24.035(f), and a motion for an evidentiary hearing. The amended motion alleged essentially, ineffective assistance of counsel in that counsel failed to: 1) exercise the skill and diligence of a reasonably competent attorney; 2) meet with movant to adequately prepare movant's case; 3) adequately explain the consequences of pleading guilty; 4) contact and/or call to testify defense witnesses; and 5) pursue adequately a defense of not guilty by reason of mental disease or defect. On May 28, 1991, one day after the time limit for filing an amended motion had expired, movant's verification of the previously filed amended motion was filed. The verification did not contain the proper language i.e., "declaring that [movant] has listed all grounds for relief known to him and acknowledging his understanding that he waives any ground for relief known to him that is not listed in the motion." Rule 24.035(d). On June 6, 1991, the motion court without an evidentiary hearing entered its findings, conclusions, and order denying movant's motion for post conviction relief.
On appeal, movant contends that the motion court erred in denying him an evidentiary hearing in that 1) counsel's failure to interview his witnesses rendered his plea involuntary and 2) counsel failed to adequately pursue the defense of mental disease or defect on the basis that he agreed to plead after discussing the alternatives which were based on inadequate research and advice by trial counsel. We affirm.
At the outset, we note that there is a discrepancy as to the spelling of movant's name in the indictment and other documents and the way movant signs his name. This discrepancy appears to pose no problem.
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