Webb v. State, KCD

• Decision Date: 01 October 1979
• Docket Number: No. KCD,KCD
• Citation: 589 S.W.2d 89
• Parties: Leo WEBB, Appellant, v. STATE of Missouri, Respondent. 30577.
• Court: Missouri Court of Appeals

Page 89

589 S.W.2d 89

Leo WEBB, Appellant, v. STATE of Missouri, Respondent.

No. KCD 30577.

Missouri Court of Appeals,

Western District.

Oct. 1, 1979.

As Modified on Courts' Own Motion Oct. 29, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Nov. 15, 1979.

Application to Transfer Denied Dec. 6, 1979.

Clifford A. Cohen, Public Defender, Gary L. Gardner, Kevin R. Locke, Asst. Public Defenders, Kansas City, for appellant.

John Ashcroft, Atty. Gen., Jefferson City, Earl W. Brown, III, Sp. Asst. Atty. Gen., Kansas City, for respondent.

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

MANFORD, Judge.

Appeal from order denying post-conviction relief pursuant to motion filed under Rule 27.26.

The circuit order denying post-conviction relief was entered upon the record and without an evidentiary hearing. The order was entered of record November 1, 1978. ¹

On July 29, 1975, appellant was, by jury, convicted of two counts of receiving stolen property. Punishment was assessed at seven years on each count, said sentences to run consecutively. Appellant was sentenced on September 12, 1975. Appellant's conviction was upheld on appeal, see State v. Webb, 544 S.W.2d 53 (Mo.App.1976).

Appellant filed his motion for post-conviction relief pursuant to Rule 27.26. The circuit court denied relief without an evidentiary hearing and upon the record. This appeal followed the action by the circuit court.

On this appeal, three points are alleged as error. Appellant first contends the trial court erred in overruling appellant's motion because appellant did not knowingly, voluntarily and intelligently agree to the consolidation of both charges against him. Appellant claims he was tried jointly on both charges as a result of being misled by the trial court. Appellant also claims that his counsel ineffectively advised him that the prosecutor could dismiss both charges and refile an information alleging both charges in separate counts, and that he therefore had no right whatsoever to move for the severance of both counts.

Appellant, for his second contention, claims the court erred in overruling his motion because he was not present and did not waive his rights to be present at the hearing to determine the applicability of the Second Offender Act.

Appellant's final point alleges that the trial court erred in overruling his motion because his trial counsel was ineffective in neglecting to object to the introduction of certain evidence.

Upon briefing and docketing, this case was orally argued before this court. Appellant was granted leave to submit and include for consideration the case of State v. Buford, 582 S.W.2d 298 (Mo.App.1979).

The points alleged will be taken up and disposed of in the order of their presentation. The facts, as applicable to each point, must be considered.

As to point one, the record discloses the following discussion relative to the consolidation of the two counts:

"THE COURT: All right. Now, I want to . . . I also want to advise you that you do have the opportunity under the present status of the cases, of trying . . . having those two cases tried separately. However, there would be nothing to prevent the prosecutor's office from proceeding under a reindictment or dismissal of these cases and refiling both cases under two counts in which event they would be tried together. Now, all I want to get straight for the record is, that what we're proposing to do here this morning is to commence the trial of all three cases and its's your request that all three cases be tried before the same jury at the same time, is that right?" ²

to which appellant responded,

"LEO WEBB: I don't have no objection to that, but what I was going to say is, if I did do that, I have to make another bond of what they say. I have done spent a thousand dollars already on bonds, see, put it five thousand on each charge. What I am getting at is, they read one indictment that I had to make a $5,000.00 bond, then they read another indictment, then I have to make another $5,000.00 bond."

Following that interchange, the court continued:

"THE COURT: All I'm trying to get at, Mr. Webb, is that there are two separate cases against you and we're going to proceed to try both of them at the same time, and I want to know if you have any objection to that."

Appellant responded to the court's second reference to trial on both counts with the following:

"LEO WEBB: No, I don't have no objection to it."

On the record, there followed an inquiry by the two attorneys representing appellant to see if he understood that the charges could be dismissed and a trial held on both counts at a later time. Appellant acknowledged he had this explained to him and that he understood the matter. ³

Under point one, appellant charges he was misled by the trial court. Reference to the record herein refutes this contention. To the contrary, the trial court provided appellant timely opportunity to object to trial on both cases.

The remainder of the allegations of point one is different, if not unique, in that appellant alleges violation of his rights under Rule 24.04 by reason of ineffective assistance of counsel. Rule 24.04 states:

"All offenses which are based on the same act or on two or more acts which are part of the same transaction or on two or more acts or transactions which constitute parts of a common scheme or plan may be charged in the same indictment or information in separate counts, or in the same count when authorized by statute. Any indictment or information may contain counts for the different degrees of the same offense or for any one of such degrees." ⁴

It is alleged that counsel for appellant failed to advise appellant of his right to file a motion to sever the two cases against him if and upon the condition that the prosecutor chose to dismiss and refile the charges as discussed supra.

Rule 24.04, of course, provides a safeguard against improper joinder of offenses. The rule itself does not mandate a severance of multiple charges, rather, an accused possesses the right to file a motion to sever the counts, see State v. Buford, supra. Our courts are possessed of discretion as to the granting of the motion, State v. Crane, 559 S.W.2d 294 (Mo.App.1977) and State v. Brannom, 539 S.W.2d 747 (Mo.App.1976).

In the case of State v. Prier, 561 S.W.2d 437 (Mo.App.1978), the court goes to great length to detail the rule on joinder (Rule 24.04) and provides a good comparative analysis of the similar federal rule. ⁵

State v. Prier, supra and State v. Jackson, 566 S.W.2d 227 (Mo.App.1978) were cited and relied upon by appellant. By leave of this court, appellant was granted permission to include State v. Buford, supra. These cases (State v. Prier, supra, State v. Jackson, supra and State v. Buford, supra ) specifically discuss the application and limitation of Rule 24.04.

State v. Prier, supra, provides that joinder of two offenses constituting parts of a common scheme does not authorize the joinder of a third offense unrelated to the first two, and for the premise that even if joinder of offenses is proper under federal rules of criminal procedure, under particular circumstances, such joinder might still be prejudicial to an accused. The case goes further in pointing out that relief is available to an accused upon a showing of prejudice and if timely objected to, severance is to be granted.

Under the case of State v. Jackson, supra, the court again pointed out that unrelated acts are to be tried separately. The court, in this case, also pointed out that the joinder of offenses is procedural and not a substantive matter. In this case, the question first arose on defendant's motion for new trial on the basis of a violation of the defendant's constitutional rights. The court ruled, and properly so, that the defendant had preserved nothing for review. Prior to trial, however, the defendant had filed his motion to sever. Upon claim by the state that the evidence would show the two charges arose out of the same occurrence, the motion was overruled. The cause was reversed and remanded simply upon the lack of evidence to support the state's contention.

State v. Buford, supra, serves to declare that Rule 24.04 does not mandate severance, although, as the opinion states at p. 303, in quoting from State v. Prier, supra :

". . . the Missouri courts have 'evinced a willingness to consider the question of whether a trial court has abused its discretion in denying a request for separate trials . . .' "

In State v. Buford, supra, a motion to sever was filed and in reversing the cause, the court concluded that denial of severance was an abuse of discretion.

The foregoing cases all possess a common denominator, which is lacking in the case herein. That common denominator is the motion to sever and the relative action by the courts in each instance concerning the motions.

In the present case, appellant attempts to bring himself within the protection afforded in State v. Prier, supra, State v. Jackson, supra and State v. Buford, supra, by alleging ineffective assistance of counsel.

The evidence on the face of the record simply fails to support appellant's contention. This conclusion is inescapable when one first considers there is no constitutional right to be tried upon a single offense, see State v. Baker, 524 S.W.2d 122 (Mo. banc 1975), and that Rule 24.04 is procedural and not substantive, see State v. Jackson, supra.

In the case herein, appellant was represented by two attorneys upon trial. He was afforded the opportunity to object to the consolidation of the two cases against him. The record is clear and convincing that appellant counseled with his attorneys regarding severance and entered a voluntary waiver to exercise his right to have the cases severed. Indeed, the record shows on its face he was not only apprised of his right to have the cases tried separately, but when directly asked by the trial judge if he had any...