Ames v. State

956 S.W.2d 410, 1997 Mo. App. LEXIS 2014, 1997 WL 728455
CourtMissouri Court of Appeals
DecidedNovember 25, 1997
DocketNo. 21570
StatusPublished
Cited by1 cases

This text of 956 S.W.2d 410 (Ames v. State) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ames v. State, 956 S.W.2d 410, 1997 Mo. App. LEXIS 2014, 1997 WL 728455 (Mo. Ct. App. 1997).

Opinion

PARRISH, Presiding Judge.

Matthew Ames (movant) appeals the denial of his Rule 24.035 motion by which he sought to set aside his conviction for robbery in the first degree. This court affirms.

Movant was originally charged with robbery in the first degree and armed criminal action. At the initial arraignment, Peter Gullborg, a public defender, entered his appearance for movant. Following conversations with movant and a deputy sheriff who had investigated the case, and after reviewing material from the investigating officer’s file, Mr. Gullborg formed an opinion that the evidence of the robbery charge “was fairly overwhelming.” Mr. Gullborg learned, among other things, that the robbery victim had identified movant in a photo lineup.

At the time of the robbery, movant was on probation in a criminal case in Pemiscot County. He had another pending case, a felony stealing charge, in New Madrid County. Mr. Gullborg was representing defendant in the stealing case.

On the afternoon of March 18, 1996, after movant’s arraignment, movant’s attorney met with Deputy Sheriff Billy Hopkins. At that time there was a claim that movant had used a firearm in the course of the robbery. Mov-ant disputed the claim.

Movant gave a statement to Officer Hopkins admitting that he committed the robbery and stating he had used a tire iron to break a car window, not a gun as had been claimed. The statement was witnessed by Mr. Gullborg and Officer Hopkins. Movant later waived preliminary hearing. When the state filed its information, it endorsed Mr. Gullborg as a witness.

Trial was scheduled for September 26, 1996. Movant was to be tried on both charges, robbery in the first degree and armed criminal action. On September 5 Mr. Gullborg filed a motion to withdraw as mov-ant’s attorney in the criminal case. Jane Dunn filed her entry of appearance the same day. She was the district defender. Mr. Gullborg was an assistant public defender who worked in her office.

On September 24 defendant, Mr. Gullborg and Ms. Dunn appeared before the trial judge. The state was represented by an assistant prosecuting attorney. Mr. Gull-berg’s motion to withdraw was granted and a motion to suppress evidence was filed. It was directed to movant’s statement.

Later that day movant pleaded guilty to the robbery charge by means of an Alford plea.1 The plea of guilty was based on a [412]*412negotiated plea agreement. The terms of the agreement were that movant would be sentenced to 10 years’ imprisonment for the offense of robbery in the first degree. The armed criminal action charge would be dropped. Movant’s other pending case for stealing would be dropped. The sentence would run concurrent with a sentence in Pemiscot County for an offense for which movant was on probation.

Movant raises two allegations of error, both asserting claims of ineffective assistance of counsel in the underlying criminal case. Point I is directed to the representation he received from Ms. Dunn. Point II is directed to his representation by Mr. Gullborg.

This court’s review is limited to determining whether the findings, conclusions and judgment of the motion court are clearly erroneous. Rule 24.035(k); State v. Boyce, 913 S.W.2d 425, 429 (Mo.App.1996). Findings and conclusions of the motion court are clearly erroneous only if a review of the entire record leaves the reviewing court with a definite and firm impression that a mistake was made. Id.

Point'll asserts Mr. Gullborg’s representation of movant was deficient in recommending that movant give a statement to law enforcement officials because the attorney “had not reviewed any discovery, had just entered the case, and was relying entirely on a police officer’s interpretation of the facts of the case, and [movant] was thereby prejudiced because he felt he could not go to trial because of the confession.”

Mr. Gullborg testified at the evidentiary hearing. He explained:

And then at that point in time, after thinking it over a bit that it was not—it was not ini [movant’s] advantage, at that point in time, to be adversarial is what my position was, which is why I was reeom-mending him to give the statement. I was trying get [sic]—My hope was to get it reduced down to robbery two, in that the original information had included information about a gun. There had not been a gun involved, but rather a tire iron. And I was hoping that that would be—That that was what had driven—the fact there was a gun present, had driven [the prosecuting attorney] the [sic] file as robbery one rather than robbery two.
I thought that it fit the perimeters [sic] of a strong-arm robbery two better, and that was what my hope, that a statement would show is that Matt was not being adversarial. He was admitting that he had done it. He—He actually, at that time, was remorseful about it, not for the fact that he was actually in custody, but he was regretting what he’d done, and I was hoping that with the robbery two also we would possibly be able to get him into the two-year cocaine rehab program because he was not possible to get into that with robbery—with robbery one with a plea on that.

The motion court found:

Peter Gullborg was the attorney for movant in the pending felony stealing charge at the time movant was charged with robbery. He undoubtedly knew that movant was on probation in the Pemiscot County ease. He concluded that it was in the best interest of movant to persuade the State that movant had been armed with a tire tool rather than a firearm. Because of the evidence against movant in the robbery ease, he properly decided that it would not be in the best interest of his client to adopt an adversarial posture in the beginning of the case. His initial strategy was to attempt to obtain a reduction of the charge to robbery in the second degree and avoid the effect of the 85 percent statute.f2] He [413]*413made no promises to movant such result would occur, and he did not mislead mov-ant. When the disposition of the four charges to which movant was subject is considered, the Court finds that the defense strategy was at least partially successful. The fact that the State would not reduce the charge to robbery in the second degree does not render the assistance ineffective. An objective consideration of all the circumstances leads to the conclusion that there was a favorable disposition of movant’s cases. Movant was not prejudiced by the actions of this attorney.

“After a plea of guilty, the effectiveness of counsel is relevant only to the extent it affects the voluntariness of the plea.” Van Ralston v. State, 824 S.W.2d 75, 78 (Mo.App.1991). Inquiry concerning an attorney’s performance is whether, considering all the circumstances, the assistance was reasonable. Childress v. State, 778 S.W.2d 3, 6 (Mo.App.1989). Trial strategy does not provide a basis for an attack on the effectiveness of trial counsel. State v. Boyce, supra, at 430. A trial attorney has the right to select the strategy he believes is best suited for his or her client’s case. State v. Anthony, 881 S.W.2d 658, 661 (Mo.App.1994).

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Cite This Page — Counsel Stack

Bluebook (online)
956 S.W.2d 410, 1997 Mo. App. LEXIS 2014, 1997 WL 728455, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ames-v-state-moctapp-1997.