Barton v. State

802 S.W.2d 561, 1991 Mo. App. LEXIS 150, 1991 WL 5996
CourtMissouri Court of Appeals
DecidedJanuary 28, 1991
DocketNo. 17014
StatusPublished
Cited by9 cases

This text of 802 S.W.2d 561 (Barton 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
Barton v. State, 802 S.W.2d 561, 1991 Mo. App. LEXIS 150, 1991 WL 5996 (Mo. Ct. App. 1991).

Opinion

CROW, Judge.

Movant George Henry Barton appeals from the denial, without an evidentiary hearing, of his pro se motion per Rule 29.15, Missouri Rules of Criminal Proce-

dure (19th ed. 1988), to vacate his conviction of felony stealing and ten-year prison sentence. The conviction, a result of trial by jury, was affirmed on direct appeal. State v. Barton, 753 S.W.2d 331 (Mo.App. 1988).

Movant’s brief presents three assignments of error. We consider them in the order presented.

The first alleges the pro se motion pled facts which, if proved, would warrant relief, consequently the motion court erred in holding no evidentiary hearing. Specifically, says movant, his motion alleged he received ineffective assistance of counsel in that “defense counsel failed to contact, investigate and call witnesses and ... defense counsel provided incriminating information to the State.”

The allegations of the pro se motion to which movant’s first point refers are:

“(b) [Defense counsel] did not call witnesses that I requested him to; Cody Ice, my Bondsman, on a motion and a witness, Brad Conway.
[[Image here]]
(e) I believed at the time of my trial and I believe now that [defense counsel] gave information to Bradshaw Smith (Prosecuting Attorney) that helped convict me.”

To be entitled to an evidentiary hearing on the issue of ineffectiveness of counsel, a prisoner seeking relief under Rule 29.15 must plead facts, not conclusions, which if true would warrant relief; those allegations must be unrefuted by the record; and the matters complained of must have resulted in prejudice to the prisoner. State v. Berry, 798 S.W.2d 491, 496[9] (Mo.App.1990); State v. Fraction, 782 S.W.2d 764, 769 (Mo.App.1989). Where a prisoner’s motion for post-conviction relief avers his lawyer rendered ineffective assistance by failing to present a witness at trial, the motion must state the facts to which the unproduced witness would have testified; if the motion fails to do so the prisoner is not entitled to an evidentiary hearing. Matkenia v. State, 752 S.W.2d 873, 876[4] (Mo.App.1988), cert. denied, 488 [563]*563U.S. 1019, 109 S.Ct. 819, 102 L.Ed.2d 809 (1989); Ahart v. State, 732 S.W.2d 256, 257-58[3] (Mo.App.1987); Sinclair v. State, 708 S.W.2d 333, 336[4] (Mo.App.1986).

Movant’s motion did not set forth what the testimony of witnesses Ice or Conway would have been. Consequently, movant was not entitled to an evidentiary hearing regarding defense counsel’s alleged failure to call those witnesses.

Movant’s motion is likewise deficient regarding defense counsel’s alleged disclosure of incriminatory information to the prosecutor. The motion contains no hint as to what the information was, nor does the motion allege how the prosecutor used the information to convict movant. Mere con-clusional allegations setting forth no facts which, if true, would warrant relief do not entitle the prisoner to an evidentiary hearing. State v. Lillibridge, 399 S.W.2d 25, 28[2] (Mo.1966), cert. denied, 384 U.S. 956, 86 S.Ct. 1579, 16 L.Ed.2d 551 (1966); State v. Statler, 383 S.W.2d 534, 537[2] (Mo. 1964); Luster v. State, 795 S.W.2d 109, 111 (Mo.App.1990). Movant’s first point is without merit.

His second point avers the motion court erred in denying the pro se motion without an evidentiary hearing in that the record shows he received ineffective assistance of counsel in the motion court. Movant asserts, “Motion counsel failed to comply with ... Rule 29.15 when counsel did not attempt to file an amended motion on [mov-ant’s] behalf when the record of [movant’s] criminal trial clearly shows the existence of at least one meritorious allegation concerning the trial court’s jurisdiction.”

Movant acknowledges the Supreme Court of Missouri has held a post-conviction proceeding cannot be utilized to challenge the effectiveness of counsel in the post-conviction proceeding. Sloan v. State, 779 S.W.2d 580, 583[6] (Mo. banc 1989), cert. denied, — U.S.—, 110 S.Ct. 1537, 108 L.Ed.2d 776 (1990); Young v. State, 770 S.W.2d 243, 245[4] (Mo. banc 1989); Lingar v. State, 766 S.W.2d 640, 641[2] (Mo. banc 1989), cert. denied, — U.S. —, 110 S.Ct. 258, 107 L.Ed.2d 207 (1989).

Movant points out, however, that cases decided by the Court of Appeals since Sloan, Young and Lingar have held that where counsel for a prisoner in a post-conviction proceeding provides no representation whatever, a judgment denying relief can be reversed and the proceeding remanded so the prisoner can receive assistance of counsel. Parker v. State, 785 S.W.2d 313 (Mo.App.1990); Luster v. State, 785 S.W.2d 103 (Mo.App.1990) (prisoner entitled to new appointed counsel and fresh period for filing amended motion to vacate).

At the same time, movant recognizes the Court of Appeals has held the extraordinary relief of reversal because of appointed counsel’s failure to amend a prisoner’s pro se motion to vacate his conviction is not warranted unless the record indicates he had a justiciable claim that appointed counsel failed to present. Luster, 785 S.W.2d at 107[9]; State v. Perez, 768 S.W.2d 224, 228[3] (Mo.App.1989). The prisoner’s brief must specify the additional grounds that counsel neglected to raise. Luster, 785 S.W.2d at 107[10]; Grove v. State, 772 S.W.2d 390, 392-93[l] (Mo.App. 1989).

Movant’s brief asserts there was at least one possible ground for relief that should have been alleged by motion counsel in an amended motion to vacate. Movant directs us to the following events.1

He was brought to Carter County, Missouri, from the Federal Prison Camp, Leavenworth, Kansas, on March 16, 1987, for trial in the stealing case per the Agreement on Detainers, § 217.490, RSMo 1986. He was not tried until August 7, 1987.

Article IV of the Agreement sets forth the procedure for a Missouri prosecutor to follow in obtaining a prisoner from United States custody for trial. Section 3 of Article IV states:

“In respect of any proceeding made possible by this article, trial shall be com[564]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

David Barnett v. Don Roper
Eighth Circuit, 2008
Barnett v. Roper
541 F.3d 804 (Eighth Circuit, 2008)
State v. Valdez
886 S.W.2d 182 (Missouri Court of Appeals, 1994)
Gilliland v. State
882 S.W.2d 322 (Missouri Court of Appeals, 1994)
Bilskey v. State
842 S.W.2d 894 (Missouri Court of Appeals, 1992)
State v. Brewster
836 S.W.2d 9 (Missouri Court of Appeals, 1992)
State v. Scott
829 S.W.2d 120 (Missouri Court of Appeals, 1992)
Poole v. State
825 S.W.2d 669 (Missouri Court of Appeals, 1992)
State v. Jennings
815 S.W.2d 434 (Missouri Court of Appeals, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
802 S.W.2d 561, 1991 Mo. App. LEXIS 150, 1991 WL 5996, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barton-v-state-moctapp-1991.