Bolden v. State

501 S.W.2d 565, 1973 Mo. App. LEXIS 1542

• Court: Missouri Court of Appeals
• Decided: October 30, 1973
• Docket: No. 35068
• Status: Published

Opinions

CLEMENS, Judge.

Movant appeals from an order denying his motion to vacate a judgment and sentence. We find no merit in the points relied on and affirm.

Movant was found guilty of first degree robbery and sentenced to 16 years imprisonment. The conviction was affirmed, State v. Bolden, 473 S.W.2d 355 (Mo.1971).

The first alleged error is that mov-ant was not accorded allocution, and if accorded allocution he would have been able to show legal cause why his sentence should be reduced. This is based on his contention that an accomplice pleaded guilty to the same offense and received a sentence of only seven years imprisonment. Movant contends that to impose a higher sentence is to punish him for pleading not guilty. There can be no complaint of excessive punishment pursuant to a jury verdict when, as here, it is within the limits provided by law. Shields v. State, 491 S.W.2d 6 (Mo.App.1973).

The alleged failure to grant allocution occurred when the judge said, “At this time, gentlemen, I am overruling your motion for a new trial. Is there any legal reason why sentence and judgment of this court should not now be pronounced and imposed against this man, gentlemen ?” The question was asked in the presence of movant and his two attorneys, one of whom answered, “No legal reason, your honor,” whereupon the judge asked that the record show allocation had been granted and imposed sentence.

Movant contends Rule 27.09 V.A. M.R., requires that he be asked whether he has any legal cause to show why judgment and sentence should not be pronounced against him and that since only his attorneys were asked, the sentence must be vacated. Where a defendant has been heard on his motion for a new trial failure to grant allocution is not error. Rule 27.10.

The second error alleged is ineffectiveness of counsel. We may grant relief on such a claim only if the representation has been so woefully inadequate as to deny the defendant a fair trial. Hall v. State, 496 S.W.2d 300 [1-3] (Mo.App.1973). Two examples of alleged ineffectiveness are claimed. The first is the failure of defense counsel to request a mistrial after the admission of certain testimony. Counsel did, however, request that the jury disregard the testimony and the trial court so ordered. The second example is an instruction requested by defense counsel stating circumstances under which the jury could find movant not guilty. Movant now contends the instruction hypothesized facts not supported by the evidence but we note the instruction was based on movant’s own theory of defense.

Movant has not sustained his burden of showing he did not have a fair trial. We believe the trial court’s finding that there was no ineffective assistance of counsel is not clearly erroneous. To the contrary, it appears movant was effectively represented by capable counsel.

Judgment affirmed.

SMITH, P. J., concurs. McMILLIAN, J., concurs in separate opinion.