Brown v. State

751 S.W.2d 812, 1988 Mo. App. LEXIS 828, 1988 WL 58074
Missouri Court of Appeals·Decided June 9, 1988·No. No. 15207·Published·Cited by 1 cases

Opinion

FLANIGAN, Judge.

Movant John Michael Brown appeals from an order denying, after an evidentiary hearing, his Rule 27.261 motion to set aside a judgment and four-year sentence for possession of more than 35 grams of marijuana. The conviction was entered on November 19, 1984, in the Circuit Court of McDonald County, pursuant to a plea of guilty.

On this appeal movant asserts that his guilty plea was entered involuntarily by reason of ineffective assistance of counsel, attorney Tim Warren, who represented him at the time of its entry, and that the trial court erred in ruling otherwise. Specifically, movant asserts that his guilty plea was entered as a result of coercion consisting of the following acts and omissions on the part of attorney Warren: (a) “advocating the interests of Brad Durbin, movant’s 19-year-old nephew”; (b) “allowing Brad’s mother and other relatives to make emotional pleas that movant plead guilty to help his nephew”; (c) “misleading movant about his chances for parole if he pled guilty”; (d) “misinforming movant that if he went to trial his sentence would be consecutive to other sentences”; and (e) “ignoring movant’s moral objection to pleading guilty to a crime for which mov-ant believed he was not responsible.”

Appellate review in this proceeding is limited to a determination of whether the findings, conclusions, and judgment of the trial court are clearly erroneous. Rule 27.-26(j) (Rep. Feb. 11, 1987, effective Jan. 1, 1988). Movant had the burden, in the trial court, of establishing his grounds for relief by a preponderance of the evidence. Rule 27.26(f) (Rep. Feb. 11, 1987, effective Jan. 1, 1988).

[813]*813Where a criminal defendant enters his guilty plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice was “within the range of competence demanded in a criminal case.” Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 369, 88 L.Ed.2d 203 (1985).

“[T]he two-part Strickland v. Washington [466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)] test applies to challenges to guilty pleas based on ineffective assistance of counsel. In the context of guilty pleas, the first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence already set forth in Tollett v. Henderson, supra, [411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) ] and McMann v. Richardson, [397 U.S. 759/90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)]. The second, or ‘prejudice,’ requirement, on the other hand, focuses on whether counsel’s constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. 106 S.Ct. at 370. (Emphasis added.)

At the motion hearing, held on April 3, 1987, the trial court granted movant’s request that he be permitted to represent himself. At the direction of the trial court, an assistant public defender sat with mov-ant at the counsel table. Movant conducted the interrogation of the witnesses, all of whom were called as his witnesses. Mov-ant himself did not testify.

In May 1984 movant was tried on a felony charge of manufacturing marijuana. According to movant’s brief, movant and Brad Durbin “were charged with manufacturing marijuana in concert with each other.” The state’s brief agrees with that statement. Apparently a severance was ordered, for movant was tried separately. Movant’s trial resulted in a hung jury and a mistrial.

At the motion hearing attorney Warren, who represented movant at the jury trial, testified that his trial strategy was that Brad Durbin “was as accessible to the marijuana [as the movant], ... that it was not [movant] who grew the marijuana, it was his nephew Brad Durbin.”

On August 14, 1984, Brad Durbin entered a plea of guilty to the charge of manufacturing marijuana and was sentenced to a term of five years, subject to the provision of § 217.775 permitting the court receiving the plea to grant probation to a defendant “any time up to 120 days after he has been delivered to the custody of the Division of Adult Institutions.”

The charge against movant of manufacturing marijuana was set for a second trial to be held on November 19, 1984, and the state announced its intention to call Brad Durbin as a witness. Plea bargaining ensued, which culminated in movant entering the instant guilty plea. Pursuant to the bargain, movant was to receive a sentence of four years to run concurrently with consecutive five-year and two-year sentences, each imposed for an unrelated offense, which movant was then serving.

At the motion hearing attorney Warren testified to conversations he had with mov-ant which resulted in Warren’s recommendation of the plea bargain and movant’s acceptance of it. Warren told movant that in his opinion a hung jury was a less likely result of the second trial than it was of the first trial because the prosecution knew “what the defense was going to be.” Warren discussed with movant the possible punishment in the event the second trial resulted in conviction.

Warren also told movant that he expected Durbin to be called as a witness by the state and that if the jury believed Durbin, “it would have destroyed the strategy I used at the first trial of pointing the finger at Brad.” Warren also testified that he told movant that Durbin had given certain testimony when he, Durbin, entered his plea, and that if Durbin testified, under oath, contrary to anything he had said previously under oath, Durbin could be charged with perjury. Warren also testi[814]*814fied, “I was not the only one who recommended that he accept the plea. Every person who was involved in the discussion recommended that.”

Present during the movant-Warren conversations concerning the plea bargain were movant’s “girl friend” (Lois Lewis), and movant’s sisters, Rebecca Johnson and Karen Johnson, all of whom testified at the motion hearing. Also present during those conversations were Mary Lou Durbin, Brad’s mother, and Mae Brown, movant’s mother. Rebecca Johnson testified she didn’t remember anything attorney Warren said and that she didn’t know anything about the plea bargain offer. Karen Johnson testified that she didn’t hear anything Warren said and that movant had already made the decision to plead when she arrived. Lois Lewis testified that movant “objected to pleading guilty to something you were not guilty of,” and that Mary Lou Durbin and Mae Brown “requested [mov-ant] in very emotional terms that you not make Brad take the stand.” Lois Lewis also testified that she recommended to movant that he enter a plea of guilty. She also said that movant himself “was the one who made the final decision he was going to plead guilty.”

A transcript of movant’s guilty plea hearing of November 19, 1984, was received into evidence at the motion hearing. At the guilty plea hearing the judge conducted an extensive examination of movant with respect to the charge of possessing more than 35 grams of marijuana.

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Brown v. State, 751 S.W.2d 812, 1988 Mo. App. LEXIS 828, 1988 WL 58074 (Mo. Ct. App. 1988).

751 S.W.2d 812 (Brown v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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