Clemons v. State

755 S.W.2d 711, 1988 Mo. App. LEXIS 1081, 1988 WL 77995
CourtMissouri Court of Appeals
DecidedJuly 29, 1988
DocketNo. 15497
StatusPublished
Cited by1 cases

This text of 755 S.W.2d 711 (Clemons 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
Clemons v. State, 755 S.W.2d 711, 1988 Mo. App. LEXIS 1081, 1988 WL 77995 (Mo. Ct. App. 1988).

Opinion

GREENE, Judge.

Sammie Clemons appeals from the denial without evidentiary hearing of his motion to vacate convictions and ensuing sentences imposed after his pleas of guilty to charges of attempted first degree robbery, § 564.011,1 and armed criminal action § 571.015, and what is known as an Alford plea2 to a charge of first degree assault, § 565.050. Sentences imposed were life imprisonment for the assault and armed criminal action charges and 15 years for the attempted armed robbery with the sentences to run concurrently.

The substance of the state’s evidence giving rise to the filing of the criminal charges against Clemons was that on December 8, 1983, Clemons entered Voelker’s Jewelry Store in Sikeston, Missouri, and, during an aborted holdup attempt, pointed a .38 caliber revolver at Geneva Voelker when she tried to telephone police, and pulled the trigger. The gun misfired. During Clemons’ attempt to flee, he was shot by Geneva’s husband, Joe Voelker. He was later apprehended by the police.

On March 4, 1987, after Clemons was confined to serve his sentences, he filed a motion requesting post-conviction relief pursuant to Rule 27.26,3 which, after amendment by court-appointed counsel, alleged ineffective assistance of trial counsel for failure to raise the double jeopardy issue concerning Clemons’ pleas to the assault and attempted robbery charges, and his failure “to correct the trial court” when the court advised Clemons, before he entered his pleas, that he could receive sentences totaling 250 years if he stood trial and was convicted of the three crimes with which he was charged.

[713]*713The hearing court denied the motion to vacate, which was supported by written findings of fact and conclusions of law. Our review is limited to a determination of whether the judgment, findings, and conclusions were clearly erroneous. Rule 27.-26(j).

On appeal, Clemons raises the same two issues alleged in his motion to vacate, which were the double jeopardy claim, and the threat of excessive punishment if he stood trial. In regard to the double jeopardy claim, Clemons contends that his trial counsel was ineffective when he “allowed” him to plead guilty to all three charges, as the assault and attempted robbery charges were premised on the same act, which was the assault on Mrs. Voelker with a pistol, and, therefore, convictions on both charges constitutes double jeopardy, which is barred by the fifth amendment to the U.S. Constitution. In support of his position, Clemons cites State v. Richardson, 460 S.W.2d 537 (Mo. banc 1970), and State v. Neal, 514 S.W.2d 544 (Mo. banc 1974).

In Richardson, the defendant entered a guilty plea to a charge of attempted robbery, the substance of which charged that “ ‘while armed with a deadly weapon, to wit, a butcher knife with a sharp and pointed blade [he] attempted to hold up and rob Emmett M. Wilkes at Ed’s Liquor Store in the City of Mexico.’ ” Richardson was also charged with an assault on Wilkes, with the information charging that “ ‘at Ed’s Liquor Store in the City of Mexico, [defendant] did willfully, feloniously, on purpose, and of his malice aforethought, * * * make an assault upon Emmett M. Wilkes with a deadly weapon, to wit a certain butcher knife with a sharp and pointed blade, a means likely to produce death or great bodily harm, with intent to kill or maim Emmett M. Wilkes.’ ” Richardson, supra, 460 S.W.2d 537-38. In setting aside the conviction on the assault charge, the Supreme Court held that since the assault on Wilkes was the “necessary” act to justify conviction on the attempted robbery charge, that act could not be used as the basis of the assault charge as such submission would permit multiple punishments for the same act. Id. 540.

In Neal, the defendant was charged in a three-count information with one count of robbery and two counts of assault. The robbery count charged that Neal and Earl Fingers “feloniously and by means of a pistol, did rob and take $282, the property of William Cordes, d/b/a Cordes Hardware, in the care and custody of Johnnie Walton, by putting Johnnie Walton in fear of immediate injury to his person....” Count II alleged that Neal and Fingers assaulted William Cordes with a pistol, with the intent to kill him. Count III was the same as Count II except that the assault alleged was upon Johnnie Walton. The Supreme Court, citing Richardson, reversed Neal’s conviction on the assault charge involving Walton, saying the assault with the pistol was the same act as that charged in the robbery Count. State v. Neal, supra, at 548.

Here, the attempted robbery charge stated that Clemons “attempted to forcibly steal jewelry and lawful currency of the United States owned by Joe Voelker and Geneva Voelker, doing business as Voelker’s Jewelers, and in the course thereof defendant was armed with a deadly weapon, and such conduct was a substantial step toward the commission of the crime of robbery in the first degree of Voelker’s Jewelers, and was done for the purpose of committing such robbery.” The “conduct” referred to was Clemons being armed with a deadly weapon, which the record indicates was a .38 caliber revolver. The assault charge states that Clemons “attempted to kill or to cause serious physical injury to Geneva Voelker by putting a .38 caliber revolver to her head and pulling the trigger, and defendant committed this offense by means of a deadly weapon.”

The motion court found no merit in the double jeopardy argument, stating that the charges of assault, attempted robbery, and armed criminal action were separate offenses, citing Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983), and State v. Henderson, 698 S.W.2d 596 (Mo.App.1985). These citations are inap[714]*714propriate under the facts of this case, but do not affect the legal conclusions reached.

Hunter was a case where a first degree robbery charge was coupled with a charge of armed criminal action. In Henderson, an assault charge was coupled with a charge of armed criminal action. In both cases, the essential element used to prove the armed criminal action charge (use of a weapon) was the same element essential to be proven in the underlying felony charge. In affirming convictions on the robbery and armed criminal action counts of the indictment, the Supreme Court of the United States in Hunter held:

Where, as here, a legislature specifically authorizes cumulative punishment under two statutes, regardless of whether those two statutes proscribe the “same” conduct under Blockburger [.Blockbur-ger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932)], a court’s task of statutory construction is at an end and the prosecutor may seek and the trial court or jury may impose cumulative punishment under such statutes in a single trial.

Missouri v. Hunter, supra, 103 S.Ct. at 679.

Section 571.017 RSMo Cum.Supp.1988 proscribes:

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Related

State v. Hardamon
785 S.W.2d 97 (Missouri Court of Appeals, 1990)

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Bluebook (online)
755 S.W.2d 711, 1988 Mo. App. LEXIS 1081, 1988 WL 77995, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clemons-v-state-moctapp-1988.