Dearing v. State

631 S.W.2d 328, 1982 Mo. LEXIS 539

Opinions

RENDLEN, Judge.

This appeal, from a judgment of the Circuit Court of Moniteau County entered February 1, 1980, denying Billy J. Dearing’s (appellant’s) application for writ of error coram nobis, comes to the writer on reassignment. Here on transfer from the Missouri Court of Appeals, Western District, the cause is decided as though on original appeal, Mo.Const. Art. V, § 10, and the scope of our consideration of this court-tried action is determined by Rule 73.-01(c)(1) which provides such cases shall be reviewed upon “the law and the evidence as in suits of an equitable nature.” This means the trial court’s judgment will be sustained unless there is “no substantial evidence to support it,” or it is “against the weight of the evidence”¹ or unless it erroneously “declares” or “applies” the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). In addition, “due regard shall be given to the opportunity of the trial court to have judged the credibility of witnesses.” Rule 73.01(c)(2). Mindful of our function and limited scope of review we turn to the claims of error.

I.

Appellant first contends the hearing court² improperly failed to make findings of fact and conclusions of law as required by Supreme Court Rule 27.26(i). Such contention is without merit for several reasons. This action is not governed by the special provisions of Rule 27.26, but instead by the general Rules of Civil Procedure. The controlling Rule 73.01.1(b) (1979) (now, Rule 73.01(a)(2)) provided that a party may “before final submission of the case” (emphasis added) request the court to make a statement of the grounds for its decision, and if requested the court “shall, include its findings on such controverted fact issues as have been specified by counsel.” No such request was made to the hearing court, hence defendant’s claim is not well taken. Further, though no timely request was made and no specific findings were required, the court after final submission gave the parties an opportunity to submit suggested findings of fact and conclusions of law within ten days but these apparently were never filed. Finally, the rule quite clearly contemplates situations in which no findings are requested, for in such cases, all fact issues upon which no specific findings have been made shall be considered as having been found in accordance with the result reached. Rule 73.01.1(b) (1979) (now Rule 73.01(a)(2)). The contention is denied.

II.

Appellant next asserts “the [hearing] Court erred in denying defendant’s application for writ of error coram nobis for the reason that petitioner [when a defendant in a 1978 misdemeanor conviction] should have been afforded counsel as an indigent” under the Sixth Amendment to the U. S. Constitution. Though not clearly spelled out in appellant’s “point” or accom panying argument, the essence of this claim is that the hearing court, in this coram nobis proceeding, erroneously applied the law when reaching its decision as to the alleged Sixth Amendment violation. The matter to which this claim relates is the September, 1978 trial of an intoxicated driving charge. At the close of that trial the court found Dearing guilty and assessed a fine but no jail sentence. Hence, even if Dearing had clearly shown indigency, there was, in the trial of that misdemeanor, no constitutional or legal requirement for appointment of counsel as no period of incarceration was imposed. Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979); Trimble v. State, 593 S.W.2d 542 (Mo. banc 1980). Accordingly, appellant’s present contention that the hearing court, by its February 1, 1980 order denying the writ, erroneously applied the law, is clearly meritless.

III.

Appellant’s next contention appearing in Points III and IV of his brief, is somewhat blurred and the Points do not make clear (as required by Rule 84.04(d)) wherein or why the hearing court erred. Nevertheless we consider the points and have gleaned from the argument that in essence it is claimed there is no substantial evidence to support the hearing court’s judgment. However, we find the hearing court’s refusal of the writ was supported by substantial evidence when it determined that the trial court’s denial of the defendant’s requested continuance on the day of the misdemeanor trial (September 1, 1978) did not constitute, as contended, a wrongful denial of any opportunity for defendant to obtain legal representation or prepare a defense. The alleged trial error, denial of the requested continuance, was not shown as rising to a constitutional level or of such magnitude and fundamental character as to compel vacation of the judgment in this coram nobis proceeding. Arnold v. State, 552 S.W.2d 286, 293 (Mo.App.1977). While this alone is sufficient to require a denial of the Points and affirmance of the judgment, a number of additional reasons appear for sustaining the judgment of the hearing court which will be discussed later herein, but first we examine the evidence supporting the judgment.

On July 17, 1978, Dearing was arrested and charged with driving while intoxicated, a misdemeanor under § 564.440, RSMo 1969.³ Dearing refused a proffered Breathalyzer, but immediately posted bond and was released. Shortly he employed counsel, who had represented him earlier that year on another charge, and his fee arrangement involved the forgiveness of past charges for repair work in exchange for the legal services. Counsel moved for and obtained a continuance to August 2, but the cause was not tried that date. On or about August 1, counsel moved to withdraw. Defendant had discussed this proposed withdrawal with counsel, and on August 13, received a letter from the court (dated August 11) advising that leave to withdraw had been granted and that he, Dearing, was to appear in court “with counsel ready for trial” on September 1,1978. Defendant remained free on bail during this time and concedes he made no attempt to hire a different attorney contending only he lacked sufficient funds.

When defendant appeared on September 1, and requested a further continuance, the trial judge denied this request stating “defendant has had adequate time to obtain counsel and has failed to do so. The court finds by said failure that defendant has waived right to counsel.” In this connection Dearing did not request that an attorney be appointed by the court and conceded during cross-examination in the coram no-bis hearing that he had, in fact, agreed to proceed pro se, but added “I had no choice”. Nothing suggests there was a prospect for him to have secured new counsel on September 1 or reasonably soon thereafter, which negates his claim for the (second) continuance, as the likelihood of obtaining funds to employ counsel was shown neither to the trial court in 1978 nor to the hearing court in 1979. This failure is another of the facts bringing to naught Dearing’s contention that the trial court abused its discretion when deciding to proceed. It also bears reemphasis that Dearing had been given express notice in writing to appear with counsel for trial on September 1. He was fully apprised in July and August of 1978 of his situation’s potential.

In sum, Dearing’s own actions and inactions annulled his claim that the alleged trial error somehow rises to the level of a constitutional error or a grievance of such magnitude as to compel vacation of the judgment. Arnold v. State, 552 S.W.2d 286, 293 (Mo.App.1977). If Dearing had sought an appeal, which he failed to do, the question of a continuance could have been reviewed, but would not have worked reversal.

After denial of the continuance, Dearing requested an opportunity to contact persons to testify in his behalf and the court-recessed that he might telephone such witnesses. However, he was unable to obtain any witnesses and the trial court, when so informed, inquired as to what beneficial testimony Dearing anticipated from such persons. Receiving Dearing’s explanation, the court recognized the purported testimony would not materially assist defendant and that further recess would serve no useful purpose. This deficiency in Dearing’s position is carried into the present proceeding, as he neither pled nor proved what testimony might be adduced on retrial to work acquittal, hence, he failed to carry this burden of showing that a continuance clearly would have been of benefit, an indispensable ingredient for his claim of error in the hearing court’s denial of the writ. In this connection it is worth mention that as an accommodation to Dearing, the trial court issued a subpoena for a witness who did not appear.

At the close of trial, impressed with Dearing’s situation, the court imposed a fine of only $150, and suspended $100 on condition that he complete ARTOP (Alcohol Related Traffic Offenses Program) in Jefferson City. This modest fine (net $50.00) is another indication of the fair treatment accorded defendant.

Had Dearing truly been dissatisfied and convinced error had been committed in these particulars, review by appeal was readily available. To commence the review process, Dearing needed only file notice of appeal⁴ within the ten days after the judgment became final,⁵ and was afforded an additional safeguard, when he failed to meet the time limitation prescribed, in that he might have

file[d] a notice of appeal in the trial court within twelve months from the date of final judgment if a special order to do so has been first obtained from the appropriate appellate court . .. for reasonable cause shown. Rule 28.07 (1978). (Emphasis supplied).

Thus, for one year (from October 1, 1978, until October, 1979), appellant had the opportunity to file for late notice of appeal. During this year Dearing was busy in various courts pursuing a variety of actions attacking his conviction. In January, 1979, he filed his pro se motion to vacate under Rule 27.26⁶ in the Circuit Court of Moni- teau County. From March through October 1,1979 (and continuously thereafter), he has been represented serially by four attorneys. Still no appeal was undertaken from his misdemeanor conviction, though Dearing sought and was denied habeas corpus relief in the federal court. In September, 1979, the instant action was converted from a Rule 27.26 motion to an application for writ of error coram nobis and a hearing conducted October 23, 1979. Following denial of that application on February 1, 1980, this appeal was taken.

If an appeal had been taken from the misdemeanor conviction, appellant’s assertion of the alleged trial error would have been measured against the rule that granting a continuance is within the sound discretion of the trial court, State v. Stout, 604 S.W.2d 710, 715 (Mo.App.1980), the exercise of which will not be interfered with lightly on appeal. State v. Turner, 623 S.W.2d 4, 11 (Mo. banc 1981); State v. Jefferies, 504 S.W.2d 6, 8 (Mo.1974). However, in this coram nobis proceeding appellant assumes an additional burden for he must allege and prove not only that the trial court abused its discretion, but that the abuse rises to the level of constitutional infringement or a clear violation of fundamental right. Arnold v. State, 552 S.W.2d 286, 293 (Mo.App.1977).

The issuance of a writ of error coram nobis is not a matter of right, but rests in the court’s discretion, Arnold v. State, 552 S.W.2d 286, 293 (Mo.App.1977), and the circumstances alleged and proved must be so inexorable that the court must find not only error, but that it is a grievance of such magnitude and of a “fundamental character so as to compel relief.” Id. at 293. Here, the issue has neither been properly alleged nor proved. Further, the action, civil in nature, is addressed to the hearing court for correction of errors of fact affecting the validity of the proceedings which “at the time of the original proceedings were unknown to the party seeking relief and to the court.” (Emphasis added). Arnold v. State, supra at 291. The right to relief by means of the writ is neither absolute nor allowed as a matter of right or routine. Powell v. State, 495 S.W.2d 633, 635 (Mo. banc 1973). It issues only when made to appear with reasonable certainty that some error of fact not apparent on the record was unknown to the applicant and will not lie where the now complaining party knew, or by the exercise of reasonable diligence might have known, of the alleged errors at the time of trial. Arnold v. State, supra at 291. Dearing not only knew that the case was set for trial and that he was expected to appear with counsel, but of course was fully aware that the continuance was denied at the time of trial. Nothing appears which he may now claim was unknown to him at the time of the original proceeding and was unavailable for a claim of error on appeal. Additionally, the burden was on movant to properly plead these critical ultimate facts and support them by a preponderance of the evidence; Arnold v. State, supra at 291; this he failed to do. Further, Dearing failed to plead and prove that if the judgment had been vacated, new evidence was available or a different manner of presentation would occur which would be reasonably calculated to work acquittal. Indeed, as previously noted, when the trial court permitted Dearing time to secure the presence of witnesses, and the witnesses were not forthcoming, the Court asked him to describe the nature of the testimony expected from such witnesses. From Dearing’s explanation it became apparent the purported testimony would have no effect on the outcome of the case. Appellant here has not demonstrated that the judgment of the hearing court must fail for want of substantial evidence to support it.

An additional principle, in itself sufficient to bar the writ, is that the appellant was required to allege and prove sound reasons for his failure to seek appropriate relief via appeal. Turnbough v. State, 544 S.W.2d 894, 895 (Mo.App.1976). He had done neither. The “facts” which appellant claims tainted his trial were known to him at the time the trial occurred, but neither in his coram nobis petition nor at the eviden-tiary hearing were any reasons, much less sound reasons, alleged or advanced for his failure to seek appropriate relief by way of appeal. This avoidance of the prescribed appellate process may not be employed in the manner here attempted to vacate a trial court’s judgment. A defendant may not, by merely alleging an invalid judgment and urging in general terms a so-called constitutional claim,⁷ set the stage for coram nobis for which no time limit is prescribed. This bypass of the established process and tardy assertion of a claim labeled “constitutional” is not to be encouraged. For discussion of these principles in a similar context, see Weir v. State, 589 S.W.2d 256, 258 (Mo. banc 1979).

Coram nobis, a civil action, Chrisco v. State, 586 S.W.2d 407, 409 (Mo.App.1979), governed by the Rules of Civil Procedure, is a narrowly molded action of limited application, not to be expanded to undefined limits as a substitution for appeal.

The hearing court’s judgment denying the application for writ of error coram no-bis is affirmed.⁸

WELLIVER, MORGAN and HIGGINS, JJ., concur. BARDGETT, J., dissents in separate dissenting opinion filed. DONNELLY, C. J., and SEILER, J., dissent and concur in separate dissenting opinion of BARDGETT, J.

Footnotes

1

. This latter basis should be employed with caution and only on a firm belief that the judgment is wrong.

2

. In 1978 the trial court entered judgment on a misdemeanor conviction from which no appeal was taken. In 1980 the hearing court in an independent proceeding denied coram nobis and this appeal stems from that judgment. For sake of clarity we refer to the former as the trial court and the latter as the hearing court.

3

. As a first offender, he was subject to a fine or a term in the county jail not exceeding six months, or both fine and imprisonment.

4

. Under the applicable rules, no motion for new trial was required in this court-tried misdemeanor. See Rules 73.01 and 28.18 (1978). Compare Rule 27.20(a) (1978) which requires a motion for new trial be filed ten days after the [jury’s] verdict. Compare also new Rule 29.-11(e), effective January 1, 1980.

5

. Rules 81.04 and 28.03 (1978). The judgment, entered September 1, 1978, became final in 30 days, Rules 81.05 and 28.03 (1978).

6

.This motion was set for hearing on several occasions and was once dismissed but reinstated March 30, 1979. At that time the court appointed Mr. Walter Nowotny to represent appellant and set the motion for hearing April 23, 1979. On April 19, Mr. Nowotny moved to withdraw and was granted leave on April 23. Mr. Fred Slough was then appointed to rep resent appellant and hearing was set for May 14, 1979. However, on motion, Mr. Slough was granted leave to withdraw on May 14, 1979, and on that date the court appointed Mr. John Inglish, who has been joined by Mr. Joseph DeLong, to represent appellant.

7

. This claim, raised for the first time in the application for coram nobis, also contravenes the requirement that it be asserted at the earliest opportunity. Arnold v. State, supra at 292-93.

8

. Appellant had been convicted in July of 1975, in the Circuit Court of Benton County, of an insufficient check funds charge and placed on probation for five years. In November, 1978, his bench parole was revoked and the five year sentence ordered executed. Now confined in the penitentiary, appellant contends his parole was revoked because of the misdemeanor conviction sub judice. While this is not a basis for evaluating whether the trial court erred in refusing to grant the requested continuance, if as appellant contends it is somehow material, his proof has failed to show that the parole revocation stemmed from the conviction for driving while intoxicated. The only evidence adduced was that inquiry was made into the conviction at the revocation proceeding. At most it was shown that the DWI conviction was one of the grounds for parole revocation. While this might be germane to a showing of “presently existing adverse legal circumstances” essential for a writ of error coram nobis under established case law, see, Chrisco v. State, 586 S.W.2d 407, 409 (Mo.App.1979), Arnold v. State, 552 S.W.2d 286, 291 (Mo.App.1977), McCormick v. State, 523 S.W.2d 854, 855 (Mo.App.1975), Howard v. State, 493 S.W.2d 14, 23-24 (Mo.App.1973) (Billings, J. concurring), it does not bear on the principal issue before us of whether there was a reasonable exercise of the trial judge’s discretion in proceeding with the trial on September 1, 1978.