Frazier v. State

738 S.W.2d 131, 1987 Mo. App. LEXIS 4737
CourtMissouri Court of Appeals
DecidedOctober 9, 1987
DocketNo. 15015
StatusPublished
Cited by8 cases

This text of 738 S.W.2d 131 (Frazier 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
Frazier v. State, 738 S.W.2d 131, 1987 Mo. App. LEXIS 4737 (Mo. Ct. App. 1987).

Opinion

CROW, Chief Judge.

David Thomas Frazier (“movant”) appeals from a judgment denying his first amended motion per Rule 27.26, Missouri Rules of Criminal Procedure (17th ed. 1986), to vacate his conviction of murder in the first degree, for which he was sentenced to life imprisonment. The conviction, a result of trial by jury, was affirmed on direct appeal. State v. Frazier, 587 S.W.2d 368 (Mo.App.1979).

The sole ground relied on by movant in the amended motion was that he received ineffective assistance of counsel at the jury trial. As explained more fully infra, mov-ant’s original motion to vacate, filed pro se, purported to allege five instances where counsel, henceforth referred to as “R_,” had been derelict. The amend-

ed motion to vacate, filed by an assistant public defender appointed to represent movant in the 27.26 proceeding, adopted by reference every allegation in movant’s pro se motion and added other allegations of ineffective assistance.

The amended motion to vacate was denied by the circuit court, henceforth referred to as “the motion court,” without an evidentiary hearing. The motion court’s “Findings of Facts and Conclusions of Law” consisted of one paragraph. It read:

“After examination of the [movant’s] Motion 27.26 the Court finds that the [movant] in paragraph 9 does not state facts which would allow relief for the [movant] pursuant to Rule 27.26. Alleged errors in the case as to questions of law have already gone to the Appeals Court and said appeal has been denied. This Court has no way to measure enthusiasm as requested by the [movant], and therefore, deny the [movant’s] motion filed under 27.26.”

The first of the two assignments of error briefed by movant avers that the motion court erred in denying the amended motion without an evidentiary hearing. According to movant, the amended motion pled facts which, if true, would entitle him to relief, and the records before the motion court did not conclusively show that movant was not entitled to relief.

In considering the point, we are mindful that our review is limited to a determination of whether the findings, conclusions, and judgment of the motion court are clearly erroneous. Medley v. State, 639 S.W.2d 401, 403[1] (Mo.App.1982); Montgomery v. State, 631 S.W.2d 671, 672 (Mo.App.1982); Rule 27.26(j).

[133]*133We are also aware that the Supreme Court of Missouri has held that in order to prevail on a claim of ineffective assistance of counsel, a prisoner in a 27.26 proceeding must show that his counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would have exercised under similar circumstances, and that the prisoner was prejudiced thereby. Seales v. State, 580 S.W.2d 733, 735-37[3] (Mo. banc 1979).

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), decided after Seales, the Supreme Court of the United States held that the proper standard for attorney performance in a criminal case is that of reasonably effective assistance, and that when a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. 466 U.S. at 687-88, 104 S.Ct. at 2064-65[6], 80 L.Ed.2d at 693[11]. However, added the Court, an error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment if the error had no effect on the judgment. 466 U.S. at 691, 104 S.Ct. at 2066[15], 80 L.Ed.2d at 696[20]. Thus, said the Court, the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. 466 U.S. at 694, 104 S.Ct. at 2068[19], 80 L.Ed.2d at 698[25].

In State v. Chandler, 698 S.W.2d 844, 848 n. 10 (Mo. banc 1985), decided after Strickland, the Supreme Court of Missouri discerned no significant difference between the test in Seales and the test in Strickland. Accordingly, we shall assume that Seales and Strickland are consentient.

To be entitled to an evidentiary hearing on the issue of ineffectiveness of counsel, a prisoner seeking post-conviction relief must plead facts, not conclusions, which if true would warrant relief; those facts must not be refuted by the record; and the matters complained of must have resulted in prejudice to the prisoner. Mannon v. State, 727 S.W.2d 936, 938[1] (Mo.App.1987); Baker v. State, 680 S.W.2d 278, 281[3] (Mo.App.1984); Merritt v. State, 650 S.W.2d 21, 22-23 (Mo.App.1983).

Guided by the above principles, we shall first examine each allegation of the pro se motion to determine whether such allegation warranted an evidentiary hearing. For convenience, we shall assign each allegation a number. We set forth each allegation exactly as movant penned it.

Allegation 1: “Movant will testify that his attorney failed to represent him properly and was ineffective due to the fact that movants attorney had previously withdrawn from defending movant and that when movant proceeded with his trial his attorney failed to provide a adequate motion to supress movants statement.”

This allegation assails attorney R_ in two respects. We shall consider each separately. As to the first, the record in the murder case shows that R_, who had evidently represented movant from the time of the filing of the felony complaint to the time of the filing of the information, was relieved of that assignment at the time of movant’s arraignment, and that simultaneously therewith the public defender was appointed to represent movant. Two weeks later, a motion by the public defender to withdraw as movant’s counsel was sustained, and R_was “reappointed” to represent movant. The jury trial occurred some four and a half months later. Allegation 1 pleads no facts showing that R_’s representation of movant at the jury trial was adversely affected by the circumstances just narrated.

The Supreme Court of Missouri has consistently held that a motion to vacate under Rule 27.26 which contains mere conclusional allegations and sets out no facts which, if true, would authorize relief does not warrant 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); State v. Ninemires, 306 S.W.2d 527, 530[8] (Mo.1957).

[134]

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738 S.W.2d 131, 1987 Mo. App. LEXIS 4737, Counsel Stack Legal Research, https://law.counselstack.com/opinion/frazier-v-state-moctapp-1987.