Goad v. State

839 S.W.2d 749, 1992 WL 314231
CourtMissouri Court of Appeals
DecidedNovember 10, 1992
DocketNo. WD 45772
StatusPublished
Cited by3 cases

This text of 839 S.W.2d 749 (Goad 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
Goad v. State, 839 S.W.2d 749, 1992 WL 314231 (Mo. Ct. App. 1992).

Opinion

HANNA, Judge.

On September 20, 1990, movant, Marvin Dewane Goad, was charged with murder in the first degree (Count I), robbery in the first degree (Count II) and armed criminal action (Count III). A change of venue transferred the case from Cape Girardeau County to Boone County. In exchange for the state’s promise to drop Counts II and III and to pursue only two of four aggravating factors present in the case, defendant pled guilty to murder in the first degree. The court sentenced movant to life imprisonment without eligibility for probation or parole. This is an appeal from the trial court’s denial without a hearing of mov-ant’s post-conviction motion.

On July 24, 1991, movant filed a pro se motion for post-conviction relief pursuant to Missouri Supreme Court Rule 24.035. Counsel for movant filed a first amended motion and request for evidentiary hearing. The state responded with a motion for summary judgment. The motion court issued an order granting the parties until December 13, 1991 to file briefs and proposed orders on the state’s motion for summary judgment.

On December 9, 1991, the state submitted its proposed order to the motion court and on December 10, 1991, the court adopted the state’s proposed order denying movant relief on his Rule 24.035 motion without an evidentiary hearing. The mov-ant submitted his proposed order on December 13, 1991. This appeal follows.

Movant raises two points on appeal: (1) that the motion court’s verbatim adoption of the state’s proposed order before he had filed his response violated his right to due [751]*751process of law1; and (2) that the court’s denial of movant’s Rule 24.035 motion without an evidentiary hearing violated his right to effective assistance of counsel guaranteed by the sixth and fourteenth amendments. Specifically, he claims his attorney advised him the law would change and he would be released from custody in fifteen years.

The motion court’s verbatim adoption of the state’s proposed order before the timely filing of movant’s proposed order while not a desirable practice, was neither reversible error nor a denial of mov-ant’s right to due process of law. It is within a court’s discretion to adopt the entirety of a party’s proposed findings. Kaiser v. Pearl, 670 S.W.2d 915, 919 (Mo.App.1984). A court may even adopt such findings of fact and conclusions of law verbatim without per se error occurring. Stelling v. Stelling, 769 S.W.2d 450, 452 (Mo.App.1989). As long as, there are no inconsistencies between the findings of fact and the actual facts, and the findings and conclusions are sufficiently specific to permit meaningful review, there is no error. Kaiser, 670 S.W.2d at 919; Malone v. State, 747 S.W.2d 695, 699 (Mo.App.1988). When the proposed findings of fact and conclusions of law respond to each and every allegation made and when it is clear from the record that the motion court carefully examined each allegation, the verbatim adoption of the state’s proposed findings would be an appropriate option. As the Missouri Court of Appeals has stated before:

The preferable practice is for the trial court to prepare its own specific findings of fact and conclusions of law so as to better insure that all issues raised are addressed and that erroneous allegations of a fact or law made in a state’s motion are not incorporated in a court order.

Malone, 747 S.W.2d at 699. This is not to suggest that the practice of requesting and receiving proposed findings of fact and conclusions of law from counsel for the parties should be discontinued. Proposed findings and conclusions have always been and will continue to be of valuable assistance to the court in arriving at an expeditious and correct decision.

Upon careful review of the record, we find no discrepancies between the facts found in the record and those contained in the order adopted by the court. In fact, the motion court’s order sets forth a complete and very detailed findings of fact and conclusions of law. As a result, its order responds to each of the movant’s grounds for vacating, setting aside, or correcting his conviction and sentence. The motion court’s order clearly shows that each of movant’s claims were considered, reviewed and scrutinized. Such a thorough review refutes movant’s claim of error and denial of due process.

For movant to prevail on his second claim of ineffective assistance of counsel, he “must demonstrate that his trial counsel’s performance was deficient in that it was unreasonable under prevailing professional norms and that [he] was thereby prejudiced.” Franks v. State, 783 S.W.2d 437, 438 (Mo.App.1990); Byers v. State, 772 S.W.2d 802, 804 (Mo.App.1989). In guilty plea situations, such as the present case, “the effectiveness of counsel is relevant only to the extent that it affects the voluntariness of the plea.” Id, at 438; Short v. State, 771 S.W.2d 859, 864 (Mo.App.1989). Therefore, movant “may attack only the voluntary and intelligent nature of the guilty plea by showing that the advice he received from counsel was not within the reasonable prevailing standards that a reasonably competent attorney would exercise under similar circumstances.” Id. at 438.

When a convicted movant complains of the ineffectiveness of counsel’s assistance, the movant must show that counsel’s representation fell below an objective standard of reasonableness under the prevailing professional norms and “absent a clear abuse of discretion, an appellate court will [752]*752defer to the determination by the trial court that a movant’s plea was voluntary.” Byers, 772 S.W.2d at 804.

This brings us to movant’s second claim concerning the motion court’s determination of the voluntariness of movant’s plea and the denial of his Rule 24.035 motion without an evidentiary hearing. In guilty plea situations, “[a] movant will be entitled to an evidentiary hearing on the issue of voluntariness of his plea where the record of the guilty plea proceeding does not conclusively show his plea was made voluntarily or knowingly.” Franks, 783 S.W.2d at 439; Reeder v. State, 712 S.W.2d 431, 433 (Mo.App.1986).

After review of the record, pleadings, transcripts and files of the guilty plea, we agree with the motion court’s finding that movant’s plea was freely and voluntarily made. The record of the guilty plea hearing refutes movant’s claim that he was mislead by his attorney concerning the future change of the law that would release him from prison in fifteen years. The sentencing judge specifically discussed the range of punishment with the movant, his counsel, Mr. Jimerson and the attorney for the state, Mr. Swingle. This exchange occurred as follows:

Judge: As you know, the range of punishment is either the death penalty or life imprisonment without probation or parole.
Goad: Yes, your Honor.

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Bluebook (online)
839 S.W.2d 749, 1992 WL 314231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/goad-v-state-moctapp-1992.