Gray v. State

976 S.W.2d 646, 1998 Mo. App. LEXIS 1736, 1998 WL 668247
CourtMissouri Court of Appeals
DecidedSeptember 30, 1998
DocketNo. 21981
StatusPublished
Cited by1 cases

This text of 976 S.W.2d 646 (Gray 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
Gray v. State, 976 S.W.2d 646, 1998 Mo. App. LEXIS 1736, 1998 WL 668247 (Mo. Ct. App. 1998).

Opinion

GARRISON, Chief Judge.

Larry G. Gray (“Movant”) was charged with possession of a controlled substance (cocaine) in violation of § 195.202. The case was set for trial on August 16, 1995. On June 6, 1995, Movant appeared with counsel and entered a plea of guilty pursuant to a plea agreement. In keeping with that agreement, the prosecutor recommended a seven-year sentence, suspension of the execution of that [647]*647sentence, and supervised probation for five years. The trial court followed that recommendation, but additionally required that Movant submit to drug testing as requested by his probation officer.

A probation violation report was filed concerning Movant in January 1996, but the court ordered him continued on probation. Another violation report was filed in June 1996, alleging that Movant had tested positive for cocaine. Another similar report was filed later that same month, alleging that Movant had admitted using cocaine, had failed to report to his probation officer as directed, and had failed to notify the officer of a change of residence. The court revoked Movant’s probation after he admitted having violated its terms, and ordered the previously imposed sentence to be executed. The order revoking probation, however, recommended that Movant be placed in an institutional treatment center and provided that the trial court would retain jurisdiction pursuant to § 559.116. The trial court indicated its intent to place Movant back on supervised probation upon a successful completion of the treatment program and receipt of a favorable report from the department of corrections. The court released Movant on his own recognizance and ordered him to report to the sheriffs office for transportation to the Missouri Department of Corrections at the direction of his probation officer.

Movant failed to appear when directed by his probation officer, and he was subsequently arrested on a capias warrant. When he appeared before the trial court, he said that he had not appeared to be transported to the department of corrections because he “didn’t have no way down there.” The trial court then amended its previous order relative to retaining jurisdiction pursuant to § 559.115, and ordered that the previously imposed seven-year sentence be executed.

Movant filed a pro se Motion To Vacate Or Set Aside The Judgment Or Sentence pursuant to Rule 24.035, which was amended by appointed counsel. The motion court denied the motion after an evidentiary hearing. In its Findings of Fact and Conclusions of Law, it noted the State’s contention that Movant should be denied relief by applying the “escape rule,” but concluded that it should determine the post-conviction motion on its merits rather than denying relief by applying the rule.

The State urges on this appeal that consideration of the merits of Movant’s appeal should be barred by applying the “escape rule.” The “escape rule” operates to deny the right of appeal to a defendant who escapes justice. State v. Troupe, 891 S.W.2d 808, 809 (Mo. banc 1995). It has been held that the “escape rule” may result in the dismissal of an appeal from the denial of a post-conviction motion just as well as a direct appeal. Id. at 812; Hicks v. State, 824 S.W.2d 132, 134 (Mo.App. S.D.1992); Stradford v. State, 787 S.W.2d 832, 833-34 (Mo. App. E.D.1990). The rule has been applied to deny relief under a post-conviction motion where the movant failed to appear for sentencing. Vangunda v. State, 922 S.W.2d 857, 858-59 (Mo.App. S.D.1996). The same has been true where a movant, who was on probation, left the state without informing his probation officer. Clayton v. State, 910 S.W.2d 369, 370 (Mo.App. S.D.1995); Hicks, 824 S.W.2d at 134.

The “escape rule” is based on several rationales, including the need of a court to retain control over a defendant; to preserve respect for the judicial system; to prevent administrative problems for courts; and to discourage escape. Id. at 134. An escape shows contempt for the judicial system, and the courts have recognized that those who seek the protection of the legal system must be willing to abide by its rules and decisions. Id. In Troupe the Missouri Supreme Court held .that the relevant inquiry in deciding whether to apply the “escape rule” is whether the escape adversely affects the criminal justice system, a decision left to the sound discretion of the appellate tribunal. 891 S.W.2d at 811.

Although the record on appeal in the instant case does not clearly indicate what the time interval was between Movant’s failure to appear for transportation to the department of corrections and his arrest under the capias warrant, the State argues in its brief that it was two days. In State v. Branch, 811 [648]*648S.W.2d 11, 12 (Mo.App. W.D.1991), the court said that “[i]t is the escape and not the lapse of days the escape measures that operates to disentitle the right of appeal....” While any attempt to escape justice indicates an unwillingness to abide by the rules and decisions of the legal system, as well as contempt for the authority of the courts, we are reminded of the holding in Troupe that the determinative question is whether such escape or evasion adversely affects the criminal justice system. 891 S.W.2d at 811. The motion court here chose not to apply the escape rule and decided, instead, to rule the ease on the merits. We are unable to conclude that it erred in that respect. We too will decide the case on the merits, but in doing so we do not intend to indicate that these facts could never justify imposition of the escape rule.

In his sole point on appeal, Movant contends that the motion court erred in denying his Rule 24.035 motion because his plea counsel was ineffective, resulting in his guilty plea having been involuntary and not intelligently entered. In support, he argues that his plea counsel failed to investigate the case, and that he would not have pleaded guilty if counsel had contacted witnesses who were in the car when he was arrested and “confirmed that he was not guilty.”

Although the record before us is less than clear, it appears that Movant was arrested when the car in which he was riding was stopped by authorities. We gather that four other people also occupied the car, but that only Movant was arrested and charged with possession of cocaine. We assume that the charge arose from cocaine that was found in the ear at the time of arrest.

In his Rule 24.035 motion, Movant pleaded, among other things that:

3. Trial counsel was constitutionally ineffective, which led to movant having to plead guilty, because he failed to conduct a reasonable investigation of the case on movant’s behalf. Trial counsel did not investigate movant’s allegations that he was merely a passenger in the vehicle, that movant had no control of the vehicle in which he was riding, that movant had no possessory interest in the vehicle or any of the vehicle’s contents, and that movant was the only person arrested of the five [5] persons in the vehicle. A reasonable investigation could have provided trial counsel with sufficient information to exonerate movant.

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219 S.W.3d 858 (Missouri Court of Appeals, 2007)

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Bluebook (online)
976 S.W.2d 646, 1998 Mo. App. LEXIS 1736, 1998 WL 668247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gray-v-state-moctapp-1998.