Johnson v. State

Missouri Court of Appeals

Johnson v. State

805 S.W.2d 349, 1991 Mo. App. LEXIS 359, 1991 WL 33562

CourtMissouri Court of Appeals

DecidedMarch 12, 1991

DocketNo. 58340

StatusPublished

This text of 805 S.W.2d 349 (Johnson 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

Johnson v. State, 805 S.W.2d 349, 1991 Mo. App. LEXIS 359, 1991 WL 33562 (Mo. Ct. App. 1991).

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Opinion

KAROHL, Judge.

Movant appeals from the denial of his Rule 24.035 motion for post conviction relief after an evidentary hearing. On June 22, 1989, movant simultaneously entered pleas of guilty in two separate causes: (1) unlawful use of a weapon, § 571.030 RSMo 1986 (Cause No. 881-3614); and (2) robbery-in the second degree, § 569.030 RSMo 1986 and second degree property damage, § 569.120 RSMo 1986 (Cause No. 881-3930). In exchange for movant’s pleas of guilty, the state recommended sentences of five years for unlawful use of a weapon, eight years for robbery and six months for property damage all to be served concurrently. The court sentenced movant on July 14, 1989, in accordance with the plea bargain.

Movant’s sole point on appeal alleges the motion court erred when it overruled mov-ant’s claim he was denied effective assistance of counsel because his attorney was unwilling to pursue presentation of an alibi defense through the testimony of mov-ant’s mother and aunt. Movant argues he would not have pled guilty except for counsel’s reluctance to present this defense.

At his post conviction relief hearing, movant acknowledged he entered his guilty pleas after trial commenced in Cause No. 881-3930. Movant also acknowledged his “alibi defense” was available only in Cause No. 881-3930 and he was not contesting [350]*350the plea entered in Cause No. 881-3614. The following testimony was adduced from movant at the hearing.

Motion Counsel: ... Do you have any knowledge of what witnesses you would have called had [Cause No. 881-3930] continued to trial?

A. As far as the witnesses that I was aware of was my mother and my auntie.

Q. [Trial counsel] was going to call them?

A. Yeah.

Q. Were they there?

A. Yes, they were. (Our emphasis). Further, trial counsel testified she was willing to present the alibi defense, had endorsed movant’s mother and aunt as witnesses, and would have used them as alibi witnesses if the trial had proceeded.

The record fully and absolutely refutes movant’s allegation trial counsel was unwilling or unprepared to present movant’s alibi defense. Hence, the findings and conclusions of the motion court are supported by the record, and are not clearly erroneous. We affirm. Rule 84.16(b).

PUDLOWSKI, P.J., and GRIMM, J., concur.

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KAROHL, Judge.

Movant appeals from the denial of his Rule 24.035 motion for post conviction relief after an evidentary hearing. On June 22, 1989, movant simultaneously entered pleas of guilty in two separate causes: (1) unlawful use of a weapon, § 571.030 RSMo 1986 (Cause No. 881-3614); and (2) robbery-in the second degree, § 569.030 RSMo 1986 and second degree property damage, § 569.120 RSMo 1986 (Cause No. 881-3930). In exchange for movant’s pleas of guilty, the state recommended sentences of five years for unlawful use of a weapon, eight years for robbery and six months for property damage all to be served concurrently. The court sentenced movant on July 14, 1989, in accordance with the plea bargain.

Movant’s sole point on appeal alleges the motion court erred when it overruled mov-ant’s claim he was denied effective assistance of counsel because his attorney was unwilling to pursue presentation of an alibi defense through the testimony of mov-ant’s mother and aunt. Movant argues he would not have pled guilty except for counsel’s reluctance to present this defense.

At his post conviction relief hearing, movant acknowledged he entered his guilty pleas after trial commenced in Cause No. 881-3930. Movant also acknowledged his “alibi defense” was available only in Cause No. 881-3930 and he was not contesting [350]*350the plea entered in Cause No. 881-3614. The following testimony was adduced from movant at the hearing.

Motion Counsel: ... Do you have any knowledge of what witnesses you would have called had [Cause No. 881-3930] continued to trial?

A. As far as the witnesses that I was aware of was my mother and my auntie.

Q. [Trial counsel] was going to call them?

A. Yeah.

Q. Were they there?

A. Yes, they were. (Our emphasis). Further, trial counsel testified she was willing to present the alibi defense, had endorsed movant’s mother and aunt as witnesses, and would have used them as alibi witnesses if the trial had proceeded.

The record fully and absolutely refutes movant’s allegation trial counsel was unwilling or unprepared to present movant’s alibi defense. Hence, the findings and conclusions of the motion court are supported by the record, and are not clearly erroneous. We affirm. Rule 84.16(b).

PUDLOWSKI, P.J., and GRIMM, J., concur.

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Bluebook (online)

805 S.W.2d 349, 1991 Mo. App. LEXIS 359, 1991 WL 33562, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-state-moctapp-1991.