May v. State

921 S.W.2d 85, 1996 Mo. App. LEXIS 445, 1996 WL 117631
CourtMissouri Court of Appeals
DecidedMarch 19, 1996
DocketNo. WD 51206
StatusPublished
Cited by8 cases

This text of 921 S.W.2d 85 (May 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
May v. State, 921 S.W.2d 85, 1996 Mo. App. LEXIS 445, 1996 WL 117631 (Mo. Ct. App. 1996).

Opinion

ELLIS, Presiding Judge.

Alphonso Lee May was charged with distribution of a controlled substance (§ 195.211) 1. On March 5,1993, pursuant to plea negotiations, May appeared before the Circuit Court of Clinton County and entered a plea of guilty to the charge. A hearing was held and the court determined May was making the guilty plea voluntarily, intelligently, and with a full understanding of the charge and consequence of his plea. Furthermore, the court found May understood his rights attending a jury trial and the effect of his guilty plea on those rights. Thereafter, May [86]*86was sentenced to ten years imprisonment. However, pursuant to the plea arrangement, execution of the sentence was suspended and May was placed on five years probation. Subsequently, May violated the terms of his probation and on December 9,1994 appeared before the Circuit Court of Clinton County. The court revoked May’s probation and ordered execution of his prison sentence. May timely filed a pro se Rule 24.035 motion for post-eonviction relief. After appointment of counsel, a timely amended motion was filed alleging, inter alia, that May received ineffective assistance of counsel in that his trial counsel failed to investigate the state’s main witness and' additionally, that his trial counsel had previously represented the same witness, thereby causing a conflict of interest which adversely affected her representation of May. On June 9, 1995, the motion court denied May’s motion without an evidentiary hearing. May now appeals.

This court’s review of a denial of a Rule 24.035 motion is limited to a determination whether the findings and conclusions of the motion court are clearly erroneous. Rule 24.035(j); Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989). The motion court’s findings and conclusions are clearly erroneous if, after a review of the entire record, this court is left “with the definite and firm impression that a mistake has been made.” Day, 770 S.W.2d at 695-96 (citing Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987)).

In his 24.035 motion, May alleged his trial counsel was ineffective for the following reasons: 2

Movant contends that counsel failed to investigate the character and past criminal history of the State’s informant, Erie Cly-more. Movant contends that had such an investigation been conducted, it would have uncovered that the informant was a known drug user and fence who was on probation at the time he assisted law enforcement in its case against movant. Movant was prejudiced in that the above is impeachment evidence which would have been available at the time of trial. Movant contends that but for counsel’s failure, there is a reasonable probability he would not have pled guilty and insisted on going to trial.
Movant contends that a conflict of interest rendered counsel’s assistance ineffective. Before counsel was assigned movant’s ease, counsel represented the state’s informant, Eric Clymore, in a criminal matter. Movant contends that this conflict of interest adversely affected counsel’s performance and prejudice movant.

May contends these factual allegations, if proven true, would merit relief. However, the motion court denied his Rule 24.035 motion without an evidentiary hearing.

The issue before us is whether the motion court erred in denying May’s Rule 24.035 motion without an evidentiary hearing. The motion court found the record conclusively refuted May’s allegations. In particular, the motion court relied on the sentencing proceeding transcript wherein May testified he was satisfied with his trial counsel’s performance as follows:

Q: (By the court) You have been represented by Miss Spencer in this case? A: (By Defendant) Yes, sir.
Q: Has she done everything you’ve asked her to do?
A: Yes, sir.
Q: Including attempting to get that expert testimony on the voice analysis? A: Yes.
Q: Is there anything she hasn’t done that you wished she would do?
A: No, sir.
Q: Are you satisfied with everything she’s done for you?
A: Yes, sir, I am.
Q: Have any complaints about anything she’s done?
A: No, sir.
Q: Do you feel , like you’ve had an adequate opportunity to talk to her about this case and also have her explain to you the effect of having a plea of guilty to the charge?
[87]*87A: Yes, sir.
Q: Given all the things we’ve gone over now do you feel like you need additional time to talk to her before we go on?
A: No, sir.
Q: Now, you understand that if the Court accepts this plea agreement you would receive a 10-year sentence and be placed on probation for five years with several conditions, and you’d have to live up to those conditions?
A: I would, sir.

The motion court also relied on May’s additional testimony, heard at the probation revocation proceeding, wherein May again stated his satisfaction with his trial counsel’s performance.

Q: Now at the time that you originally pled guilty, did you feel like you had an adequate opportunity to talk to your attorney about this case?
A: Yes, sir.
Q: Do you feel like she had done everything you had asked her to do?
A: Yes, sir.
Q: Do you have any complaints about anything Mona did previously on your case?
A: No, sir.
Q: Now as far as Mr. Goucher, do you feel like he done everything you asked him to do?
A: Yes, sir.
Q: Do you have any complaints about anything he did?
A: No, sir.
Q: Now regarding either one of your attorneys, is there anything you want the Court to consider about what they did or didn’t do before the Court makes a determination of whether or not there is any probable cause to believe you received ineffective assistance of counsel; anything at all?
A: It don’t make no difference.
Q: All right. Do you believe they did provide you assistance?
A: Yes, sir.
Q: Do you have any complaints about anything they did at all?
A: No.

May contends the motion court improperly relied on the statements he made at the sentencing and probation revocation hearings when denying his Rule 24.035 motion without an evidentiary hearing.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Markell D. Jackson v. State of Missouri
Missouri Court of Appeals, 2023
Morrison v. Lewis
E.D. Missouri, 2021
Bogard v. State
356 S.W.3d 850 (Missouri Court of Appeals, 2012)
Schnelle v. State
103 S.W.3d 165 (Missouri Court of Appeals, 2003)
Brown v. State
66 S.W.3d 721 (Supreme Court of Missouri, 2002)
Morrison v. State
65 S.W.3d 561 (Missouri Court of Appeals, 2002)
Royston v. State
948 S.W.2d 454 (Missouri Court of Appeals, 1997)
Summers v. State
934 S.W.2d 563 (Missouri Court of Appeals, 1996)

Cite This Page — Counsel Stack

Bluebook (online)
921 S.W.2d 85, 1996 Mo. App. LEXIS 445, 1996 WL 117631, Counsel Stack Legal Research, https://law.counselstack.com/opinion/may-v-state-moctapp-1996.