Mevius v. State

789 S.W.2d 888, 1990 Mo. App. LEXIS 852, 1990 WL 71099
CourtMissouri Court of Appeals
DecidedMay 30, 1990
DocketNo. 16611
StatusPublished
Cited by5 cases

This text of 789 S.W.2d 888 (Mevius 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
Mevius v. State, 789 S.W.2d 888, 1990 Mo. App. LEXIS 852, 1990 WL 71099 (Mo. Ct. App. 1990).

Opinion

PARRISH, Judge.

Stephen L. Mevius (hereafter referred to as “movant”) appeals from a judgment denying, after an evidentiary hearing, his postconviction motion directed to a conviction for possession of cocaine. § 195.020, RSMo 1986. Sentence was imposed and judgment entered in the underlying criminal case on September 28, 1987. Movant received a seven-year sentence. This proceeding was timely commenced May 27, 1988. Rule 24.035(Z).

Movant, by this appeal, asserts that he was denied his right to effective assistance of counsel in the underlying criminal case (1) “in that counsel failed to adequately advise [movant] that he could have possible success in raising an issue of illegal search and seizure on appeal, when the facts adduced at the hearing demonstrated that the evidence was seized pursuant to an illegal [890]*890search and an illegal arrest, [movant] having been arrested in his motel room without a warrant or exigent circumstances existing,” and (2) “in that counsel failed to adequately advise [movant] that he could have possible success in raising an issue of illegal search and seizure on appeal the facts adduced at the hearing established that [movant’s] arrest lacked probable cause, having been based solely on uncorroborated information from an informant.” Movant asserts that the trial court that heard and determined his motion for post-conviction relief erred in not so finding.

Appellate review of a Rule 24.035 post-conviction motion is limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous. Rule 24.035(j). The findings, conclusion and judgment of a court that heard and determined a post-conviction motion are clearly erroneous if a review of the entire record leaves the appellate court with a definite and firm impression that a mistake has been made. State v. Fraction, 782 S.W.2d 764, 769 (Mo.App.1989); Moton v. State, 772 S.W.2d 689, 691 (Mo.App.1989).

In order for a movant in a post-conviction motion, who pleaded guilty in the underlying criminal case, to establish ineffective assistance of counsel, he must demonstrate that: (1) counsel’s performance was unreasonable under prevailing professional norms, and (2) but for his counsel’s deficient performance, movant would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370-371, 88 L.Ed.2d 203 (1985); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Sanders v. State, 738 S.W.2d 856, 857-58 (Mo. banc 1987). Appellant bears the burden of proving his grounds for relief by a preponderance of the evidence. Rule 24.035(h). That burden, with respect to an allegation of ineffective assistance of counsel, has been characterized as being “heavy” to bear. Driscoll v. State, 767 S.W.2d 5, 7 (Mo. banc 1989); Stevens v. State, 560 S.W.2d 599, 600 (Mo.App.1978); Pickens v. State, 549 S.W.2d 910, 912 (Mo.App.1977); Lahmann v. State, 509 S.W.2d 791, 794 (Mo.App.1974).

In the underlying criminal case, movant was arrested at a motel after the motel owner had entered movant’s room (while movant was away from the premises) and discovered a bag containing a white substance. The motel owner entered the room to determine whether it was still being occupied by movant. The motel owner called the police. An officer was dispatched to the motel. Upon arriving at the motel, the officer accompanied the motel owner to the room movant had rented. The motel owner directed the officer to a drawer where the owner had observed the bag containing the white substance. The officer opened the drawer, took a sample of the substance, closed the bag and the drawer and left the premises.

Later, other officers who were watching the motel saw movant and a female companion go to the motel room where the bag with the white substance was found. The officers approached the room with drawn guns. Movant came outside the room and was arrested. Movant was searched and ten small cellophane bags containing white powder, later determined to be cocaine, were found in the pockets to his clothing. Movant’s female companion was arrested in the doorway to the motel. She then closed the door and retreated inside the room. The arresting officers followed her inside and took her into custody. The paper bag and the white substance it contained were seized as evidence.

A motion to suppress evidence was filed in the underlying criminal case on movant’s behalf. That motion was directed to the items seized at the motel — the small cellophane bags of white powder taken from the pockets of movant’s clothing and the paper bag containing a white substance which was found in the motel room. The motion to suppress was overruled followed an evidentiary hearing.

[891]*891On the day movant’s criminal case was set for trial, movant pleaded guilty pursuant to a negotiated plea agreement.1 The court accepted the negotiated plea agreement, with a modification to which movant agreed, n. 1 supra, and imposed the recommended punishment. Post-conviction review of a sentence based upon a plea of guilty is limited to an inquiry of whether the guilty plea was voluntary and entered with an understanding of the nature of the charge. Rice v. State, 585 S.W.2d 488, 493 (Mo. banc 1979); Gawne v. State, 729 S.W.2d 497, 499 (Mo.App.1987). Effectiveness of counsel is relevant only if the voluntariness of the plea was affected. Id. Unless counsel in the criminal case was so incompetent that the guilty plea was not entered voluntarily and with an understanding of the nature of the charge, adequacy of counsel is immaterial. Rice v. State, supra.

At movant’s evidentiary hearing on his Rule 24.035 motion, the trial court heard the testimony of movant and the testimony of the attorney who represented movant in the criminal case. The trial court also had the transcript of the guilty plea hearing and the transcript of the evidentiary hearing on the motion to suppress in movant’s criminal case. The transcript of the guilty plea proceeding includes the following colloquy regarding the motion to suppress and its affect on movant’s decision to plead guilty:

MR. BAKER [Movant’s attorney in the criminal case]: Yes, Your Honor. I wish the Court to, to know, uh, that first of all with regard to medications mentioned earlier, I’ve known Mr. Mevius now for some time while representing him. I can see no difference in his behavior because of medication. Secondly, I did advise my client regarding the possibility of taking his case to jury trial and then appealing Your Honor’s ruling on the motion to suppress.

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Cite This Page — Counsel Stack

Bluebook (online)
789 S.W.2d 888, 1990 Mo. App. LEXIS 852, 1990 WL 71099, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mevius-v-state-moctapp-1990.