Oliver v. State

973 S.W.2d 580, 1998 Mo. App. LEXIS 1579, 1998 WL 544686
CourtMissouri Court of Appeals
DecidedAugust 28, 1998
DocketNo. 21856
StatusPublished
Cited by2 cases

This text of 973 S.W.2d 580 (Oliver 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
Oliver v. State, 973 S.W.2d 580, 1998 Mo. App. LEXIS 1579, 1998 WL 544686 (Mo. Ct. App. 1998).

Opinion

GARRISON, Presiding Judge.

Tracy Oliver (“Movant”) was charged, by substitute information in lieu of indictment, with two counts of selling cocaine. His jury trial commenced on March 17,1995, but after opening statements, one of the defense attorneys 1 announced that Movant wanted to withdraw his plea from not guilty to guilty. Although the impetus for this change is not precisely described in the record before us, it appears that the defense had just discovered that Officer Chris Graves (“Officer Graves”), who was scheduled to testify for the State about his observations while conducting surveillance of the drug sales allegedly made by Movant, was the same officer who had been involved in an earlier assault ease against Movant and could positively identify him. This revelation apparently had a significant effect on the defenses’ assessment of the chances of successfully defending the case. Movant did plead guilty and was sentenced to two concurrent prison terms of ten years each.

[582]*582Movant then filed a motion pursuant to Rule 24.035,2 which was subsequently amended by appointed counsel. In his amended motion, Movant alleged, among other things, that he had been denied due process of law in that the trial court failed to comply with Rule 24.02 before accepting his guilty plea by failing to personally address him in open court and inform him of his rights. He also alleged that his defense attorneys were ineffective because, although the identity of Officer Graves as a potential witness had been disclosed prior to trial, they did not investigate to discover that he would positively identify Movant until the morning of trial. Those motions were summarily denied by the motion court without making any specific findings of fact or conclusions of law. This court reversed that denial and remanded the case to the motion court for compliance with the requirements of Rule 24.035(j). Oliver v. State, 936 S.W.2d 242, 244 (Mo.App. S.D. 1996). Thereafter, the motion court entered an Order and Judgment denying the Rule 24.035 motions without an evidentiary hearing. Movant appeals that ruling.

Appellate review of the denial of a Rule 24.035 motion is limited to determining whether the findings and conclusions of the motion court are clearly erroneous. Rule 24.035(k); Day v. State, 770 S.W.2d 692, 695 (Mo.banc 1989). Such findings and conclusions are deemed clearly erroneous only if, after review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made. Id. at 695-96. To, be entitled to an evidentiary hearing pursuant to a Rule 24.035 motion, the movant must allege facts, not conclusions, which, if true, would warrant relief; the factual allegations must not be refuted by the record; and the matters complained of must prejudice the movant. Vernor v. State, 894 S.W.2d 209, 210 (Mo.App. E.D.1995).

We first consider Movant’s second point on appeal in which he contends that the motion court erred in denying, without an evidentia-ry hearing, the contention in his amended Rule 24.035 motion that his attorneys were ineffective by failing to interview Officer Graves prior to the morning of trial. He argues that he was represented by more than one public defender; that up until the morning of trial, his attorneys believed that his case was “winnable;” that after the parties selected a jury and made their opening statements, Movant’s attorneys decided that his case was not even “triable” due to the newly discovered and devastating testimony that would be offered by Officer Graves; that Movant’s attorneys knew of the officer’s existence through discovery, but that it was only when counsel learned the morning of trial that the officer would positively identify Mov-ant as the perpetrator of the offense that they changed their advice to Movant; that pursuant to such advice, Movant pleaded guilty; that the attorneys were ineffective in failing to contact, interview or depose the officer prior to the morning of trial; and that but for the attorneys’ ineffectiveness, Movant would have insisted on proceeding to trial.

A claim of ineffective assistance of counsel requires that a defendant show that counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and that the Defendant was :prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 694-95, 104 S.Ct. 2052, 2068, 80 L.Ed.2d 674, 698 (1984). (emphasis added). A court need not determine the performance component before examining for prejudice. Sanders v. State, 738 S.W.2d 856, 857 (Mo.banc 1987) (citing Strickland, at 686, 104 S.Ct. 2052). If it is easier to dispose of the claim on the ground of lack of sufficient prejudice, the reviewing court is free to do so. Id. In a guilty plea case, any claim of ineffective assistance of counsel is immaterial except to the extent that it impinges the voluntariness and knowledge with which the plea was made. Id. In order to show prejudice in a guilty plea case, a movant must prove that, but for the errors of counsel, he would not have pled guilty and would have demanded a trial. State v. Roll, 942 S.W.2d 370, 375 (Mo.banc 1997).

[583]*583In his amended motion, Movant alleged generally that his guilty plea “was the result of coercion,” and that his counsel “pressured movant into a guilty plea under fear they would lose if they continued to proceed.” He also alleged that he was prejudiced by the failure to interview Officer Graves prior to trial because the late discovery “resulted in a last-minute, forced plea bargain of ten (10) years on each count, to run concurrently.” He then alleged that had his counsel interviewed and deposed Officer Graves prior to trial, “there is a reasonable probability mov-ant would not have pleaded guilty and insisted on going to trial.”

These claims are not only couched in con-clusory terms, but the record also refutes them. The record reveals that Movant assured the trial court that he was pleading guilty because he was guilty, he had not been coerced or forced to plead guilty, and that he had no complaints or criticisms about his attorneys. It also reveals that he received the same plea bargain which had been offered earlier by the prosecutor.

It is Defendant’s responsibility to demonstrate that the information which he alleges should have been discovered would have aided or improved his position. Yoakum v. State, 849 S.W.2d 685, 688 (Mo.App. W.D.1993). Movant’s complaint is the timing of the discovery of Officer Graves’ anticipated testimony. There is no indication that having the information about Officer Graves earlier would have changed his decision about pleading guilty. He does not allege any facts which are not refuted by the record and which, if true, would entitle him to relief. Movant has failed to establish a right to an evidentiary hearing on the matters complained of in this point. This point is, therefore, denied.

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

Related

Jackson v. State
366 S.W.3d 656 (Missouri Court of Appeals, 2012)
Gray v. State
108 S.W.3d 86 (Missouri Court of Appeals, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
973 S.W.2d 580, 1998 Mo. App. LEXIS 1579, 1998 WL 544686, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oliver-v-state-moctapp-1998.