Roland v. State

824 S.W.2d 526, 1992 Mo. App. LEXIS 277, 1992 WL 29839
CourtMissouri Court of Appeals
DecidedFebruary 21, 1992
DocketNo. 17603
StatusPublished
Cited by5 cases

This text of 824 S.W.2d 526 (Roland 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
Roland v. State, 824 S.W.2d 526, 1992 Mo. App. LEXIS 277, 1992 WL 29839 (Mo. Ct. App. 1992).

Opinion

CROW, Judge.

Movant, Gilbert Ray Roland, commenced this proceeding under Rule 24.035,1 attacking his conviction of the class B felony of sale of a controlled substance. § 195.211, RSMo Cum.Supp.1989. The circuit court conducted an evidentiary hearing and afterward denied relief in an order accompanied by comprehensive findings of fact and conclusions of law. Movant appeals, presenting one assignment of error. It is easier discussed after a narrative of the pertinent facts.

On November 5, 1990, Movant appeared in the Circuit Court of Jasper County (“the plea court”) with his retained lawyer (“defense counsel”) in case number CR590-626FX. The information charged Movant with the class B felony of kidnapping, § 565.110, RSMo 1986 (Count I), and the class C felony of assault in the second degree, § 565.060, RSMo 1986 (Count II). The case was to be tried by jury that date. A venire was present.

That same date, another criminal case, number CR590-965FX, was pending against Movant in the Circuit Court of Jasper County, awaiting preliminary hearing before an associate circuit judge. In that case, Movant was charged .with two counts of the class B felony of sale of a controlled substance. He had no attorney of record in that case.

When Movant and defense counsel appeared for the scheduled trial in CR590-626FX, defense counsel announced a plea agreement had been reached disposing of both cases. The agreement provided Mov-ant would plead guilty to Count II (assault in the second degree) in CR590-626FX and plead guilty to one count of sale of a controlled substance in CR590-965FX. He would receive a two-year sentence on the assault conviction and a ten-year sentence on the controlled substance conviction, the sentences to run concurrently. All other charges pending against Movant would be dismissed and no other charges that could be brought against him would be filed.

The plea court proceeded as required by Rule 24.02. During the hearing, defense counsel explained that although he had not entered his appearance as counsel for Mov-ant in CR590-965FX, he intended to do so that morning. The plea court accepted Movant’s plea of guilty to the assault charge and imposed a two-year sentence.

The plea court then proceeded as required by Rule 29.07(b)(4) and found no probable cause of ineffective assistance of counsel.

The proceeding adjourned so Movant and defense counsel could appear before the associate circuit judge in CR590-965FX and waive preliminary hearing, thereby enabling an information to be filed in the plea court charging Movant with one count of sale of a controlled substance.

When those steps had been completed, Movant and defense counsel reappeared in the plea court. The plea court received Movant’s plea of guilty to the controlled substance charge in compliance with Rule 24.02. During the hearing, defense counsel stated he had examined the report of the officer who bought the controlled substance from Movant, along with the “lab report.”

The prosecutor outlined the facts he intended to prove if the case were tried. Movant conceded that those facts, if presented to a jury, would likely result in his conviction. The plea court again went over the plea agreement with Movant, then asked whether Movant had told defense counsel everything counsel needed to know [528]*528to represent Movant on the controlled substance charge. Movant replied, “Yes.”

The plea court asked defense counsel whether he had had enough time to properly advise Movant in the case. Defense counsel stated he had been aware of the case since about September 26, had spoken to the prosecutor about it, and was able to make an informed professional judgment. Defense counsel explained there appeared to be no defense of entrapment or any possibility of suppression.

The plea court accepted Movant’s plea of guilty to the controlled substance charge and imposed a ten-year sentence, to run concurrently with the sentence in CR590-626FX.

The plea court then proceeded as required by Rule 29.07(b)(4) and found no probable cause of ineffective assistance of counsel.

In seeking post-conviction relief in the controlled substance case2 (CR590-965FX) Movant averred, among other things, that defense counsel “failed to properly investigate the elements of the crime,” failed to “prepare for trial,” and failed “to file appropriate motions to suppress.”

The only evidence presented by Movant in the motion court pertinent to the above complaints was Movant’s testimony that defense counsel discussed no “legal defenses” with Movant, defense counsel failed to “do any type of investigation” or “prepare in any way for trial,” defense counsel did not “speak to any of the witnesses,” and defense counsel filed no “pretrial motions.”

Defense counsel, called as a witness in the motion court by the prosecutor, testified he learned of the controlled substance case within 10 or 15 days after being retained in the kidnapping and assault case. Defense counsel obtained the “lab report” and “narrative reports.” After the prosecutor tendered the plea agreement, defense counsel discussed it with Movant Friday, November 2, 1990. Defense counsel showed Movant the lab report and told him the likelihood of conviction “was pretty strong.” Defense counsel put the plea

agreement in writing, and Movant signed it that date (November 2).

Defense counsel recalled that on November 5, 1990, before the pleas were entered, Movant expressed a belief that the alleged victim in the kidnapping and assault case (whom Movant had married) would not appear to testify. Defense counsel advised Movant he could repudiate the plea agreement if he chose, but if he did and the victim appeared, Movant was “dead meat.” Defense counsel testified, “[Apparently upon reconsideration, [Movant] decided that ... was good advice.”

The motion court’s findings of fact included the following:

... In the course of the investigation of [CR590-626FX], [defense counsel] learned of [CR590-965FX], Although he informed the Movant that he did not represent him in the [latter case, defense counsel] felt it prudent to investigate [it] to see how it may impact on his defense of the assault and kidnapping charges. He obtained the statement of the undercover agent and the laboratory reports early in his investigation and discussed those with the [M]ovant.
... Movant agreed to the conditions of the plea agreement and executed the written agreement. The Movant was on bond at this time and was free to consult with whomever he wished concerning the agreement.
... [Defense counsel] informed Mov-ant that the investigation he had made on the drug case indicated a very strong case against Movant_ [Defense counsel] recommended that Movant accept the plea agreement.
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The motion court’s conclusions of law included the following:

.... [Movant’s] allegations [of ineffective assistance of counsel] generally recite conclusions and not facts. However, an evidentiary hearing was required on those grounds that marginally suggest a factual allegation.
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[529]*529The record of [CR590-965FX] and [CR590-626FX] is replete with evidence that, while ...

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Cite This Page — Counsel Stack

Bluebook (online)
824 S.W.2d 526, 1992 Mo. App. LEXIS 277, 1992 WL 29839, Counsel Stack Legal Research, https://law.counselstack.com/opinion/roland-v-state-moctapp-1992.