656 S.W.2d 803 | Mo. Ct. App. | 1983
Appellant was convicted of Statutory Rape, Section 566.030, RSMo 1978, by the verdict of a jury, and was sentenced to 25 years imprisonment as a persistent offender. He seeks to vacate that conviction under Rule 27.26. After the public defender was appointed, and on June 14, 1982, appellant’s counsel filed an amended motion supplementing appellant’s pro se motion in which he alleged that his counsel was ineffective “in that movant was severed from being allowed to entertain comp ¡rtible attorney client relationship with his counsel of record and thereby avers that the relationship required between counsel and client was irretrievably broken all in viola
In Point I, appellant says that the trial court erred in not granting his request for a trial transcript. On June 14, 1982, the court, on its docket sheet, noted that no specific portions of the transcript were requested, and therefore it did not order it, and “Petitioner to request specific portions of the trial proceedings to be transcripted, request to be submitted by 6-17-82 and ruled upon by Court without argument; thereafter, Court to rule on 27.26 motion, KGA.” On June 22, 1982, the court ruled: “Court upon request of Petitioner for transcript of underlying felony conviction finds that said request should be denied in that such transcript would add no new credible evidence to that already presented at hearing on 6-14-82.”
It is not necessary to consider these issues which were considered by the trial court, but which are not pursued on this appeal, and thus are deemed abandoned: That appellant was severed from being allowed to entertain compatible counsel; that appellant was denied his right to testify on his own behalf; that there was improper evidence of his prior convictions; and that the arrest warrant was not authorized by a judge or magistrate, but was signed only by the clerk, all these allegations going toward the charge of ineffective assistance of counsel.
As to the issue of appellant’s right to a partial transcript, the record does not show that counsel ever pointed out to the court the portions desired, but that is really beside the point. None of the allegations would be aided in proof by reference to the transcript. There is no allegation that something happened at the trial which would have deprived appellant of any constitutional right. All allegations were provable by testimony adduced in this Rule 27.-26 hearing. No part of the original trial transcript was necessary to the determination of the questions raised so as to entitle appellant to have one ordered under State v. Keeble, 427 S.W.2d 404, 408[4] (Mo.1968), which holds that a defendant is not entitled to such a transcript simply to permit a fishing expedition to determine if any kind of error can be found. See also McNamara v. State, 502 S.W.2d 306, 309[4] (Mo.1973); and Trout v. State, 523 S.W.2d 529, 533[3,4] (Mo.App.1975). Appellant’s first point is overruled.
As to the allegation that counsel failed to take an appeal, the record shows this: Appellant talked with his counsel, Mr. Tate, after the trial, about an appeal: “Q. What did he tell you about taking appeal? A. Said if he put in an appeal it probably wouldn’t do no good no way. He asked me, he said, ‘Do you want to put in an appeal?’ I said, ‘If it helps the case, yes.’ But, then, he said, ‘It probably wouldn’t do no good.’ And, I said, ‘If it ain’t going to do no good, why file it then?’ And, that was it.” Counsel did not tell appellant why it would not do any good; appellant did not ask him
The next aspect of asserted ineffectiveness of counsel is that counsel continued to represent appellant after a conflict of interest arose. Appellant presented no evidence on this allegation, but Mr. Tate testified that he had received a letter from a Fayette, Missouri, attorney who was representing appellant’s brother, a Rusty Jackson or Munk Cowans, as he was known (but whom Mr. Tate did not know). Appellant was told that Mr. Tate was the father of a six-year old girl, and that his law firm represented the alleged victim in a crime of which Jackson (or Cowans) had been accused. Mr. Tate asked appellant if these two facts made any difference to him, or if he felt Mr. Tate would be prejudiced toward him, and he answered, “no”. No prejudicial conflict of interest is shown, and the assertion is overruled.
Appellant acknowledged that there was a discussion on the morning of trial about a 60 year prison term, but further acknowledged that it could have been the maximum for both the statutory rape charge and one of sodomy, which, according to Mr. Tate, would have been the prosecutor’s recommendation. There was a plea bargain in which the prosecutor was offering ten years and ten years to be served at the same time. Mr. Tate explained this to appellant, and he seemed to understand it. Mr. Tate told him of the offer and if he felt he was not guilty, he had the right to a trial. It was appellant’s opinion that he was not guilty. “Therefore, he wanted nothing to do with the plea bargain.” Mr. Tate told him he had a choice of ten years or of what the jury might give him. In rebuttal, appellant testified that he did not understand that the plea bargain was a total of only 10 years. This testimony as to the advice of a plea bargain and appellant’s lack of understanding of the concurrent sentences was for the trial court to determine. The contention is overruled.
The order overruling the Rule 27.26 motion is not clearly erroneous, and the judgment is therefore affirmed.
All concur.