Seales v. State

SEILER, Judge,

concurring in part and dissenting in part.

I agree we should require from trial counsel that degree of performance which conforms to the care and skill of a reasonably competent lawyer rendering similar services under the same or similar circumstances. I agree further that the present case should be reversed and remanded for an evidentiary hearing at which the standard will be applied.

However, in the event counsel’s performance is found below the standard, then I believe the judgment of conviction should be set aside. We should not adopt this new standard on the one hand and on the other promptly dilute, weaken, or undercut it by requiring that in spite of counsel’s failure to provide assistance measuring up to the standard there must be something else shown before we will give relief.

That the conviction should be set aside when there has been inadequate assistance of counsel follows from several fundamental principles, in my opinion. These are, first, the constitutional right to assistance of counsel under the Sixth Amendment, Holloway v. Arkansas, 435 U.S. 475 , 98 S.Ct. 1173 , 55 L.Ed.2d 426 (1978); Herring v. New York, 422 U.S. 853 , 95 S.Ct. 2550 , 45 L.Ed.2d 593 (1975); Gideon v. Wainwright, 372 U.S. 335 , 83 S.Ct. 792 , 9 L.Ed.2d 799 (1963) and under art. I, § 18(a) of the Missouri Constitution; second, the presumption of innocence; third, the requirement that the state prove the defendant guilty beyond a reasonable doubt; and fourth, the adversary system. Without assistance of counsel, these guaranteed and individual rights are meaningless, because as Justice Walter V. Schaefer so accurately pointed out while on the Supreme Court of Illinois, “[o]f all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have.” Schaefer, Federalism and State Criminal Procedure, 70 Harv.L.Rev. 1, 8 (1956). “[TJrial errors may be especially significant since it takes so little to establish the requisite doubt that might convince a jury to acquit” and “the very essence of American criminal law is proof beyond a reasonable doubt.” Saltzburg, The Harm of Harmless Error, 59 Va.L.Rev. 988, 1004, 1032 (1973).

“The constitutional guarantee of ‘effective assistance’ of counsel is a guarantee with a purpose. That purpose is not, as some people seem to believe, to ‘shift the balance’ against the ‘peace forces’ in favor of the ‘criminal element.’ It is to assure that our adversary system of justice really is adversary and really does justice.” Ba-zelon, The Defective Assistance of Counsel, 42 Univ. of Cin.L.Rev. 1, 2 (1973).

When ineffective assistance does occur, the defendant should be given a new trial. Defendant should not also have to show the trial was not “fair” (a highly subjective and vague requirement which begs the question, as it assumes a trial can be “fair” without *738 adequate assistance of counsel) or that in addition to being deprived of his constitutional right to assistance of counsel, he was “prejudiced” (which again begs the question, as it assumes deprivation of a constitutional right is not prejudicial). 1

In Hall v. State, 496 S.W.2d 300 (Mo.App.1973), with all eight judges of the St. Louis district concurring, the court of appeals granted defendant relief for the reason that counsel failed to meet the minimum level of representation required and thus denied defendant his rights under the Sixth Amendment. Counsel, instead of investigating defendant’s account that he shot decedent in self-defense and was not guilty of the charge of second degree murder, concentrated exclusively on plea bargaining, which culminated in a plea of guilty and a sentence of 18 years. The court held the record was devoid of adequate assistance of counsel. The court required no inquiry as to whether investigation would substantiate the claimed defense. Inadequacy of counsel alone warranted setting aside the plea and sentence and remand for further proceedings. I believe the court of appeals handled the matter correctly and that we should make the same disposition if it is determined that there has been ineffective assistance of counsel here.

Likewise, in Rodgers v. State, 567 S.W.2d 634 (Mo. banc 1978) a majority of the court believed that a pro se petition under 27.26 stated sufficient grounds to warrant appointment of counsel (something which could not be done under the law as it stood at that time unless the petition stated a valid claim) where petitioner’s claim of ineffective assistance of counsel was that defense counsel did not see him until the day of trial. The majority of the court did not inquire whether defendant was prejudiced thereby, despite the fact that the evidence in the original trial, State v. Rodgers, 525 S.W.2d 447 (Mo.App.1975), was that defendant was caught red-handed and there was no defense to be made. Ineffective assistance of counsel was per se sufficient to state a valid claim.

If, however, the court will not hold in today’s decision that ineffective assistance of counsel, without more, entitles defendant to a new trial, then I believe that the court should at least adopt Judge Donnelly’s view expressed in his dissenting opinion that where there has been ineffective assistance of counsel automatic reversal must follow unless the reviewing court is able to declare a belief that the error was “harmless beyond a reasonable doubt” and that the burden of showing lack of prejudice, beyond a reasonable doubt, is on the state.

The two federal decisions referred to by the principal opinion, Reynolds v. Mabry, 574 F.2d 978 (8th Cir. 1978) and Witham v. Mabry, 596 F.2d 293 (8th Cir. 1979), speak about the petitioner having a “heavy burden” to prove unfairness resulted from ineffective assistance of counsel, and that there is a “presumption” that counsel is competent and that petitioner is under a “heavy burden” to override this presumption. However, our courts should be aware in considering this “presumption” that it exists only “until a showing to the contrary has been made.” United States v. Kelton, 518 F.2d 531, 533-34 (8th Cir. 1975); Crowe v. South Dakota, 484 F.2d 1359, 1361 (8th Cir. 1973); Kilgore v. United States, 323 F.2d 369, 373 (8th Cir. 1963). Once a petitioner makes a showing of ineffective assistance, the presumption, of course, drops out of the case.

Furthermore, as to “heavy burden” (whatever this means), it does not in any way change the burden of proof in a 27.26 case, which is stated by our rule itself, rule 27.26(f), as follows: “The prisoner has the burden of establishing his grounds for relief by a preponderance of evidence.” The burden of proof is not any different for a movant in an ineffective assistance of coun *739 sel claim than it is in any other type of 27.26 claim.

. “The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” Glasser v. United States, 315 U.S. 60, 76 , 62 S.Ct. 457, 467 , 86 L.Ed. 680 (1942). It is not a prerequisite to entitlement to effective assistance of counsel that defendant be innocent or that there not be a strong case against him or that the issue of guilt or innocence be a close one.