Opposition Brief — Missouri v. Presley

ercinarees “paca,” _—

NO. 88-176

Supreme Court, U.S.

FILED

AN 41988

JOSEPH F. SPANIOL, JR.

CLERK

_ STATE OF MISSOURI,

ibe is

“= ‘Petitioner, “see

vs.

ances ‘KENNETH PRESLEY,

* “allempondent. Se 4

a

sae SS RES %

me <a BRIEF OF RESPONDENT IN OPPOSITION TO PETITION

” OFFICE OF THE PUBLIC DEFENDER

"Wes ; 31ST JUDICIAL CIRCUIT

P en ee Margaret Elise Branyan

ae _,»Assistant Public Defender

eal ‘ : iat

le, SiyeieiaRe Sakae Anne Hall See

NARS meee ciate. 5 Public Defender

NT sae my ol a re

‘Attorneys for Respondent

Page

Table Of Authorities... .ccccccccsssacscsssscsscesvsess 3

Statement Of CASE... cc cccccccccccccccscccsseseseveces 5

AL QUMONE . cc ccccccccesecereeeeeseseseses cuweeee were r ss 7

COMCLUBLOM cs oc eka cece etscesnseseecnswacbesevecteeeeawen 19

Appendix: Supreme Court Rule 17.....eeeeeeeeecensees Al

Missouri Supreme Court Rule 27.26......... A2

Commonwealth v. Mancini, 340 Pa. Super 492, 490

Rime Bare CPR. Gees CE. TPRG) 6 acc scccsccvvsces 15

Edgemon v. Lockhart, 768 F.2d 252 (8th Cir.

1985), cert. denied, ___—-U.S. ___,

BOG BiChs EGGS CICS) ona coc ccc cave da ciccanvccess 13

Gordon v. State, 469 So.2d 795 (Fla. Ct. App.

Mason v. State, 289 Ark. 299, 712 S.W.2d

ee ME mee | DR a en a eae eee a 13

McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441,

Te Se, EN P| rr eee ee ee ee 18

Parker v. State, 693 S.W.2d 640 (Tex. Crim.

BOG. A9GS) ccc s ccc sesasonsewtencesnicesscosesees 15

ev. Collins, 106 Ill. 2d 237, 478 N.E.2d

267 (Ill. 1985), cert. denied, 474

U.S. 1027, 106 S.Ct. 585, 88 L.Ed.2d

rg ee ere es Pe ee eee yee eee er eee ee ee 14

People v. Robinson, 154 Mich. App. 92, 397

N.W.24 229 (Mich. Ct. App. 1986) .....ccscccscves 14

Perkins v. State, 695 P.2d 1364 (Okla. Crim.

a ech ire eeu ccna newt ae 15

Presley v. State, Mo. Ct. of Apps., S.D. Slip

Opinion, Handed Down Apr. 15, 1988.......... passim

State v. Harvey, 692 S.W.2d 290 (Mo. banc 1985).........-. 18

State v. Nebinger, 412 N.W.2d 180 (Iowa

es Bs DIST) occ ccc awi aces cect ereccescnvsessascer 14

State v. Presley, 694 S.W.2d 867 (Mo. App. S.D. 1985)...... 5

State v. Price, 104 N.M. 703, 726 P.2d 857

CR. CRs Bc APOE) cc sw ceed eccaeccecceconenesec 15

State v. Stewart, 692 S.W.2d 295 (Mo. banc 1985)........... 9

State v. Thompson, 541 S.W.2d 16 (Mo. App. 1976).......... 10

Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052 80 L.Ed.2d 674 (1984)... ccccccccccees passim

Trenor v. State, 252 Ga. 264, 313 S.E.2d

BOZ (GO. TDGR) car ccccsccwrasccecsrsacssseseseves 14

Turner v. State, 508 N.E.2d 541 (Ind. 1987)... ..ceceeeeeee 14

U.S. v. Cronic, 466 U.S. 660, 104 S.Ct. 2039,

80 L.Ed.2d 657 (1984)... cccrcesecececes oa 28, 9

U.S. v. Taylor, 832 F.2d 1187 (10th Cir. 1987).........e6. 13

Constitutional Provisions

Sixth Amendment United States Constitution.........-+.22e8- 18

Mo. Conat. Art. I, SOC. LBA). ceccndrececsevccesecancces 9, 18

Rules

Supreme Court Rule 17... ..ccccvecceccccccccsscccces eae & Pay |

Missouri Supreme Court Rule 27.26.......ccccccccccccees 5, a7

——

STATEMENT OF THE CASE

Kenneth Presley, the Respondent, was charged in CR583-807FX4

in Greene County, Missouri with the offenses of second degree

sexual abuse, child abuse, sexual abuse in the first degree, and

four counts of rape. The victims were his stepdaughters Lisa and

Melody Ince. He was found guilty at trial and thereafter

sentenced according to the jury verdict. He received one year in

the county jail for sexual abuse in the second degree, five years

for abuse of a child, three years for sexual abuse in the first

degree, and twelve years for each rape. The Court ran the

sentences consecutively. Mr. Presley appealed the convictions

and they were affirmed in State of Missouri v. Presley, 694

S.W.2d 867 (Mo. App. S.D. 1985).

Mr. Presley filed a Motion to Vacate, Set Aside or Correct a

Conviction under Missouri Supreme Court Rule 27.26 (App. at A2).

A hearing was held on that motion and the Honorable Don Bonacker,

Division III of the Greene County, Missouri Circuit Court

sustained Mr. Presley's motion finding he was denied effective

assistance of counsel. (His ruling and all the subsequent

decisions on appeal can be found in the appendix to Petitioner's

Petition.)

The Missouri Court of Appeals, Southern District, en banc,

affirmed Judge Bonacker's ruling. The State of Missouri asked

for rehearing in the Court of Appeals and was denied. The State

of Missouri asked the Missouri Supreme Court to take the case on

transfer and the request was denied. The State of Missouri asks

this Court to grant a writ of certiorari to hear this case.

Mr. Presley objects to this Court granting the State's

petition for writ of certiorari.

ARGUMENT

Mr. Presley was charged with first degree sexual abuse,

second degree sexual abuse, abuse of a child, and rape. During

the voir dire Juror Frances Cates spoke up when the panel was

asked if anyone had been a victim of a crime. He said that he

had been burglarized at his home seven years before but the

articles had been returned. He also said his businesses had been

broken into several times. There had also been an armed robbery.

Further, his daughter was “exposed by an exhibitionist” three

years before (Petitioner's Appendix A69-70). When asked if the

burglaries or his daughter's experience would make him unable to

judge the defendant fairly, he said, "I think I'd be a little

partial to your client, or against your client." He was asked:

"You'd be partial to the State?" He adopted the attorney's

statement by saying, "Right." (Petitioner's Appendix A70.)

Mr. Cates gave four different events which supported his

reason why he would be partial to the Sate. It is typical of a

juror speaking in front of a crowd of potential jurors, in front

of a court, and in front of a defendant, to qualify his or her

statements by softening them. He said he was a "little partial."

What should be understood here was that the juror was a juror for

the State. He could not give Mr. Presley a fair and impartial

trial. Therefore ew»n before the evidence began Mr. Presley had

only eleven jurors listening to his case.

Petitioner argues the prejudice prong of the Strickland test

(Srickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 80 L.Ed.2d

674 (1984)), in that prejudice to Mr. Presley was wrongly

presumed and the motion court and appellate court did not find

actual prejudice. Petitioner asks for review because the

appellate court did not follow Strickland and that the Court of

Appeals' decision was contrary to the rulings of two federal

courts and the decisions in several state courts. Petitioner is

wrong.

A. Strickland v. Washington

This Court requires that in reversing for ineffective

assistance of counsel a defendant must show that: a) counsel's

performance was deficient, and b) this deficient performance

prejudiced the defense. The Court of Appeals, Southern District,

without specifically holding, found the trial counsel's

performance to be deficient. It then found that Mr. Presley was

prejudiced by the ineffective assistance of counsel in not

striking Juror Cates.

The Missouri appellate court specifically found this

Situation was one envisioned by the Strickland court where

prejudice is presumed (Petitioner's Appendix Al5). The

Strickland court mentioned several situations in which prejudice

may be presumed: actual or constructive denial of the assistance

of counsel; state interference with counsel's assistance; and

counsel's conflict of interest. Strickland then refers to U.S.

vy. Cronic, 466 U.S. 660, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984),

which lists even more scenarios: complete denial of counsel; or

when “counsel fails to subject the prosecution's case to

meaningful adversarial testing,” Cronic, 466 at 659. Further:

Circumstances of that magnitude may be present on

some occasions when although.counsel is available

to assist the accused during trial, the likelihood

that any lawyer, even a fully competent one, could

provide effective assistance is so small that a

presumption of prejudice is appropriate without

inquiry into the actual conduct of the trial.

id. at 659-660. The Cronic court also adds that the accused

must show how “specific errors of counsel undermined the

reliability of the finding of guilty.” Jd. at 659, n.26.

The Strickland court offers examples of presumed

prejudice. The Cronic court offers different examples of

presumed prejudice. Obviously, neither decision intended

its list to be exclusive. Nor did this Court intend to bind

all inferior Courts to this Court's list of what can be

presumed prejudicial and what cannot. Prejudice depends on

the error being considered, the circumstances, the evidence,

and the legal precedent of the respective jurisdictions.

Missouri has a strong tradition of ensuring a fair and

impartial jury. The Presley appellate court repeated that a

defendant has a constitutional right to twelve impartial

jurors, not just eleven. (Petitioner's Appendix Al4.) The

Missouri Supreme Court has reiterated over and over:

An accused must be afforded a full panel of

qualified jurors before he is required to expend

his peremptory challenges; denial by a trial court

of a legitimate request by an accused to excuse

for cause a partial or prejudiced venireperson

constitutes reversible error.

State v. Stewart, 692 S.W.2d 295, 298 (Mo. banc 1985).

This proposition rests now only in precedent but is

rooted in the constitutionally guaranteed right of

every accused to a “public” trial by an impartial

jury,” Mo. Const. Art. I, Sec. 18(a), and personi-

fies a dedicated judicial effort to preserve

inviolate this constitutionally guaranteed right

in the broadest sense.

State v. Thompson, 541 S.W.2d 16, 17 (Mo. App. 1976).

Given the enormous solemnity in which Missouri courts

regard the violation of Missouri (and federal)

constitutional rights to an impartial jury, there is no

wonder that the Court of Appeals decided that prejudice can

be presumed.

Please note that a Missouri Court of Appeals decision

allowing a reversal of a criminal conviction is a very

unusual occurrence, especially in the Southern District.

Petitioner is an alarmist when he predicts that the

floodgates will open as a result of this opinion. All that

the Court of Appeals said was this:

The instant record shows that the jury

contained one juror who was, Sy his own admission,

biased.

j - It +8 no answer to say

that the other 11 jurors were free of bias and all

of them agreed upon a verdict of guilty. "A

constitutional jury means twelve men as though

that number had been specifically named; and it

follows that, when reduced to eleven, it ceased to

be such a jury quite as effectively as though the

number had been reduced to a single person.”

Patton v. United States, 281 U.S. 276, 50 S.Ct.

253, 256, 74 L.Ed. 854 (1930).

The instant situation, this court holds, is

an example of the type the Court envisioned by the

language in Strickland: “in certain Sixth

Amendment contexts, prejudice is presumed.” There

was here a denial of the right to trial by jury

This fits the Strickland language, at 104 S.ct.

2067, that “prejudice in these circumstances is so

likely that case-by-case inquiry into prejudice is

not worth the cost.”

Presley v. State, slip opinion at 12 (emphasis added),

(Petitioner's Appendix Al4-15).

10

The Court's decision was limited to the facts of the

case. To use Petitioner's language, “when boiled to its

essence," the decision held this: when a juror announces he

is biased toward the State, and all parties recognize that

he has that bias, and there was absolutely no strategic

reason for defense counsel to leave that juror on the jury,

and when all the evidence shows that the juror was left on

the jury by counsel's mistake, and when that mistake

violates an accused's fundamental state and federal

constitutional] rights, then a court may find that an accused

was denied the right to trial by jury.

That is all the decision says. There are no flood

gates which will open as a result of this opinion.

The policy implications of this decision are minimal.

In fact, so minimal that there is no reason for this Court

to consider this case any further. Under Rule 17 of the

U.S. Supreme Court, a writ of certiorari will be granted

only when there are “special and important reasons

therefor.” This Court will grant a writ of certiorari when

"a state court . . . has decided an important question of

federal law which has not been, but should be, settled by

this Court.” Rule 17(1)(c).

This Court, in Strickland, has already decided the

question of what constitutes ineffective assistance of

counsel under the Sixth Amendment to the United States

Constitution.

ll

This Court will grant a writ of certiorari when the

state court "has decided a federal question in a way in

conflict with applicable decisions of this Court." Rule

17(1)(c). Again, the Court of Appeals referred constantly

to Strickland for its authority and made its decision in

conformity with Strickland. It did not show actual

prejudice because Strickland allows prejudice to be

presumed. That prejudice, according to Missouri law and

federal constitutional law, could be and was presumed.

Therefore, the decision in Presley by the Missouri Court of

Appeals was in keeping with the Strickland decision.

H RISD N

An alternative consideration for granting certiorari is

whether the state court decided a federal question in a way

which conflicts with a decision of another state court of

last resort or of a federal court of appeals. Rule

17(1)(b). Petitioner argues that the Court of Appeals'

opinion is against. the great weight of authority in state

and federal courts which have used the Strickland standard.

Petitioner lists these cases (Petitioner's Brief at 12).

However, in reviewing all the cases cited by Petitioner,

none of the cases cited are in conflict with the appellate

court's decision, one is in agreement, none are factually

similar, and some were even decided before Strickland was

published and therefore didn't rely on any standard

whatsoever. The following are the cases cited by Petitioner

and discussion regarding their nonrelevancy:

-

ie |

U.S. v. Taylor, 832 F.2d 1187 (10th Cir. 1987).

Factually dissimilar from Presley. Counsel used only eight

or nine of his peremptory challenges and waived the rest.

There was no allegation of inability to be impartial by any

juror. There was no discussion of presumed versus actual

prejudice.

Edgemon_ v. Lockhart, 768 F.2d 252 (8th Cir. 1985),

cert. denied, U.S. , 106 S.Ct. 1468 (1986).

Defense counsel didn't strike a certain juror because the

juror was an acquaintance of defense counsel and, even

though the juror knew his cousin would testify, he knew he

could be impartial. It was not a mistake by defense counsel

to keep the juror. It was his tactical decision. Unlike

Presley where the juror was left on by mistake.

Mason v. State, 789 Ark. 299, 712 S.W.2d 275 (Ark.

1986). The Supreme Court of Arkansas reversed a conviction

after determining that the accused was denied effective

assistance of counsel when, among other things, it found

under the Strickland test that the accused was prejudiced by

trial counsel not giving the accused a jury list. If he had

been present during voir dire he could have told trial

counsel that two of the jurors were partial toward the

state, one because she heard rumors about the case, and the

other because she was a victim of a burglary. Trial counsel

did not ask the panel during voir dire about being the

victim of a crime. The Arkansas Supreme Court did not even

discuss proof of actual prejudice; they said they did not

think of any trial strategy which would have permitted these

attorney errors; and they presumed prejudice. This opinion

is in conformity with the Missouri Court of Appeals opinion.

Trenor v. State, 252 Ga. 264, 313 S.E.2d 482 (Ga.

1984). This case was decided before Strickland. The Court

used a different standard than that used in Strickland. The

Court found no ineffective assistance of counsel when the

trial lawyer did not ask the court to wake up a juror during

closing argument.

People v. Collins, 106 I11.2d 237, 478 N.E.2d 267 (Ill.

1985). The court found that the attorney's reason for

keeping a juror who said she could be impartial was

reasonable. The attorney's action therefore didn't even

meet the first prong of the Strickland test.

Turner v. State, 508 N.E.2d 541 (Ind. 1987). The juror

whom the accused said should have been struck had a DWI

conviction but never said he would be partial to the state.

No Strickland discussion at all.

State v. Nebinger, 412 N.W.2d 180 (Iowa Ct. App. 1987).

The facts are completely different here from that in Mr.

Presley's case and there was no discussion of prejudice.

eo v. Robi , 154 Mich. App. 92, 397 N.W.2d 229

(Mich. Ct. App. 1986). All jurors said they could be

impartial. This case is different from Mr. Presiey's and

has no relevant discussion of what a showing of prejudice

must be.

14

Stete v. Price, 104 N.M. 703, 726 P.2d 857 (N.M. Ct.

App. 1986). Ineffective assistance of counsel was not found

because, unlike Mr. Presley's case, trial counsel did

everything he could to correct the error and protect the

accused's rights.

Perkins v. State, 695 P.2d 1364 (Okla. Crim. App.

1985). Not on point. The juror misunderstood counsel's

question. There is no discussion of how to demonstrate

prejudice or of Strickland itself.

mmonwea Vv. ini, 340 Pa. Super. 492, 490 A.2d

1377 (Pa. Super. Ct. 1985). The Court said the accused

agreed with defense counsel's decision not to strike a

juror. There was no discussion of prejudice and the court

used different standards than Strickland's in determining

ineffective assistance of counsel.

Parker v. State, 693 S.W.2d 640 (Tex. Crim. App. 1985).

A juror thought that the accused may be hiding something if

he didn't testify. Defense counse’ did not strike her. The

appellate court suggested that defense counsel could have

had a strategic reason for not striking that juror. The

Court, however, was obviously agonized by the fact that

there was no evidentiary hearing to determine what counsel's

reasons were for not striking the venirewoman. Twice in its

opinion the court asked for evidentiary hearings so it did

not have to decide these issues in the dark. Unlike this

decision, a hearing was held in Presley and the trial

attorney had no strategic reason for not striking Juror

Cates.

15

Finally, in es v. State, 469 So.2d 795 (Fla. Ct.

App. 1985) the Court wrote:

At the time of jury selection, one juror stated

she had heard of this particular case, had

discussed it with friends and was biased. She

further indicated that she had a prejudice against

the defense counsel which would affect her

decision. The trial judge offered to remove the

juror for cause if requested. Defense counsel

permitted her to sit as a juror.

Id, Ot F797

The conviction in Gordon was reversed for several

attorney errors. A discussion of actual versus presumed

prejudice was done given by the Gordon court. That very

fact demonstrates the correctness of the Court of Appeals

decision in Presley. The gross violation of an accused's

constitutional right to trial by a fair and impartial jury

needs no discussion. It is presumed prejudicial, by the

Gordon court, by the Mason court, and by the Presley court.

As can be seen, the Court of Appeals' opinion is not in

conflict with any opinion or with any jurisdiction in spite

of what Petitioner alleges. Indeed it can be read in

conformity with all the above cited decisions and is,

indeed, supported by them. Therefore, under Rule 17(a) (b)

of this Court, there is no conflict to be resolved.

C. ejudic

Finally, this Court is not being asked to find that

prejudice did actually exist. That is not the question

before this Court. Petitioner raises the issue anyway.

Juror Cates did not answer when the panel was asked if

everyone could be fair and impartial considering the "nature

16

of this case" (Petitioner's Appendix A69) (emphasis added).

This was a case involving sexual abuse and rape of

stepdaughters. Clearly the court and attorneys were asking

a specific question as to whether a case involving the

sexual abuse of children would cause the panel not to be

fair and impartial. But that was not Cates' problem. It

was because of the prior burglaries and the exposure to his

daughter that he could not be impartial. Cates did all that

he could do to show the Court he could not be fair by

announcing his feelings at the appropriate time.

Instructing a juror to be fair and impartial will not cure

his or her prejudice. If that were true then there would be

no reason for voir dire at all.

Secondly, Petitioner suggests that the evidence was

strong enough to have convicted Mr. Presley without Juror

Cates. Petitioner notes that Mr. Presley did not challenge

the weight of the evidence against him in his post-

conviction hearing. Petitioner fails to note that

Missouri's post-conviction relief procedure, under Rule

27.26 (Appendix at A2), does not allow for challenging the

trial evidence and, in fact, is very narrow in scope.

The primary evidence by the state at trial was given by

the two stepdaughters. There was no medical evidence

confirming rape. There was no confession by Mr. Presley.

Mr. Presley testified at trial and asserted his innocence.

The defense called fourteen witnesses other than Mr.

Presley. Juries have, under similar evidence in similar

17

cases, acquitted the accused. They could have done so in

this case. Because they did not acquit does not mean that

any jury anywhere would have found him guilty. It's wrong

to say that just because the weight of the evidence is

against the accused he is not entitled to a fair and

impartial jury. Further, the weight of the evidence could

not be as strong as Petitioner alleges because both Ince

girls have recanted their story. And even further, the jury

assessed minimal sentences for each of the charges. Mr.

Presley could have gotten life on each rape charge instead

of 12 years, 5 years for sexual abuse in the first degree

instead of 3 years, and 7 years for abuse of a child instead

of 5 years.

The “right to counsel is the right to effective

assistance of counsel." McMann v. Richardson, 397 U.S. 759,

771 n.14, 90 S.Ct. 1441, 1449 n.14, 25 L.Ed.2d 763 (1970).

The right to a fair and impartial jury is inviolate under

the Sixth Amendment to the United States Constitution and

Article 1, Section 18(a) of the Missouri Constitution. The

findings of fact and conclusions of law of the trial court

are guaranteed the presumption of correctness. State v.

Harvey, 692 S.W.2d 290, 293 (Mo. banc 1985). The trial

court and the appellate court both correctly decided this

case under federal and state law and federal and state

decisions.

18

CONCLUSION

In view of the foregoing, Mr. Presley, Respondent,

respectfully requests that Petitioner's petition for writ of

certiorari be denied.

Respectfully submitted,

argargt Elise Branyan

Assistant Public Defender

333 Park Central E., Suite 323

Springfield, MO 65806

(417) 831-7722

Attorney for Respondent

Anne Hall

Public Defender

333 Park Central E., Suite 323

Springfield, MO 65806

(417) 831-7722

Attorney for Respondent

19

Al

APPENDIX

Rule 17. Considerations governing review on certiorari

-l. A review on writ of certiorari is not a matter of

right, but of judicial discretion, and will be granted only when

there are special and important reasons therefor. The following,

while neither controlling nor fully measuring the Court's

discretion, indicate the character of reasons that will be

considered.

(a) When a federal court of appeals has rendered a

decision in conflict with the decision of another federal

court of appeals on the same matter; or has decided a federal

question in a way in conflict with a state court of last

resort; or has so far departed from the accepted and usual

course of judicial procecdings, or so far sanctioned such a

departure by a lower court, as to call for an exercise of

this Court's power of supervision.

(b) when a state court of last resort has decided a

federal question in a way in conflict with the decision of

another state court of last resort or of a federal court of

appeals.

(c) When a state court or a federal court of appeals has

decided an important question of federal law which has not

been, but should be, settled by this Court, or has decided a

federal question in a way in conflict with applicable

decisions of this Court.

-2. The same general considerations outlined above will

control in respect of petitions for writs of certiorari to review

judgments of the United States Court of Appeals for the Federal

Circuit, the United States Court of Military Appeals, and of any

other court whose judgments are reviewable by law on writ of

certiorari.

20

A 2

‘ MISSOURI SUPREME COURT RULE 27.26

A prisoner in custody under sentence and claiming a right to

be released on the ground that such sentence was imposed in

violation of the Constitution and laws of this state or the

United States, or that the court imposing such sentence was

without jurisdiction to do so, or that such sentence was in

excess of the maximum sentence authorized by law or is otherwise

subject to collateral attack, may file a motion at any time in

the court which imposed such sentence to vacate, set aside, or

correct the same. The following procedure shall be applicable to

motions filed pursuant to this Rule:

(a) Nature of Remedy. This Rule is intended to provide the

exclusive procedure which shall be followed when a prisoner in

custody seeks relief on the basis of any of the attacks on a

sentence enumerated above. The motion seeking such relief shall

be filed in the court where the sentence was imposed. This Rule

does not suspend the rights available by habeas corpus but rather

prescribes the procedure to be followed in seeking the

enforcement of those rights. It includes all relief heretofore

available in any court by habeas corpus when used for the purpose

of seeking to vacate, set aside or correct a sentence, plus

relief not available by habeas corpus. A motion filed hereunder

is an independent civil action which should be separately

docketed. The action which should be separately docketed. The

procedure before the trial court and on appeal is governed by the

Rules of Civil Procedure insofar as applicable. No cost deposit

shall be required.

(b) When Remedy May be Invoked.

(1) The provisions of this Rule may be invoked only by

one in custody claiming the right to have a sentence vacated, set

aside or corrected.

(2) A motion to vacate, set aside, or correct a sentence

cannot be maintained while an appeal from the conviction and

sentence is pending or during the time within which an appeal may

be perfected.

(3) A proceeding under this Rule ordinarily cannot be

used as a substitute for direct appeal involving mere trial

errors or as a substitute for a second appeal. Mere trial errors

are to be corrected by direct appeal, but trial errors affecting

constitutional rights may be raised even though the error could

have been raised on appeal.

(c) For and Sufficiency of Motion. A motion to vacate a

sentence must be submitted on a form substantially in compliance

with the form appended hereto. The motion shall include every

ground known to the prisoner for vacating, setting aside, or

correcting his conviction and sentence. The prisoner shall

21

ee ee a ee ean pia

A 3

verify the correctness of the motion, including the fact that he

has recited all claims known to him.

(d) Successive Motions. The sentencing court shall not

entertain a second or successive motion for relief on behalf of

the prisoner where the ground presented in the subsequent

application was raised and determined adversely to the applicant

on the prior application or where the ground presented is new but

could have been raised in the prior motion pursuant to the

provisions of subsection (c) of this Rule. The burden shall be

on the prisoner to establish that any new ground raised in a

second motion could not have been raised by him in the prior

motion.

(e) Hearing. As soon as a motion hereunder is received by

the circuit clerk, he shall notify the prosecuting attorney and

transmit a copy thereof to him. If appointment of counsel is

required under (h) of this Rule, such counsel shall be appointed

immediately and a copy of the motion transmitted to him. Unless

the motion and the files and records of the case conclusively

show that the prisoner is entitled to no relief, a prompt hearing

thereon shall be held. “Prompt” means as soon as reasonably

possible considering other urgent business of the court. This

hearing shall be an evidentiary hearing if issues of fact are

raised in the motion, and if the allegations thereof directly

contradict the verity of records of the court, that issue shall

be determined in the evidentiary hearing. All proceedings on the

motion shall be recorded by the official court reporter.

(f£) Burden of Proof. The prisoner has the burden of

establishing his grounds for relief by a preponderance of the

evidence.

(g) Presence of Prisoner. The prisoner shall be produced at

any evidentiary hearing on a motion attacking a sentence where

there are substantial issues of fact.

(h) Right to Counsel. When an indigent prisoner files a pro

se motion, the court shall immediately appoint counsel to

represent the prisoner. Counsel shall be given a reasonable time

to contes with the prisoner and to amend the motions filed

hereunder if desired. Counsel shall have the duty to ascertain

from the prisoner the facts supporting the grounds asserted in

the motion and if those facts are not sufficiently stated in the

motion, counsel shall file an amended motion. Counsel also shall

ascertain from the prisoner whether he has included all grounds

known to him as a basis for attacking the judgment and sentence

and, if not, shall file an amended motion which also sufficiently

alleges any additional grounds and the facts in support thereof.

If, for good cause shown, appointed counsel is permitted to

withdraw, the trial court shall appoint new counsel to represent

the indigent defendant.

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A 4

(i) Judgment. The court shall make findings of fact and

conclusions of law on all issues presented, whether or not a

hearing is held. If the court finds that the judgement was

rendered without jurisdiction, or that the sentence imposed was

illegal or otherwise subject to collateral attack, or that there

was such a denial or infringement of the constitutional rights of

the prisoner as to render the judgment subject to collateral

attack, the court shall vacate and set aside the judgment and

shall discharge the prisoner or resentence him or grant a new

trial or correct the sentences as may appear appropriate.

(j) Appeal. An order sustaining or overruling a motion

filed under the provisions of this Rule shall be deemed a final

judgment for purposes of appeal by the prisoner or by the state.

An appeal may be taken from the order entered on the motion as in

a civil cése as authorized by Section 512.020, RSMo. Appellate

review shall be limited to a determination of whether the

findings, conclusions, and judgment of the trial court are

clearly erroneous.

(k) Costs. If the trial court finds that a prisoner

desiring to appeal is an indigent person, it shall authorize an

appeal in forma pauperis and furnish without cost the transcript

of such proceeding for appellate review. The trial court, when

the appeal is taken, shall order the official court reporter to

prepare the transcript promptly. If the trial court finds

adversely to a prisoner on the issue of indigency, it shall

certify and transmit to the appellate court a transcript of the

evidence on that issue only so as to permit review of that issue

by the appellate court.

(1) Counsel on Appeal. If a prisoner desires to appeal and

contends he is without means to employ counsel to perfect the

appeal, the trial court, if satisfied that the prisoner is an

indigent person, shall appoint competent counsel to conduct such

appeal. Such counsel, may, in the discretion of the court, be

the same counsel who represented the prisoner in the trial court

on said motion. If, for good cause shown, appointed counsel is

permitted to withdraw, the trial court shall appoint new counsel

in his stead.

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