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Blankenship v. State6/20/2000
Appeal From: Circuit Court of St. Francois County, Hon. Kenneth W. Pratte
Opinion Vote: REVERSED AND REMANDED. Rhodes Russell, C.J., and Crahan, J., concur.
Opinion:
The movant was convicted following a jury trial on one count of involuntary manslaughter, section 565.024 RSMo 1994, and two counts of second degree assault, section 565.060 RSMo 1994. The jury recommended maximum sentences of seven years on each count. Trial counsel filed a timely motion for new trial.
Before the date set for hearing on the motion for new trial and sentencing the movant's trial counsel was indefinitely suspended from practice and he retained another lawyer. The court overruled the motion for new trial and pronounced consecutive sentences aggregating fourteen years. The trial judge noted that there were grounds for claiming that trial counsel had been ineffective. Movant's new counsel then filed notice of appeal and proceeded to brief and argue the appeal. The judgment was affirmed by order and memorandum, State v. Blankenship, 968 S.W.2d 268 (Mo.App. 1998).
The movant then filed a pro se motion under Rule 29.15, asserting that trial counsel was ineffective in several particulars. His counsel on sentencing and appeal filed a timely amended motion and appeared for movant at an evidentiary hearing before a different judge. Several witnesses appeared, including the trial judge. The hearing judge filed findings of fact and conclusions of law overruling the motion. The movant now prosecutes this appeal, represented by new counsel. After reviewing the briefs, the record, and the motion judge's findings and conclusions we are firmly convinced that an error has been made and that there is a reasonable probability that, had the movant's trial counsel performed in accordance with acceptable standards, the result might have been different. We therefore reverse and remand.
The right to counsel as established in the Sixth Amendment and in Article I, Section 18 (a) of the constitution of Missouri, connotes representation by competent counsel. If counsel acts incompetently, and the movant establishes prejudice, the conviction may be set aside in post-conviction proceedings. The right to competent counsel applies to counsel retained by the defendant as well as to public defenders and other counsel appointed by the court. Jones v. State, 748 S.W.2d 878 (Mo.App. 1988); Williams v. State, 605 S.W.2d 222 (Mo.App. 1980).
Although the trial date had been set weeks in advance, counsel thought that he had an agreement with the prosecutor that the case would be continued. He foolishly neglected to confirm this understanding with the judge prior to the trial. Apparently relying on the expected continuance, he did not interview the expert witness he had retained prior to trial, but rather represented to the court that he had arranged an interview with this witness for 10 a.m. of the very day on which the trial was scheduled to begin. The case was set for pretrial hearing at 8:30 a.m. on January 14, 1997, with trial to begin at 9:00 a.m. Counsel did not appear until 9:10 a.m., when he advised the court that he was not prepared for trial and asked for a continuance.
When the court ruled that the trial would proceed, counsel in his opening statement told the jury that he would produce expert witness Tim Finley at the trial to testify on accident reconstruction. He had not recommended that the defendant-movant take the witness stand and had not prepared him as a witness by asking the questions he proposed to ask and testing his response to anticipated questions on cross examination. Counsel did not get in touch with Finley by telephone until after the trial
Page 1 2 3 4 Missouri DUI Attorneys
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