Gregory Sams, Appellant, v. State of Missouri, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Western District Case Style: Gregory Sams, Appellant, v. State of Missouri, Respondent. Case Number: 54355 Handdown Date: 05/26/1998 Appeal From: Circuit Court of Randolph County, Hon. Ralph H. Jaynes Counsel for Appellant: Amy Bartholow Counsel for Respondent: John M. Morris Opinion Summary: Gregory Sams filed a post-conviction motion under Rule 24.035 claiming ineffective assistance of counsel during a guilty plea. Sams had filed a request for trial within 180 days under the Uniform Mandatory Disposition of Detainers Act and then pled guilty after the 180 days had run. Sams' amended Rule 24.035 motion alleges ineffective assistance of counsel based upon two points: (1) two days before the speedy trial statute would have taken effect, defense counsel stipulated to a trial setting that was to take place after the 180 day period had expired, and (2) that after the 180 days expired, defense counsel failed to move to dismiss in the trial court because the stipulation was ineffective to waive the effect of Section 217.460. REVERSED; PLEAS SET ASIDE. Court holds: (1) Defense counsel was deficient in agreeing to an initial trial setting that was beyond the speedy trial period. (2) Trial counsel's stipulation as to a later trial date was an effective waiver of the speedy trial statute. Citation: Opinion Author: Harold L. Lowenstein Opinion Vote: REVERSED. Breckenridge, P.J., and Spinden, J., concur. Opinion:

This is an action claiming ineffective assistance of counsel during a guilty plea, where the movant, Sams, had filed a request for trial within 180 days under the Uniform Mandatory Disposition of Detainers Act, Section 217.450-.460, RSMo 1994(FN1), and then pled guilty after the 180 days had run. The operative times and events in the appeal of the denial of Sams' Rule 24.035 motion are now shown: July 18, 1995 - Complaint filed against Sams for two counts of securities fraud. Section 409.101, RSMo 1994. July 28,1995 - Court receives Sams' motion for speedy trial, filed July 24, 1995, while Sams was in the Department of Corrections serving time on another conviction. October 11, 1995 - Preliminary hearing. October 18, 1995 - Information filed. November 14, 1995 - Arraignment. November 22, 1995 - State filed motion for change of judge. January 11, 1996 - New judge assigned. January 22, 1996 - Both sides appear in court to set a trial date. Court docket sheet shows that the state requested a February trial date, but defense counsel had conflicts in February and March. Docket sheet stated, "Discovery is to be complete by 3-1-96. Pursuant to Sec. 217.460, RSMo P.A. & Defendant atty. stipulate as to a trial date . . . 4-1-96. . . ." Later that same day, the prosecutor realized there was a request by the defendant for a speedy trial. Believing the 180 days would run on January 28th, 1996, (based on the July 28, 1995, request by Sams for a speedy trial), the prosecutor then sent a fax that evening to defense counsel and the court stating that he had noticed the defendant had moved for a 180 day disposition of the case pursuant to ' 217.460, and requested a hearing to discuss ". . . why the case was not disposed of within the time required . . . to protect this case from being dismissed by operation of law."(FN2) No hearing was held. March 25, 1996- Sams waives a jury trial and announces intention to plead guilty. April 1, 1996- Court hears Sams' guilty plea. July 17, 1996- Sams sentenced to ten years on each count and concurrent to each other but consecutive to a sentence for which Sams had been serving time since 1994. Sams' amended Rule 24.035 motion alleges ineffective assistance of counsel based upon two points: (1) two days before the speedy trial statute would have taken effect, defense counsel stipulated to a later trial setting, and (2) that after the 180 days expired, defense counsel failed to move to dismiss in the trial court because the stipulation was ineffective to waive the effect of Section 217.460. This appeal to set aside the guilty plea is not based on federal or state constitutional grounds, but is based solely on failure of trial counsel to take advantage of the statutory right for a speedy trial afforded by the Missouri statute. Section 217.450, in pertinent part, reads: "Any person confined in a department correctional facility may request a final disposition of any untried indictment, information or complaint pending in this state on the basis of which a detainer

has been lodged against him while so imprisoned." Section 217.460 reads: Within one hundred eighty days after the receipt of the request and certificate, pursuant to sections 217.450 and 217.455, by the court and the prosecuting attorney or within such additional necessary or reasonable time as the court may grant, for good cause shown in open court, the offender or his counsel being present, the indictment, information or complaint shall be brought to trial. The parties may stipulate for a continuance or a continuance may be granted if notice is given to the attorney of record with an opportunity for him to be heard. If the indictment, information or complaint is not brought to trial within the period, no court of this state shall have jurisdiction of such indictment, information or complaint, nor shall the untried indictment, information or complaint be of any further force or effect; and the court shall issue an order dismissing the same with prejudice. At the Rule 24.035 hearing the following questions were put to trial counsel. Q.Were you aware that Mr. Sams had filed a request for speedy trial under . . . the Uniform Mandatory Disposition of Detainers Act? A.I am now. Q.Were you aware at the time of the--your representation of him that this had been filed? A.I have no independent recollection of--of--of that fact. There--Vaguely, I remember talking to Mr. Sams about this, but--But whether or not I knew specifically that it had been filed, I don't know the answer to that. * * * * * * Q.Mr. Madden, during the setting date, the January 22nd date, you were aware at that time that a trial setting would have to be made either within the 180-day . . . setting? A.I--I--I do not believe I knew about the 180 days. Or if I did know about it--If--If I had known about it in the past, I had forgotten it. Q.Okay. A.Because, at the time, if you will--if you recall, I did ask for--for a later trial setting. And I would not have done that if--in an effort to deliberately trump my own--my own request. * * * * * * Q.. . . when you met with your client and you discussed a plea disposition in this case, did the issue come up with him? A.Not that I recall. Q.At any point during those discussions, did he(Sams) raise the issue of the 180 days? A.He-He very well may have, but I don't recall it. The 180-day was not central in my -- in my thinking at all in this case. Trial counsel testified he was not ready to try the case in January, and possibly could have been ready for trial by the end of February. He stated the case was complicated and he had been given "an enormous amount of paperwork" by the Attorney General's office. In a nutshell, Sams was an insurance agent whose license had been suspended in Kansas. Sams convinced some of his insurance clients, an elderly couple in Moberly, to purchase government securities which he

said paid a high rate of interest, and got them to pay $20,000 and then another $10,000 for securities which never existed. He used this money, which was practically all their life savings, to buy a new car and take a trip to Las Vegas. The motion court concluded defense counsel was not deficient in agreeing to a trial setting after the 180 days had run nor in failing to later seek a dismissal based on the statute. Review is limited to a determination of whether the motion court's findings and conclusions are clearly erroneous. Rule 24.035(k). The motion court's findings and conclusions will be deemed erroneous only where this court is left with a definite and firm impression that a mistake has been made. Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991). This case boils down to the question of whether trial counsel was deficient for agreeing to a trial setting two days before the speedy trial statute was to run, when the trial was set for a date well after the statute would have mandated that the charges be dismissed. The assertions raised by Sams to set aside his pleas will be taken somewhat out of order since point (2) indirectly raises a jurisdictional issue. In essence, Sams second argument states that trial counsel's waiver of the statute for speedy trial was ineffective, thus leaving his request for speedy trial under the statute in effect. If ' 217.460 was still in effect, then, under the plain language of the statute, the trial court was without jurisdiction to take a guilty plea in April. Despite the somewhat hazy and conflicting facts as to how this case slid past the 180 days, it is uncontested that during the court appearance on January 22 both the prosecutor and defense counsel were totally unaware of Sams' statutory request. It is also clear that, prior to the 180th day allowed, defense counsel agreed to a trial setting beyond the statutory limit. Apparently, neither the state nor the defense was ready to go to trial within the few days remaining under ' 217.460. After setting the April trial date at the hearing, the prosecutor discovered Sam's speedy trial request and realized he only had a few days in which to set the case for trial. The prosecutor then sent a fax sometime between five and six o'clock that evening to defense counsel's office. Whether defense counsel was fully cognizant of his client's statutory request for a speedy trial is unclear. The right to be brought to trial within 180 days of a proper request is jurisdictional. Woody v. State, 904 S.W.2d 467, 469 (Mo. App. 1995). Thus, a guilty plea by defendant after the running of the statute does not waive a claim for lack of jurisdiction. O'Neal v. State, 925 S.W.2d 480, 483 (Mo. App. 1996). However, a defendant cannot rely on the statutory right to speedy trial if the defendant has waived that right by asking for appointment of new counsel, and specifically waiving the previously filed request for speedy trial in his motion for new counsel. Id. at 483. Similarly, in Clark v. State, 846 S.W.2d 750, 752 (Mo. App. 1993), the defendant filed a request for a continuance to contact an alibi witness during the 180 days, and in that request, waived any speedy trial claim. Noting that the defendant was not ready

for trial at the time the request was filed, and had not been ready for trial, the court in Clark held that the time during which the defendant was not ready for trial was excluded from the 180 day period under the statute. Id. at 752. An attorney has the power, vis-a-vis a direct appeal attack, to bind the client by agreeing to or asking for a continuance, ". . . whether or not defendant himself was informed of the request or gave his express consent to it." State v. Sallee, 624 S.W.2d 184, 186 (Mo. App. 1981). Such a request ". . . tolls the 180 day period of the agreement on detainers, even if the request is made orally and out of court." Id. In the present case, the actions of trial counsel on January 22, in agreeing to a trial setting past January 24, effectively waived Sams' statutory speedy trial motion. With the statute having already been waived by counsel's agreement to a later trial setting, the plea court had jurisdiction to take the plea. See O'Neal, supra, 925 S.W.2d at 483; Ellsworth v. State, (# 71665 Eastern District, January 27, 1998) slip opinion at page 5. Likewise, Sams' argument, that trial counsel was ineffective in failing to move to dismiss after January 24, fails. In his other point on appeal, Sams argues that defense counsel was deficient, and that he was prejudiced by counsel's agreement to a trial setting after January 24, 1996. This court agrees. Between five and six o'clock on January 22, the prosecutor discovered the speedy trial request. The setting of the case for trial was the state's obligation, not the defendant's, and the state cannot now shift the blame to the defendant and say that the defendant was not ready. Unlike the situation where one of the parties is seeking a continuance from a previous trial setting, under the facts here, no trial had ever been set as of two days before the statute was to run. On the afternoon of January 22, 1996, the state had not set the case for trial, and it may be reasonably inferred the state was not ready for a trial on January 24. There is no reason under these facts, for defense counsel to have done anything other than let the statute run. If counsel had done so the court would have to ". . . issue an order dismissing the same with prejudice." Section 217.460. The prosecution did not set a hearing prior to the running of the 180 days to determine any exceptions to the statute taking effect. See State v. Walker, 795 S.W.2d 628, 629 (Mo. App. 1990). There is no assertion nor any hint in the record that Sams ever took any action that would have tolled the 180 day period. As a result, counsel was deficient in agreeing to the initial trial setting which was beyond the speedy trial period. Sams was prejudiced in that he received convictions instead of a dismissal with prejudice. Regardless of whether counsel did or did not know of the speedy trial request, the result was prejudicial to the client. The state's argument that Sams' guilty plea waived any complaint as to effectiveness of trial counsel is not persuasive. It would be unfair to deny relief because the lay defendant failed to appraise counsel of a duly filed speedy trial request. See State v. Allen, 954 S.W.2d 414, 419 (Mo. App. 1997) (where the client testified at the sentencing hearing that his lawyer had asked for continuances

over the objection of the client and,"against [the client's] motion for a fast and speedy trial.") In Allen, the post-conviction case was returned for an evidentiary hearing on the issue of the defendant's outright notice and opposition to the continuances obtained by his lawyer. In this case, there was no reason for counsel to have done anything. The ball was in the prosecutor's court, time had just about run out, and all the defense had to do was let the statute run. The court rules the plea court had jurisdiction to take the plea, but counsel was ineffective for agreeing to a setting beyond the statutory limit of 180 days. The judgment is reversed, the defendant is allowed to set aside his two guilty pleas. All Concur. Footnotes: FN1.All statutory references are to RSMo. 1994 unless otherwise indicated. FN2.This court has determined the state actually only had until January 24th, 1996, to bring the matter to trial. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.