Criminal Law

Rosalynn Koch, Esquire

Defendant committed stealing by deceit by his scheme of writing checks on his account, reporting them stolen, and stopping payment. State v. Holbruck, No. 75037 (Mo. App. W.D., August 6, 2013), Howard, J.

Defendant wrote checks on his account and then reported to police that someone had stolen his checks and forged his name on them. Defendant was convicted of stealing by deceit.

Held: Affirmed.
Failure to make good on a check is not stealing by deceit, but the evidence suggested that defendant had planned to evade payment when he wrote the checks as he had insufficient funds in his account and he invented a story about his checks being stolen and forged.

Movant’s incompetence at time of post-conviction action is not grounds to reopen the proceedings. Sittner v. State, No. 99165, (Mo. App. E.D., August 13, 2013), Norton, J.

Movant filed a motion seeking to reopen his postconviction proceedings, claiming that he had been mentally incompetent to assist in the prior proceedings. The motion was denied.

Held: Affirmed.
Mental impairment is not a recognized ground for permitting the motion court to retain jurisdiction over the proceedings.

Counsel was ineffective in failing to object when the sentencing court based defendant’s sentence upon both his prior record and a concern that other criminal defendants would hear about a shorter sentence and elect to go to trial. Greer v. State, No. 98913 (Mo. App. W.D., August 20, 2013), Richter, J.

Movant filed a Rule 29.15 action complaining that trial counsel failed to object when the trial court followed the state’s sentencing recommendation based upon both the defendant’s criminal record and the possibility that a shorter sentence would induce other defendants to opt for a trial instead of pleading guilty.

Held: Reversed and remanded.
The purpose of sentencing is to deter crime, not exercising the right to trial. If the defendant’s exercise of his right was an actual factor considered by the sentencing court in imposing sentence, then counsel should have objected.