Rodgers v. State

ANDREW JACKSON HIGGINS, Special Judge,

concurring in result.

The stated question is whether the pro se motion states sufficient grounds “at least to warrant appointment of counsel to consult with movant and file an amended petition, stating in lawyerlike fashion what occurred and the consequences from defendant’s standpoint, for the further consideration of the trial court before any decision is reached concluding that no evidentiary hearing is required.”

I concur in the decision that “[t]he pro se 27.26 petition in this case states sufficient facts to warrant appointment of counsel,” and in the remand for that purpose and for other proceedings which properly may follow. State v. Herron, 376 S.W.2d 192, 196 (Mo.1964); State v. Gee, 408 S.W.2d 1, 4 (Mo.1966); State v. Keeble, 427 S.W.2d 404, 406 (Mo.1968).

I do not join with the remainder of the opinion in the discussion, unnecessary to resolution of the stated question, of the performance of trial counsel. The issue of effective assistance of counsel, when present, is for the trial court in the first instance. Rule 27.26(e), (j), V.A.M.R.

Accordingly, I concur in result only.