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08/16/83 VIRGIL FRANKLIN RYDER v. STATE MISSOURI

August 16, 1983

VIRGIL FRANKLIN RYDER, APPELLANT,
v.
STATE OF MISSOURI, RESPONDENT.



From the Circuit Court of Warren County Criminal Appeal from Motion Under Rule 27.26 (Post Conviction Relief) Judge Edward D. Hodge.

Before Crandall, P.j., Reinhard, Crist, JJ.

The opinion of the court was delivered by: Crist

Rule 27.26 motion denied after an evidentiary hearing. We affirm.

Movant was found guilty of murder in the second degree and was sentenced to 65 years imprisonment as a persistent offender. His conviction was affirmed in State v. Ryder, 598 S.W.2d 526 (Mo. App. 1980). Movant charges he received ineffective assistance of counsel because his lawyer failed (1) to secure the testimony of a key defense witness, and (2) to investigate his pre-sentence investigation report.

Movant's lawyer testified he subpoenaed the alleged key witness at the original trial. When the witness failed to appear, his lawyer discussed the situation with movant. The final decision to proceed without the witness was made by movant. Movant did not call this witness to testify at the Rule 27.26 hearing.

Movant's contention must fail because movant did not show how the testimony of the alleged key witness would have helped him, nor what the testimony would have been. Robinson v. State, 643 S.W.2d 8, 9-10 (Mo. App. 1982); Mayes v. State, 589 S.W.2d 637, 638 (Mo. App. 1979).

Movant also contends the pre-sentence investigation report was false, and he was prejudiced because the trial court relied on the report in imposing the 65 year sentence. Movant testified as to error in the report. The officer who prepared the report testified that insofar as he could determine, the report was accurate. Further, a federal court ruled against movant in a suit he brought alleging the inaccuracy of the same report. The Rule 27.26 Judge was not bound to accept movant's testimony regarding the pre-sentencing report as true, and did not do so. Johnson v. State, 615 S.W.2d 502, 505 (Mo. App. 1981); Floyd v. State, 518 S.W.2d 700, 702-3 (Mo. App. 1975).

Judgment affirmed.

All concur.

19830816

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