Bates v. State

• Decision Date: 25 February 2014
• Docket Number: No. ED 100153.,ED 100153.
• Citation: 421 S.W.3d 547
• Court: Missouri Court of Appeals
• Parties: Romell BATES, Appellant, v. STATE of Missouri, Respondent.

421 S.W.3d 547

Romell BATES, Appellant,
v.
STATE of Missouri, Respondent.

No. ED 100153.

Missouri Court of Appeals,
Eastern District,
Division Two.

Feb. 25, 2014.

[421 S.W.3d 549]

Lisa M. Stroup, St. Louis, MO, for appellant.

Chris Koster, Attorney General, Jefferson City, MO, for respondent.

ROBERT G. DOWD, JR., Judge.

Romell Bates appeals the judgment of the motion court denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. Bates argues that his guilty pleas had no factual basis, violated his right to be free from double jeopardy and were involuntary due to ineffective assistance of counsel. We affirm.

Bates was charged with robbery in the first degree, assault in the first degree, unlawful use of a weapon, three counts of armed criminal action and two stealing counts. Bates pled guilty to all counts and was sentenced to a total of eighteen years of imprisonment. After sentencing, Bates filed an amended Rule 24.035 motion for postconviction relief, asserting that (1) the facts he admitted at his guilty plea hearing did not constitute both first-degree assault and unlawful use of a weapon and, therefore,

[421 S.W.3d 550]

accepting his pleas on those counts without a factual basis violated his right to due process and being sentenced on both counts for the same conduct violated his right to be free from double jeopardy; (2) plea counsel was ineffective because she advised him his sentence would be twelve years and he received eighteen years instead; and (3) plea counsel was ineffective because she failed to call witnesses and introduce other evidence related to Bates's Attention–Deficit/Hyperactivity Disorder (“ADHD”), social history and learning difficulties.

The motion court denied Bates's request for an evidentiary hearing and entered findings of fact and conclusions of law. It found that (1) first-degree assault and unlawful use of a weapon are crimes with distinct elements and, therefore, a defendant may be convicted of both for the same conduct and, moreover, Bates acknowledged that the facts recited by the State at the plea hearing were substantially correct; (2) the record refuted Bates's claim regarding plea counsel's sentencing advice because Bates acknowledged that the plea court was not bound by any sentencing recommendation, was aware that the court could impose more or less time than was recommended and also admitted that no one promised him what sentence he would receive; and (3) Bates's claim regarding plea counsel's failure to call witnesses at sentencing was also refuted by the record. This appeal follows.

Our review of the motion court's findings of fact and conclusions of law in denying a Rule 24.035 motion for post-conviction relief is limited to a determination of whether the findings and conclusions are clearly erroneous. Rule 24.035(k); Worthington v. State, 166 S.W.3d 566, 572 (Mo. banc 2005). A motion court's findings and conclusions are clearly erroneous only if, after a full review of the record, we are left with a definite and firm impression that a mistake has been made. Worthington, 166 S.W.3d at 572. To obtain an evidentiary hearing on a post-conviction motion the movant must raise facts, not conclusions, warranting relief, the allegations must not be refuted by the record and the claims must have resulted in prejudice to the movant. Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009).

In Point I, Bates argues that the first-degree assault and unlawful use of a weapon charges were based on the same conduct. Bates claims his rights to due process and to be free from double jeopardy were violated because there was an insufficient factual basis for his guilty pleas to those charges. We disagree.

The indictment charged Bates and his co-defendants (collectively “the Defendants”) with assault in the first degree under Section 565.050. The indictment alleged—and Bates agreed at the plea hearing that the State would have proven at trial—that the Defendants shot at the victim, which was a substantial step toward the crime of attempting to kill or cause serious injury to the victim and which was done for the purpose of committing assault. The indictment also charged them with unlawful use of a weapon under Section 571.030.1(3). It alleged—and again Bates agreed the State would have proven—that the Defendants shot a firearm into a dwelling house. In his post-conviction motion and here on appeal, Bates argues that only one shot was fired at the hotel window in which the victim was standing. He contends that one shot cannot constitute both the crime of assault and the crime of unlawful use of a weapon without violating double jeopardy protections. But the police report Bates cites in support of the fact that there was only one shot does not appear to have been part of

[421 S.W.3d 551]

the record before the motion court and is not part of the record on appeal.

Even assuming that Bates's convictions were based on a single shot fired into the dwelling house and at the victim, there was no double jeopardy violation. “The United States Supreme Court has determined that the federal double jeopardy clause protects defendants not only from successive prosecutions for the same offense after either an acquittal or a conviction, but also from multiple punishments for the same offense. Typically, to determine whether multiple charges constitute the same offense, courts consider whether each offense necessitates proof of a fact which the other does not.” State v. Liberty, 370 S.W.3d 537, 546 (Mo. banc 2012) (citing Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) (other internal citations and quotation marks omitted)); see also State v. Burns, 877 S.W.2d 111, 112 (Mo. banc 1994) (Blockburger's “same-element” test appears to have been codified in Sections 556.041 and 556.046.1(1)).

Each of the offenses in this case has an element different from the other, and they are separate offenses. “A person commits the crime of unlawful use of weapons if he or she knowingly ... [d]ischarges or shoots a firearm into a dwelling house.” Section 571.030.1(3). “A person commits the crime of assault in the first degree if he attempts to kill or knowingly causes or attempts to cause serious physical injury to another person.” Section 565.050.1. Thus, one statute requires proof that the shot was fired at a dwelling house and the other requires proof that the shot was fired in attempt to injure another person. These statutes criminalize two different kinds of conduct—shooting at a dwelling and trying to kill or injure another person. Thus, even when a single shot is fired at a person standing in a dwelling house, two crimes have been committed. In Yates v. State, we concluded that a single shot fired from a car and into a house could support conviction under two subsections of the unlawful use of a weapon statute. 158 S.W.3d 798, 802 (Mo.App. E.D.2005). Because one subsection required proof that the firearm was shot into a dwelling house and the other subsection required proof that the firearm was shot from a motor vehicle, they were different...