Bello v. State
| Decision Date | 30 June 2015 |
| Docket Number | WD 77477 |
| Citation | 464 S.W.3d 284 |
| Parties | Demario R. Bello, Appellant, v. State of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Gregory A. Doty, for Appellant.
Shaun Mackelprang, Jefferson City, for Respondent.
Before Division Two: Lisa White Hardwick, Presiding Judge, Victor C. Howard, Judge and Cynthia L. Martin, Judge
Demario Bello appeals the denial of his Rule 24.035 motion for post-conviction relief after an evidentiary hearing. Bello pleaded guilty to felony charges of second degree assault of a law enforcement officer, resisting a lawful stop, and possession of a controlled substance, and misdemeanor driving while revoked pursuant to a plea agreement with the prosecutor. The court accepted Bello's guilty pleas and sentenced him within the range of punishment. Bello sought to vacate his convictions and sentences arguing that plea counsel was ineffective for failing to object to the large number of uniformed police officers present in the courtroom at sentencing or to request that the number of uniformed police officers be limited or that off-duty officers be made to wear street clothes. Bello also argues that he was abandoned by post-conviction counsel when claims from his pro se motion were not included in post-conviction counsel's amended motion. Bello's appeal is dismissed in part and the judgment is affirmed.
On July 31, 2011, Officer Bradley Dingman pulled over Bello, who stated that he did not have his driver's license with him. Captain John Jordan arrived on the scene to assist. It appeared that Bello was going to attempt escape, and Captain Jordan tried to restrain him, but Bello broke free, and after a struggle, managed to get back into his car. Bello then started the car and drove away, dragging Captain Jordan alongside the vehicle, crossing over lanes of traffic where there were other vehicles, and finally crashed into a light pole. Bello then fled on foot but was captured. Cocaine powder was found on Bello's shorts, and officers found a baggy of cocaine in his vehicle.
Captain Jordan suffered extensive and severe injuries from Bello dragging him through traffic, requiring him to be treated in the intensive care unit for two days. Captain Jordan's injuries required him to have multiple surgeries, and at the time of Bello's guilty pleas, he faced the prospect of additional surgeries in the future.
On May 3, 2012, Bello pleaded guilty to felony charges of second degree assault of a law enforcement officer, § 565.082.1(2), RSMo Cum. Supp. 2009, resisting a lawful stop, § 575.150, RSMo Cum. Supp. 2013, and possession of a controlled substance, § 195.202, RSMo Cum. Supp. 2010, and misdemeanor driving while revoked, § 302.321, RSMo Cum. Supp. 2005. At the guilty plea hearing, the court questioned Bello to ensure that his guilty pleas were knowing, intelligent, and voluntary, and to ensure that there was a factual basis for the pleas. Bello testified that he understood the range of punishment, which included up to fifteen years for the assault, four years for resisting arrest, seven years for possession of a controlled substance, and a year for driving while revoked. He testified that he knew about the State's earlier plea offer of twelve years and that he had rejected it. Bello stated that he knew that sentencing would be up to the court and that the court would not be bound by any recommendation in the sentencing assessment report (SAR). The court accepted Bello's pleas and found him guilty of each offense charged.
A sentencing hearing took place June 21, 2012. The court stated it had reviewed the State's recommendation and attached letters, the letters submitted by the defense, and the SAR.
The State presented testimony from Captain Jordan's physical therapist, Captain Jordan, Captain Jordan's son, and Captain Jordan's wife. The State recommended consecutive sentences of fourteen years for the assault charge and three years for resisting arrest, as well as six years for possession and one year for driving while suspended, to run concurrently with the other sentences.
Counsel for Bello requested “fairness” and asked the court to acknowledge that he had “taken full responsibility for his actions[.]” Counsel said that Bello told him he would not put Captain Jordan and his family through the burden of testifying at trial. Counsel urged the court to consider community structured sentencing such as work release, so that Bello could continue to work at being “a better example” for his three-year-old son. Counsel argued that Bello had panicked and was not maliciously trying to hurt an officer. Counsel said Bello did not take the plea offer of twelve years because he could not put his son through being away from him that long, so he was requesting the court to consider other options but ultimately “laying himself at the mercy of the court.”
Testimony from Bello's family and girlfriend was sympathetic to Captain Jordan and his family, expressed Bello's good qualities, and requested leniency and fairness. Bello's girlfriend testified also about Bello's incarceration's effect on her and on their son.
Bello addressed the court, apologizing to Captain Jordan, and explaining that he had acted out of fear and had no intention of hurting anyone. He asked for mercy, apologized to Captain Jordan's son, and reiterated his lack of intention to harm. Bello further stated:
I see a lot of officers in the room, this is not me. I don't want you guys to be in fear of me upon returning to society. You know, this is not me. I've learned my lesson. It was an accident out of fear. This is not something that I'll continue to do.
After argument by the State and defense counsel, the court noted that Captain Jordan suffered serious physical injury and that Captain Jordan, his family, friends, and community suffered a serious and permanent loss. The court observed that Bello and his family and friends had and would continue to experience a serious loss, but that his crime was violent and involved serious physical injury to Captain Jordan. The court expressed its recognition that there were supporters in attendance at the sentencing for Captain Jordan and the State and supporters for Bello, and encouraged all in attendance to control their emotions and avoid any “unfortunate [ ] exchanges” following the announcement of Bello's sentence. The court then sentenced Bello to twelve years imprisonment for the assault, three years for resisting a lawful stop, three years for possession of a controlled substance, and ninety days in the county jail for driving while revoked, the two three-year sentences to run concurrent to one another and consecutive to the assault sentence.
Bello filed a pro se Rule 24.035 motion, and counsel filed an amended motion, alleging ineffective assistance of counsel at sentencing for failure to object to the presence of “a large number of uniformed law enforcement officer [s] from multiple jurisdictions sitting together in the courtroom as spectators.” Bello alleged that had counsel objected, the court would have “either limited the number of uniformed officers in the courtroom or required the officers to appear in street clothes if they wished to sit as spectators” and there was a reasonable probability that Bello would have received a lesser sentence.
A hearing was held on the motion, at which the court heard testimony from plea counsel, Bello's father and Bello.
Counsel testified that the SAR indicated a mitigated sentence of probation and an aggravated sentence of five years in prison, that 60.6 percent of those convicted of assault of a law enforcement officer were placed on probation, and that 24.2 percent received a prison sentence with an average sentence of six and a half years. Counsel was asked if she believed the judge would have a hard time facing the approximately fifty uniformed officers who were seated on both sides of the gallery and still consider the full range of punishment for Bello. Counsel replied, “Yes and no. I believe that anybody would have a hard time just with the sheer volume that was out there.” She testified that she did not object to the number of officers or to their wearing uniforms because she thought it might be frivolous to object to them being there as members of the public at a public trial proceeding, and to ask to have them removed “didn't cross [her] mind[.]”
On cross-examination counsel clarified that the average sentences for the felonies in the SAR were calculated in isolation, not accounting for the commission of multiple felonies at once, whereas the range of punishment the court has the discretion to impose pursuant to statute allows the court to consider multiple felonies, as well as “the defendant, what happened, the circumstances surrounding the event, [and] the injuries.” She also testified that she discussed the offer of twelve years from the State with Bello, as well as the possible range of punishment for each of his crimes, and that the court could sentence him anywhere in those ranges.
The motion court denied Bello's motion, finding that the court considered all relevant and appropriate factors in the sentencing proceedings and that it was not influenced in its sentencing by the presence of uniformed officers. The motion court concluded that Bello failed to prove that the court would have limited the number of officers in the room if requested; failed to produce evidence that any individual present at sentencing was disruptive, acted inappropriately, or in any way had inappropriate contact with the court; and failed to prove that the court was improperly influenced by the presence of uniformed officers in the courtroom. The court noted that Bello's evidence of improper influence was that his sentence was more than the average listed in the SAR, but that average did not account for the commission of multiple felonies, and Bello's sentence was within the potential range of punishment.
The court denied...
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