Betts v. State, WD

• Decision Date: 24 May 1994
• Docket Number: No. WD,WD
• Citation: 876 S.W.2d 802
• Parties: Walter BETTS, Appellant, v. STATE of Missouri, Respondent. 48137.
• Court: Missouri Court of Appeals

Page 802

876 S.W.2d 802

Walter BETTS, Appellant, v. STATE of Missouri, Respondent.

No. WD 48137.

Missouri Court of Appeals,

Western District.

May 24, 1994.

As Modified May 24, 1994.

Robert E. Steele, Jr., Asst. Public Defender, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Mary Moulton Bryan, Asst. Atty. Gen., Jefferson City, for respondent.

Before SMART, P.J., and KENNEDY and ULRICH, JJ.

SMART, Judge.

Walter Betts appeals from the trial court's judgment denying a motion to vacate, set aside or correct the judgment and sentence entered against him for convictions of rape, in violation of § 566.030, RSMo1986, and sodomy, in violation of § 566.060, RSMo1986. Betts was sentenced to consecutive terms of fifteen years imprisonment on each conviction.

Judgment affirmed.

On October 5, 1992, Walter Betts pleaded guilty to one count of rape and one count of sodomy. The State agreed to dismiss two additional counts of sodomy charged against defendant in exchange for his guilty plea. At defendant's guilty plea hearing, defendant admitted that he had sodomized and raped his eight year old daughter. Defendant filed postconviction relief motions pursuant to Rule 24.035. In his motions, defendant claimed (1) that counsel failed to present a witness; (2) that he was induced to plead guilty by a detective, and (3) that his plea was involuntary because he was suffering from the side effects of several medications. The motion court denied defendant's motions after an evidentiary hearing. Defendant appeals from the motion court's ruling.

Failure to Call Witness

First, defendant urges that the motion court's findings of fact and conclusions of law are clearly erroneous because he was denied effective assistance of counsel, in violation of the sixth and fourteenth amendments to the United States Constitution and Article I, §§ 10 and 18(a) of the Missouri Constitution. Defendant claims that counsel committed prejudicial error when he failed to call Dr. DeVonne French as a witness at the sentencing hearing. Counsel's failure to call Dr. French resulted in the court sentencing defendant without a complete and fair understanding of defendant's social, medical, and psychological history, all of which , defendant argues, are mitigating factors warranting a reduced sentence. Defendant contends that he would not have entered his plea of guilty if he had known that counsel was not going to call Dr. French at his sentencing hearing.

Appellate review of the denial of a Rule 24.035 motion is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. The motion court's findings and conclusions are clearly erroneous only if, after reviewing the record, this court is left with the definite and firm belief that a mistake has been made. Short v. State, 771 S.W.2d 859, 863 (Mo.App.1989). Since defendant pleaded guilty to the rape and sodomy charges lodged against him, an inquiry into whether counsel rendered effective assistance is relevant only to the extent that it impinges upon the voluntariness and knowledge with which the guilty pleas were made. Hagan v. State, 836 S.W.2d 459, 463 (Mo. banc 1992). In order to prevail on a claim of ineffective assistance of counsel, the movant must prove that counsel's representation of appellant fell below that of a reasonable, competent attorney under similar circumstances, and that the movant was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984). To demonstrate "prejudice," the movant must show there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty, but would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). The movant must prove both the performance and the prejudice prongs in order to prevail. Id.

In response to defendant's allegation of error, the motion court stated the following:

Movant contends that counsel was ineffective in failing to introduce "mitigating evidence" at the sentencing hearing by way of live testimony from Dr. French, one of movant's examining psychiatrists. Dr. French's report was before the Court, and that extensive report included her opinion that movant did not understand or know the nature or wrongfulness of his acts. The Court also had before it the report of Dr. Wisner, whose opinion on that issue conflicted with that of Dr. French. At the post conviction hearing, Dr. French testified that she did not attend movant's sentencing hearing because of a scheduling conflict. She stated that although her report submitted to the trial court was accurate and thorough, she believed that her presence at the sentencing hearing could possibly have added some "human warmth" to the information contained in the report. However, Dr. French's presence at the sentencing hearing is irrelevant to this post-conviction proceeding. After a guilty plea, counsel's effectiveness is only relevant in a motion for post-conviction relief to the extent that it affects the voluntariness of movant's plea. Movant has failed to show in what way the physical presence of Dr. French at his sentencing hearing would have affected the voluntariness of his plea. This allegation should be, and it is hereby dismissed.

Plea counsel, Steve Sakoulas, testified that he had asked Dr. French to testify at defendant's sentencing hearing. Dr. French told Sakoulas that she would try to attend. Dr. French was unable to testify at the sentencing hearing due to a scheduling conflict. Sakoulas testified that after the scheduling conflict arose, he was afraid to subpoena Dr. French for fear that her testimony would not be as favorable if she were forced to appear. At the hearing, Dr. French testified that if she would have been called to testify, she could have given more detailed information than was contained in her report. She also stated, however, that she "could have appeared to be a bleeding heart, and, therefore, not a credible witness." She concluded that she could not predict whether her testimony would have been helpful to defendant.

It cannot be said that plea counsel's actions were unreasonable. Counsel provided a cogent reason for deciding not to subpoena the doctor to testify. The sentencing court had Dr. French's report in front of it at the time of sentencing. Although Dr. French felt that she might be able to add some extra detail to her report, she also admitted she might not appear credible before the court. One advantage of the report over a live witness is that effective cross-examination can destroy the credibility of a witness whose report might otherwise have an air of plausibility. It remains speculative whether defendant would have been better off with the actual appearance of Dr. French. In any event, the motion court's analysis was correct in that defendant failed to establish how Dr. French's physical absence from the sentencing hearing affected the voluntariness of his plea. Defendant alleges for the first time before this court that he would not have pleaded guilty if he had known that Dr. French was not going to testify at the hearing. The allegation is a bare assertion, unaccompanied by any probative or logically supportive facts. We are unaware of any compelling reason to believe that the absence of Dr. French at sentencing would be so significant as to affect the decision to plead guilty. Accordingly, the findings and conclusions of the motion court are not clearly erroneous. Point I is denied.

Confession Coerced by Detective

Next, defendant asserts that the motion court's findings of fact and conclusions of law are clearly erroneous because defendant's plea of guilty was involuntary and entered in violation of due process of law as guaranteed by the fifth and fourteenth amendments to the United States Constitution and Article I, § 10 of the Missouri Constitution. Defendant claims that the plea was the direct result of a coerced confession and continual coercive efforts exerted by Detective Rast. The coercion, defendant suggests, had a binding effect and tainted the guilty plea proceedings in that, as a result of his history and psychological condition, defendant was uniquely susceptible to coercion by authoritative male figures and the detective exploited this condition by maintaining coercive contacts with defendant prior to the proceeding and by actually attending the proceeding.

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