Bibbs v. State
| Decision Date | 10 March 2020 |
| Docket Number | No. ED 107490,ED 107490 |
| Citation | 597 S.W.3d 397 |
| Parties | Daniell W. BIBBS, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
FOR APPELLANT, Mary S. Choi, Missouri Public Defender’s Office, 1010 Market Street, Suite 1100, St. Louis, Missouri 63101.
FOR RESPONDENT, Nathan J. Aquino, Assistant Attorney General, PO Box 899, Jefferson City, Missouri 65102.
Daniell Bibbs ("Movant") appeals the motion court's judgment denying his Rule 24.0351 motion for post-conviction relief without an evidentiary hearing. He contends the motion court clearly erred in denying (1) his claim that his pleas were involuntary and unknowing and (2) his claim of ineffective assistance of counsel. Specifically, in Point I Movant contends that after the charges were read to him he told the court "there was nothing forcible" about his conduct and the three charges he pled guilty to contained identical language. In Point II Movant contends plea counsel was ineffective for failing to investigate evidence the victim had made false or unsubstantiated allegations of a sexual nature against other men. We affirm.
On August 12, 2015 Movant was charged with three counts of sexual abuse in the first degree, one count of felonious restraint, and one count of attempted rape in the first degree. Movant initially pled not guilty. However, on April 27, 2017 Movant pled guilty to three counts of sexual abuse in the first degree and one count attempted rape in the first degree under a plea agreement with the State. The State of Missouri entered a nolle prosequi on the felonious restraint count as part of the plea agreement.2 Before entering his pleas, Movant admitted no one forced him to plead guilty. Movant also admitted plea counsel fully advised him of the charges the State filed against him. Movant admitted plea counsel discussed the case at length with him, answered all his questions, and he was satisfied with plea counsel’s services.
During the plea hearing, the State read the indictment and recited these facts: on or about July 6, 2014 Movant woke K.K. ("victim") in the middle of the night and asked her if she wanted to learn to drive. When she declined, Movant forced the victim to the car and touched her breasts under her shirt. The victim tried to get out of the car, but Movant drove her to another residence, where he tried to force her pants down and made her touch his penis with her hand. Movant rubbed his penis up and down on the victim over her clothes and put his mouth on her vagina over her clothes. The victim told Movant she wanted to go home, but he restrained her by pushing and pulling her and holding her down by the neck.
When asked by the plea court if all those facts were substantially true and correct, Movant answered "not all of them," because "there was nothing forcible about it." However, Movant subsequently confirmed the facts were correct and these events took place between him and the victim. Movant also admitted he was freely and voluntarily pleading guilty because he had actually committed the offenses outlined by the State. Movant admitted no one told him what to say during his plea hearing or forced him to plead guilty. Movant admitted he understood by pleading guilty, he was giving up his right to a trial. Movant then pled guilty to three counts of sexual abuse in the first degree and one count of attempted rape. Movant was sentenced to seven years’ imprisonment for each of the sexual abuse in the first degree charges and ten years’ imprisonment for the attempted rape charge, with all sentences to run concurrently. The plea court found Movant’s pleas were made voluntarily and intelligently and there were sufficient factual bases for Movant’s pleas. The plea court accepted his four guilty pleas.
After receiving his sentence, Movant admitted plea counsel did "everything [Movant] wanted him to do as far as looking into [his] case" and did "the best that he could." However, he told the plea court he was not satisfied with plea counsel’s services because plea counsel did not "look into" whether the victim made similar false or unsubstantiated claims against other men. Plea counsel responded he was not aware of any similar accusations. Based on Movant’s statements and plea counsel’s response, the plea court found there was no probable cause or prima facie basis for ineffective assistance of counsel.
Movant timely filed a pro se Rule 24.035 motion for post-conviction relief on October 30, 2017. On December 6, 2017 the Office of the Public Defender was appointed to represent Movant. On January 31, 2018 post-conviction counsel entered her appearance on behalf of Movant. On February 5, 2018 post-conviction counsel moved for a thirty-day extension to file an amended motion, which the motion court granted. Movant’s amended motion and request for an evidentiary hearing was timely filed on March 6, 2018. In the amended motion, Movant argued the plea court erred in accepting his pleas "without sufficient factual bases" because he told the plea court there was "nothing forcible" about his conduct and the charges against him contained identical language. Movant also argued his plea counsel was ineffective for failing to investigate evidence that the victim made false or substantiated allegations against other men.3 Movant contended plea counsel’s performance prejudiced him and rendered his pleas unknowing, unintelligent, and involuntary.
The motion court denied Movant’s Rule 24.035 motion for post-conviction relief without an evidentiary hearing. The motion court found Movant’s claim there were no factual bases for his pleas because he denied the element of forcible compulsion was refuted by case law and the record. The motion court found factual bases were established not by Movant’s direct admission to each individual element, but by his admissions on the record as a whole. The motion court also found the State recited facts that distinguished three counts of sexual abuse and one count of attempted rape at the plea hearing. The motion court determined those facts were clear, concise, and on the record. The motion court found Movant’s claim that plea counsel was ineffective for failing to investigate whether the victim made similar allegations against other men was refuted by the record and had no merit because Movant stated on record he believed plea counsel did the best he could as his attorney.
This appeal followed.
We review the denial of a Rule 24.035 motion for post-conviction relief to determine whether the motion court's findings of facts and conclusions of law are clearly erroneous. Rule 24.035(k). "A motion court's findings are presumed correct and we will overturn the ruling only if we are left with a definite and firm impression that a mistake has been made." Nichols v. State , 409 S.W.3d 566, 569 (Mo. App. E.D. 2013).
In both points relied on, Movant claims the motion court clearly erred in denying his 24.035 post-conviction motion without an evidentiary hearing. Movant contends he pled facts, not conclusions, that the record does not conclusively refute and that entitle him to post-conviction relief. To be entitled to an evidentiary hearing on a Rule 24.035 motion, the Movant must satisfy a three-prong test: (1) he must allege facts not conclusions which, if true, would warrant relief, (2) the facts must not be refuted by the record, and (3) the matters complained of must have resulted in prejudice to the Movant. Smith v. State , 353 S.W.3d 1, 3 (Mo. App. E.D. 2011). Under Rule 24.035(h), if the motion court determines the record conclusively shows the Movant is not entitled to relief, an evidentiary hearing shall not be held. Id.
Movant argues his guilty pleas were made unknowingly and involuntarily. The State argues Movant has waived this claim because it differs from the claim raised in his amended motion. Alternatively, the State contends this argument is refuted by the record.
In Claim 8(a)(1) of his amended motion, Movant asserted the trial court erred in accepting his guilty pleas without sufficient factual bases. In his brief on appeal, Movant argues his guilty pleas were involuntary and unknowing. When Movant filed his amended motion, our case law commonly conflated these inquiries.
Claims not raised in a motion for post-conviction relief are deemed waived and cannot be reviewed on appeal. Tisius v. State , 519 S.W.3d 413, 431 (Mo. banc 2017). In the past, Missouri courts have routinely used "factual basis" synonymously and interchangeably with a "knowing and voluntary plea." Booker v. State , 552 S.W.3d 522, 527 (Mo. banc 2018). However, as the Missouri Supreme Court noted in Booker , "factual basis" and a "knowing and voluntary plea" are distinguishable and not interchangeable terms, and using "factual basis" synonymously with "knowing and voluntary plea" is a misapplication of the law. Id. at 529. Booker asserted any case law to the contrary should no longer be followed. Id.
The Booker Court clarified the law controlling claims conflating "factual basis" and "knowing and voluntary plea" issues in post-conviction relief. Because of this intervening change of law this Court will exercise its discretion to review Point I ex gratia.4 See State v. Munoz , 345 S.W.3d 888, 891 (Mo. App. W.D. 2011) ().
Whether viewed as a factual basis claim or a claim his pleas were unknowing and involuntary, the motion court did not clearly err. Movant failed to allege prejudice in Claim 8(a)(1) of his amended motion. To be entitled to an evidentiary hearing, the Movant must allege that his complaints resulted in prejudice. Stanley v. State, 490 S.W.3d 389, 392 (Mo. App. E.D. 2016). Movant failed to do so. However, had Movant alleged prejudice in his amended motion, Movant’s claim is refuted by the record because the record clearly shows (1)...
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