Binion v. State
| Decision Date | 09 August 2022 |
| Docket Number | ED 109813 |
| Citation | 649 S.W.3d 359 |
| Parties | Hydres BINION, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
For Appellant: Gwenda R. Robinson, 1010 Market St., Ste. 1100, St. Louis, MO 63101.
For Respondent: Karen L. Kramer, P.O. Box 899, Jefferson City, MO 65102.
Hydres Binion ("Binion") appeals from the motion court's judgment denying post-conviction relief following a jury conviction for first-degree statutory sodomy. Binion raises three points on appeal. Point One argues the motion court clearly erred in denying his Rule 29.151 motion without an evidentiary hearing because appellate counsel was ineffective in failing to challenge the sufficiency of the evidence that he consciously committed the charged conduct. Points Two and Three contend the motion court erred in denying his Rule 29.15 motion because trial counsel was ineffective in failing to call two character witnesses at the sentencing hearing whose testimonies would have mitigated his sentence. Because the jury was free to disbelieve Binion's defense that he was asleep and did not consciously commit the charged act, the motion court did not clearly err in finding appellate counsel was not ineffective in failing to raise the issue on appeal, and we deny Point One. Because Binion cannot show that presenting the witnesses’ testimonies at the sentencing hearing would have mitigated the sentence given other substantial evidence presented to show his good character before the trial court, and because some of the suggested witness testimony addressed issues of guilt not before the trial court, the motion court did not clearly err in finding trial counsel provided effective assistance, and we deny Points Two and Three. Accordingly, we affirm the motion court's judgment.
The State charged Binion with one count of statutory sodomy in the first degree arising out of an incident that occurred in March 2014, when numerous family members stayed overnight at the home of Binion and Victim's grandmother. Victim was ten years old. Victim, Victim's cousin, and Binion slept fully-clothed on a pallet in the kitchen. The other family members slept in the bedrooms. The State charged that Binion inappropriately touched Victim during the night.
The case proceeded to a jury trial. At trial, Victim testified that he was asleep and woke up to Binion touching him with his hand. Victim testified that Binion touched his genitals under his clothes, making skin-to-skin contact. Binion squeezed Victim from behind in a bear hug, moving against him. Victim testified that Binion said nothing during the touching, and that Binion was "[s]till asleep." Binion testified that he only remembered going to sleep and waking up the next morning. Binion's theory of defense at trial was that because he was sleeping when the criminal conduct allegedly occurred, he could not have consciously committed the offense.
The jury found Binion guilty of the charged offense. At the sentencing hearing, the trial court noted it received the sentencing assessment report ("SAR") and "a number of impassionate letters" on behalf of Binion. The State informed the trial court that the sentencing range for first-degree statutory sodomy was ten to thirty years or life in prison due to the Victim's age. The State recommended eighteen years in prison given the nature of the offense and Binion's prior convictions. Trial counsel requested probation. Trial counsel discussed the mitigating context of Binion's prior convictions, none of which were for sexual abuse involving children, and directed the trial court's attention to details in some of the letters from friends and family on Binion's behalf, including a letter from his employer affirming his long-term employment. Trial counsel emphasized Binion's significant work history, and noted that Binion was a grandfather to twenty-four grandchildren with no prior allegations of him touching any children, has been a good provider for his family, and has a great deal of family support. Binion denied ever touching or harming a child. Binion further explained that when many family members stay over, they sleep on pallets together, and nothing like this had ever happened.
The trial court commented that Binion's track record on probation was mixed and that his criminal history included a sexual offense against an adult and alcohol abuse. The trial court acknowledged receiving "a big stack of letters and very impassioned on behalf of various people and that is impressive." The trial court explained that it declined to second-guess the jury's decision and noted Victim's age and the nature of the crime. The trial court sentenced Binion to twenty years in prison. Binion appealed from his conviction and sentence, and this Court affirmed the judgment. See State v. Binion, 490 S.W.3d 395 (Mo. App. E.D. 2016).
Binion moved for post-conviction relief, alleging among other claims that appellate counsel was ineffective for failing to challenge the sufficiency of the evidence on appeal and that trial counsel was ineffective in failing to call witnesses at his sentencing hearing. Binion's amended motion contended that trial counsel should have called Sharon Warren ("Warren") and Donald Hopkins ("Hopkins"). Binion alleged he told trial counsel both witnesses might be willing to testify about Binion's good character, quality family ties, and work history. Binion alleged that Warren, the mother of four of Binion's children, would have testified that none of their children could believe that Binion committed the charged offense and that Binion was a good father to their children and to the children from her previous relationships. Hopkins, the son of Victim's grandmother, would have testified that he could not believe the incident occurred in the manner in which it was reported because his mother called him the morning after the incident, told him that Binion had raped Victim, but later changed her story. Binion further claimed Hopkins would have informed the trial court that Binion was a good man who would never hurt anyone and that Hopkins's son was the other boy sleeping on the pallet with Binion and Victim that night. Finally, Hopkins would have testified that he did not know how anyone could believe that Victim knew or understood what had happened because Victim suffers from debilitating mental disabilities
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The motion court denied Binion's Rule 29.15 motion without an evidentiary hearing. Binion now appeals.
Binion raises three points on appeal. Point One asserts the motion court erred in denying his Rule 29.15 motion without an evidentiary hearing because appellate counsel was ineffective in failing to challenge the sufficiency of the State's evidence that the charged touching was a voluntary, conscious act. Points Two and Three contend the motion court erred in denying Binion's Rule 29.15 motion because trial counsel was ineffective in failing to call Warren and Hopkins, respectively, to testify as character witnesses at the sentencing hearing in that there was a reasonable probability that their testimonies would have caused the trial court to impose a lesser sentence.
Our review of a motion court's denial of post-conviction relief is limited to determining whether the findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Hounihan v. State, 592 S.W.3d 343, 347 (Mo. banc 2019) (internal citation omitted). Findings of fact and conclusions of law are clearly erroneous when, in light of the entire record, we are left with "a definite and firm impression that a mistake has been made." Id. (internal quotation omitted). We presume the motion court's findings are correct and defer to the motion court's credibility determinations. Shockley v. State, 579 S.W.3d 881, 892 (Mo. banc 2019) (internal citations omitted).
A movant is not guaranteed an evidentiary hearing. Rule 29.15(h). A motion court is not required to conduct an evidentiary hearing if the motion and the files and records of the case conclusively show the movant is not entitled to relief. Wallace v. State, 573 S.W.3d 136, 143 (Mo. App. E.D. 2019) (citing Rule 29.15(h); DePriest v. State, 510 S.W.3d 331, 338 (Mo. banc 2017) ).
"To obtain post[-]conviction relief under Rule 29.15, the movant must satisfy the two-prong Strickland standard." Hounihan, 592 S.W.3d at 347 (). Specifically, a movant must show by the preponderance of the evidence that: "(1) [ ] counsel failed to exercise the level of skill and diligence reasonably competent trial counsel would in a similar situation, and (2) [the movant] was prejudiced by that failure." Shockley, 579 S.W.3d at 892 (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052 ). "Because a movant must establish both deficient performance by counsel and prejudice, if a movant fails to establish one prong, a court need not address or consider the other." Dawson v. State, 611 S.W.3d 761, 769 (Mo. App. W.D. 2020) (internal quotation omitted).
Under the first prong, the movant must overcome the strong presumption that counsel's conduct was reasonable and effective. Shockley, 579 S.W.3d at 892 (internal citation omitted). "An attorney's performance is deficient when it fails to rise to the level of skill that would be exercised by a reasonably competent attorney under similar circumstances." Hounihan, 592 S.W.3d at 347 (citing Anderson, 564 S.W.3d at 600 ). "[S]trategic choices made after a thorough investigation of the law and the facts relevant to plausible opinions are virtually unchallengeable[.]" Shockley, 579 S.W.3d at 892 (citing Dorsey v. State, 448 S.W.3d 276, 287 (Mo. banc 2014) ).
Under the second...
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