Bishop v. State, 21999
| Decision Date | 17 June 1998 |
| Docket Number | No. 21999,21999 |
| Citation | 969 S.W.2d 366 |
| Parties | Billy G. BISHOP, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent. |
| Court | Missouri Court of Appeals |
Louis J. Basso, St. Louis, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Meghan J. Stephens, Asst. Atty. Gen., Jefferson City, for respondent.
Billy G. Bishop (Movant) appeals from the motion court's judgment which denied his Rule 24.035 post-conviction motion. 1
On November 5, 1996, Movant pleaded guilty to the class B felony of conspiracy to commit first degree murder. See Rule 24.02; §§ 564.016, 565.020. 2 On December 3, 1996, the trial court sentenced Movant to the Missouri Department of Corrections for a term of ten years. See § 558.011.
Movant filed his Rule 24.035 post-conviction motion on February 28, 1997, through post-conviction counsel followed by an amended Rule 24.035 motion on April 25, 1997. On October 3, 1997, the motion court held an evidentiary hearing on Movant's post-conviction motion and entered its judgment on November 18, 1997, denying Movant's post-conviction motion. On appeal to this Court, Movant assigns four points of error.
Our review of the denial of a Rule 24.035 motion for post-conviction relief is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 24.035(k); White v. State, 957 S.W.2d 805, 807 (Mo.App.1997); State v. Timmons, 956 S.W.2d 277, 283 (Mo.App.1997). Findings and conclusions are clearly erroneous only if, after a review of the entire record, we are left with the definite and firm impression that a mistake has been made. White, 957 S.W.2d at 807.
We address Movant's first two assignments of error together. Movant contends that the motion court clearly erred in denying his post-conviction motion because the record shows that he was denied effective assistance of counsel in that his trial counsel failed to advise him of the affirmative defense of entrapment to the conspiracy offense to which he was charged. 3 Therefore, he contends that his guilty plea was not voluntarily entered.
A guilty plea not only admits guilt but also consents to judgment of conviction without a jury trial. State v. Roll, 942 S.W.2d 370, 375 (Mo. banc 1997). Accordingly, a guilty plea must be a voluntary expression of the defendant's choice, and a knowing and intelligent act done with sufficient awareness of the relevant circumstances and likely consequences. Id. (citing Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 1469, 25 L.Ed.2d 747 (1970)). "[T]he effectiveness of counsel is relevant only to the extent that it affects the voluntariness of the plea." Pelton v. State, 794 S.W.2d 301, 303 (Mo.App.1990).
To prevail on a claim of ineffective assistance of counsel, the claimant must show by a preponderance of the evidence that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would have exhibited under similar circumstances and that the claimant was thereby prejudiced. White, 957 S.W.2d at 807 (). When challenging a guilty plea, prejudice is proven by evidence showing a reasonable probability that, but for counsel's errors, the movant would have not pleaded guilty and would have insisted on going to trial. Id. at 808(citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370-71, 88 L.Ed.2d 203 (1985); State v. Roll, 942 S.W.2d 370, 375 (Mo. banc 1997)).
In its judgment, the motion court found the following relative to Movant's contention that he was denied effective assistance of trial counsel:
At the 24.035 hearing, the Movant presented no evidence on this issue. Movant did file an affidavit with his motion, signed by plea counsel. That portion of this affidavit, which deals with this issue, states:
I reviewed the facts and evidence against [Movant]. I considered whether there was sufficient evidence to claim that [Movant] was entrapped by the two undercover officers. I reviewed Section 562.066 RSMo. (1994) on entrapment. At some point it was my belief that this defense was not available to [Movant] on the Conspiracy charge. My belief was based on my review of the jury instructions and Notes on Use and Section 562.066 RSMo. (1994). I do not think this belief played a part in [Movant's] decision to plead guilty because I do not think I communicated this belief to him prior to his decision to plead guilty. I advised him that I did not think a defense of entrapment would be successful at trial. I did not advise him that it was not available at trial.
The Court finds that Movant was not denied effective assistance of counsel. 4
(emphasis added).
From the foregoing, we determine that the motion court found trial counsel's affidavit to be persuasive and more credible than Movant's affidavit and assertions contained in his post-conviction relief motion. "The trial court chose not to believe movant's testimony that the defense of entrapment was not discussed...." Smith v. State, 628 S.W.2d 393, 396 (Mo.App.1982). The trial court accepted trial counsel's testimony as believable when trial counsel informed Movant that he did not think a defense of entrapment would be successful at trial. "This is the prerogative of the fact finder, to whom this court defers in the event of a conflict in the evidence." Id.(citing Leonard v. American Walnut Co., Inc., 609 S.W.2d 452, 454 (Mo.App.1980)); see also State v. Dunmore, 822 S.W.2d 509, 512 (Mo.App.1991)(the motion court is not required to believe the testimony of movant and an appellate court must defer to the motion court's determination of credibility). Points One and Two are denied.
In his third point of trial court error, Movant contends that the trial court erred in finding that the evidence adduced by the state at the guilty plea hearing established the crime of conspiracy under section 564.016. 5 Movant contends that all essential elements of the crime of conspiracy were suggested and supplied by the state, and that the state's overreaching tactics compelled Movant's actions. We disagree.
"The conspiracy offense is committed if a person, with the purpose of promoting the offense, agrees with another person that at least one of them will engage in conduct constituting the offense." State v. Hlavaty, 871 S.W.2d 600, 605 (Mo.App.1994). "The subjective intent of the other individual, the person with whom the defendant is alleged to have conspired, is irrelevant." Id. "[O]ur conspiracy statute 'focuses upon the conduct of one person' regardless of the subjective intent of the other." State v. Welty, 729 S.W.2d 594, 597 (Mo.App.1987)(quoting State v. Hohensee, 650 S.W.2d 268 (Mo.App.1982)). "The clandestine nature of conspiracies usually does not permit direct evidence, and the prosecution must rely on logical inferences drawn from the course of conduct." Id. "The settled rule is that direct evidence of an explicit agreement between two or more persons is not needed to establish a conspiracy under § 564.016, but the agreement can be established by circumstantial evidence which shows no more than a tacit understanding among the participants." Hlavaty, 871 S.W.2d at 605.
We note that immediately prior to Movant tendering his guilty plea to the trial court, the prosecutor summarized the evidence against Movant as follows:
[During] a time period between June 21 and June 26th of this year [1996] in Christian County, Missouri, the [Movant], with the purpose of promoting and facilitating an offense of first-degree murder conspired with two undercover police officers and made an agreement that they would kill a former girlfriend of [Movant] by the name of Jean Carol Tadeja, who at the time was living in Greene County. The agreement that was made was that these undercover officers would commit this murder in exchange for a deer rifle that [Movant] owned and $550.00 in cash, and that in furtherance of the conspiracy he provided this rifle to these two undercover officers as partial payment.
The transactions were recorded on video tape and on audio tape. In addition, we would have the testimony of two undercover officers.
Additionally, the following colloquy took place at the time of the guilty plea hearing:
THE COURT: Mr. Bishop [Movant], did you hear what the prosecutor said [summary of the evidence]?
THE DEFENDANT [Movant]: Yes, sir.
....
By knowingly and voluntarily pleading guilty, Movant's contentions concerning unauthorized state activities relating to Movant's conspiracy charge became irrelevant. "[A] plea of guilty is an admission of the facts alleged in the information." Pelton v. State, 831 S.W.2d 651, 653 (Mo.App.1992). "[F]or a guilty plea to be valid it is not necessary that the movant admit to, or even believe the veracity of the charges against him; all that is required is that the plea be knowing and voluntary." Id. (quoting Pippenger v. State, 794 S.W.2d 717, 721 (Mo.App.1990)). "[A] guilty plea is not involuntary even where the accused maintains innocence, so long as the plea represents a voluntary choice of...
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