Boyd v. State

• Decision Date: 21 November 2006
• Docket Number: No. 27636.,27636.
• Citation: 205 S.W.3d 334
• Parties: Joseph Leo BOYD, Jr., Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

205 S.W.3d 334

Joseph Leo BOYD, Jr., Appellant, v. STATE of Missouri, Respondent.

No. 27636.

Missouri Court of Appeals, Southern District, Division Two.

November 21, 2006.

Irene Karns, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., and Daniel N. McPherson, Asst. Atty. Gen., Jefferson City, for Respondent.

ROBERT S. BARNEY, Judge.

Appellant Joseph Leo Boyd, Jr. ("Movant") appeals from the motion court's denial without an evidentiary hearing of his second amended Rule 24.035 motion to vacate, set aside or correct judgment and sentence.¹ Movant alleges five points of motion court error. We affirm the judgment of the motion court.

The record reveals Movant was charged by Information on June 20, 2002, with one count of the Class D felony of unlawful use of a weapon, a violation of section 571.030.1(4); one count of the Class C felony of assault in the second degree, a violation of section 565.060; and one count of the felony of armed criminal action, a violation of section 571.015.² Thereafter, on May 13, 2003, pursuant to a plea agreement, Movant pled guilty to the aforementioned charges with the understanding that the State would recommend concurrent sentences of five years on the unlawful use of a weapon charge, ten years on the assault charge, and five years on the armed criminal action charge. Further, the State agreed not to pursue prosecuting Movant on a federal firearms charge if Movant appeared at his sentencing.³

At the guilty plea hearing, Movant stated that he understood the charges against him; that he understood the terms of his plea agreement; that he understood he had a right to proceed to trial; and that he understood the rights he was waiving by pleading guilty. Movant identified the plea agreement for the court; noted that he had signed the document with his own hand; and stated that it contained all the promises that had been made to him. Movant also stated that he "had sufficient time to talk with [his counsel] about this case;" that he "told [his counsel] everything [he] kn[e]w about it, including all the facts and witnesses so [his counsel] could prepare a defense and give [Movant] advice . . .;" and that he was "completely satisfied with [his counsel's] services."

The State then set out the factual basis for the guilty plea.

The State recited that on July 29, 2001, while in his van parked outside of the Forest Park Apartments in Springfield, Missouri, Movant came into contact with Roy Jones ("Mr.Jones") and Raymond King ("Mr.King"). There was an argument among the three men and Movant "displayed" a "high point .9 millimeter handgun." Movant pointed the gun at Mr. King and "Mr. Jones grabbed the firearm." Movant and Mr. Jones then wrestled with each other over control of the gun and the gun was discharged. Mr. King received a powder burn on his right arm where he was grazed by the bullet.

A neighbor, Karen Adkins ("Mrs.Adkins"), was taking her trash out when the incident occurred. She reported to police that "she observed [Movant] with one of the men in a headlock and the gun pointed down at their head." Mrs. Adkins heard a pop and ran back into her apartment to tell her husband, Darryl Adkins ("Deputy Adkins"), a Greene County deputy, about the incident.

When Deputy Adkins ran out to investigate, he saw that Movant "still had the firearm in his hand." According to Mrs. Adkins, Movant "[w]ould not follow the directions of [Deputy Adkins]; and, in fact, put the van into gear and drove forward striking a retaining wall and nearly hitting [a woman], who was in front of the van, hiding to avoid being injured by the gun." Movant was thereafter taken into custody. In Movant's possession, Officer Steve Magruder discovered the handgun; "live rounds of ammunition . . . ;" "a spent shell casing;" and "a bullet fragment that was found inside the van." Officer Morris Taylor ("Officer Taylor") assisted in Movant's arrest and read Movant his Miranda⁴ rights. Movant informed Officer Taylor that "he had brought the gun to the apartments that day, and that he had fired a shot up into the air."

After the State recited the factual basis for the plea, Movant's counsel agreed the State had indeed made a submissible case. Movant confirmed that he was in fact agreeing to the State's facts as recited. He stated that he was "[p]leading guilty" and that he had committed the crimes with which he was charged. Thereafter, Movant expressly pled guilty to the crimes listed on the Information and the trial court convicted him of those crimes.

At the sentencing hearing on June 13, 2003, the court sentenced Movant to "five years in the Missouri Department of Corrections on Count I, ten years on Count II, and five years on Count III as a prior and persistent offender to run concurrent to each other." Thereafter, Movant again confirmed to the court that his counsel had been present at his guilty plea; that his counsel did "everything [he] asked him to do before [he] pled guilty;" and that his counsel did not do anything "that [he] asked him not to do before [he] pled guilty." Then, the following colloquy occurred:

The Court: Um, did you tell [your counsel] all the facts and witnesses you knew about so he could prepare a defense and give you advice on this case?

Movant: Yes, sir, I did. Just one problem I got with it.

The Court: Okay.

Movant: Your honor, it still wasn't mine. I'm going to prison for somebody else.

The Court: Okay. But, I mean, that was a choice—you may say that. But, I mean, when we did the plea we talked about that, didn't we?

Movant: Yeah, we did. It's either I take this or loose [sic] my whole life. I can't gamble like that. Because I've been to prison before, and I know how the system is. And I can't take that chance.

The Court: Okay. Now, other than the plea agreement did [your counsel] promise you anything or threaten you in any way to have you plead guilty?

Movant: No, sir, he did not.

The Court: Did he ever tell you to lie to me when you appeared in court?

Movant: No, sir, he did not.

The Court: Are you still—do you still have these problems with his reputation [sic] of you?

Movant: (Shakes head.) I ain't never been a lawyer. I—sir, to be honest with you, I don't have a problem with it. I think he handled things to the best of his abilities. But I don't know that much about the law. So, therefore, on the other hand, I really can't say.

The Court: Okay. But I know that—you know, this case may not have turned out the way you wanted it to. But I'm just saying as far as [your counsel], you—

Movant: Yes, sir. Yes. As far as [my counsel] goes and as far as my knowledge, I feel he handled it the best he could.

Thereafter, the court found "probable cause to believe [Movant was] provided effective assistance of counsel."

On July 16, 2003, Movant filed a pro se Rule 24.035 motion. Thereafter, the motion court appointed counsel to represent Movant. An amended Rule 24.035 motion was filed on November 13, 2003, by his appointed counsel and a pro se second amended motion was filed by Movant on February 4, 2004. On September 28, 2004, the State filed a motion to dismiss Movant's Rule 24.035 motions without an evidentiary hearing.

On February 27, 2006, the motion court granted the State's motion to dismiss Movant's Rule 24.035 motions without an evidentiary hearing. This appeal by Movant followed.

Appellate 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); Ross v. State, 48 S.W.3d 667, 669 (Mo.App.2001). "`The findings and conclusions are deemed erroneous if after reviewing the record, this [C]ourt is left with the definite and firm belief that a mistake has been made.'" Goings v. State, 1 S.W.3d 600, 601 (Mo. App.1999) (quoting Saffold v. State, 982 S.W.2d 749, 752 (Mo.App.1998)). We presume that the motion court's findings and conclusions are correct. Butts v. State, 85 S.W.3d 132, 134 (Mo.App.2002).

Rule 24.035(h) provides that a movant will receive an evidentiary hearing unless "the files and records of the case conclusively show that the movant is entitled to no relief. . . ." In order for a Rule 24.035 movant to be entitled to an evidentiary hearing, the movant must satisfy three requirements: "(1) he must allege facts and not conclusions, which, if true, would warrant relief; (2) the allegations must not be refuted by the record; and (3) the matters of which he complains must have resulted in prejudice to his defense." Azbell v. State, 144 S.W.3d 863, 869 (Mo. App.2004). If any of these three factors is absent, the motion court may deny an evidentiary hearing. Wedlow v. State, 841 S.W.2d 214, 216 (Mo.App.1992).

To prevail on a claim of ineffective assistance of counsel where a movant has entered a plea of guilty, a "movant must show his [counsel's] representation fell below an objective standard of reasonableness and that, as a result, he was prejudiced." Cupp v. State, 935 S.W.2d 367, 368 (Mo.App.1996); see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "Movant must show, but for the conduct of his trial attorney about which he complains, he would not have pleaded guilty but would have insisted on going to trial." Cupp, 935 S.W.2d at 368. Where, as here, there is a negotiated plea of guilty, a claim of "ineffective assistance of counsel is immaterial except to the extent it impinges upon the voluntariness and knowledge with which the guilty plea was made." Id.

Movant's first, second and third points relied on assert the motion court erred in denying his Rule 24.035 motion without an evidentiary hearing "because [Movant] stated a claim not refuted by the record that . . . his plea was involuntary, induced by counsel's failure to investigate or otherwise prepare for trial." In his first point relied on, Movant alleges his counsel was ineffective "in failing to depose...