Burnett v. State

• Decision Date: 29 June 2010
• Docket Number: No. ED 92543.,ED 92543.
• Citation: 311 S.W.3d 810
• Parties: Sherman BURNETT, Jr., Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

311 S.W.3d 810

Sherman BURNETT, Jr., Appellant, v. STATE of Missouri, Respondent.

No. ED 92543.

Missouri Court of Appeals, Eastern District, Division Two.

December 22, 2009.

Motion for Rehearing and/or Transfer to Supreme Court Denied January 25, 2010.

Application for Transfer Denied June 29, 2010.

Timothy J. Forneris, Assistant Public Defender, St. Louis, MO, for appellant.

Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.

PATRICIA L. COHEN, Judge.

Introduction

Sherman Burnett (Movant) appeals from the judgment of the Circuit Court of St. Louis County denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. Movant asserts that the motion court clearly erred in denying his claims that: (1) the sentence imposed by the plea court violated the constitutional prohibition of "cruel and unusual punishment" and was arbitrary and capricious; and (2) plea counsel provided ineffective assistance by coercing him to plead guilty. We affirm.

Factual and Procedural Background

Movant was fifteen years old on August 10, 2007, when he pleaded guilty to child kidnapping, forcible sodomy, first-degree assault, and attempted forcible rape, which he committed at the age of thirteen.¹ At the plea hearing, the State recited the charges against Movant and stated that the range of punishment for child kidnapping and first-degree assault was ten to thirty years, or life, and the range of punishment for forcible sodomy and attempted forcible rape was five years to life.

Movant testified that he was pleading guilty freely and voluntarily; no one forced him to enter a plea of guilty to any of the charges; he did, in fact, commit the crimes with which he was charged; he was satisfied with his representation; he had sufficient time to discuss the matter with his attorney and anyone else with whom he wished to speak; and neither his plea counsel nor anyone else had pressured or forced him to enter pleas of guilty to any of the charges. The plea court then confirmed that Movant was not pleading pursuant to a plea agreement, and Movant stated that he understood that the court was therefore "free to consider the full range of punishment." The plea court went on to ensure that Movant understood the rights attendant to trial that he was forfeiting by pleading guilty.

At the plea court's request, the State clarified the factual bases for Movant's guilty plea. The prosecutor stated that, were the case tried, the State would present evidence that on November 11, 2005, Movant, then thirteen years of age, removed Victim, six years of age, from her home without her parents' consent and took her to some nearby railroad tracks. There, Movant removed Victim's clothes, beat her severely, and inserted his fingers into her vagina. Movant also rubbed his penis on Victim's vagina and choked her, leaving visible marks on her neck. Victim sustained serious injuries, including skull fractures, a lost tooth, a torn ear, a lacerated liver, a swollen duodenum, and "bruises from her head down to her thighs." Victim also suffered hypothermia as a result of being outside all night.

After the prosecutor recited the evidence, Movant again testified that he did, in fact, "do those things." The plea court found that Movant "freely, voluntarily and knowingly entered his pleas of guilty" and accepted Movant's plea. The plea court ordered the State Board of Probation and Parole to conduct a pre-sentence investigation, and, due to Movant's age, directed the State Board to consider the feasibility of dual jurisdiction.²

At Movant's sentencing hearing, the plea court stated that it had received the presentence investigation, as well as a report from the Missouri Division of Youth Services (DYS), letters written on Movant's behalf, and victim impact statements written by Victim and Victim's mother. Movant offered the testimony of Brent Buerck, the DYS senior program administrator who had assessed Movant and determined that DYS would accept Movant into its dual-jurisdiction program. On cross-examination, Mr. Buerck testified that, during his assessment, Movant had stated that "he had a temper" and the reasons he beat Victim so severely were "so she wouldn't remember anything" and "he wanted to make it look like somebody else did it." Mr. Buerck also acknowledged that Movant attempted to mitigate responsibility for his crimes by telling him that Victim had thrown a rock at him, an allegation Movant first made during his interview with DYS.

The plea court declined defense counsel's request that it impose sentence pursuant to the dual-jurisdiction program, explaining:

The Court has considered the evidence and the reports that have been submitted to it, and in light of the severity of the assault and what appears to be the threat of the Defendant to the community, the Court finds he is not an appropriate person for placement in the Dual Jurisdiction program.

The plea court then announced Movant's sentence, stating:

The Court has reviewed a number of documents and has had a great deal of difficulty trying to figure out what an appropriate sentence would be in this particular case. However, the victim in her impact statement has given me some guidance. And she has said, I want for him to go away for sixty years, and that's what the sentence is going to be.

Thereafter, the plea court sentenced Movant to consecutive prison terms of twenty years for child kidnapping, twenty years for first-degree assault, ten years for forcible sodomy, and ten years for attempted forcible rape, for a total sentence of sixty years.

The plea court then asked Movant questions related to the effectiveness of his plea counsel. Movant testified that he would have liked "a little bit" more time to talk to plea counsel, but plea counsel had done what he asked, had not made any threats or promises to induce Movant to plead guilty, and had not suggested that he give any false answers to questions asked at the plea or sentencing hearings. Movant acknowledged that he did not plead guilty pursuant to a plea agreement and stated that no one had promised him what the sentence was going to be before he entered his plea of guilty. Finally, Movant testified that he was not "in any way unhappy with the way his lawyer represented him." The plea court found no cause to believe counsel provided ineffective assistance.

Movant filed a Rule 24.035 motion for post-conviction relief, which counsel later amended. In his motion, Movant claimed that his sixty-year sentence constituted an unconstitutional and excessive punishment for a thirteen-year-old and that plea counsel was ineffective for pressuring Movant to plead guilty. The motion court found that Movant's claims were refuted by the record and denied Movant's motion without an evidentiary hearing. Movant appeals.

Standard of Review

Our review of the motion court's denial of post-conviction relief pursuant to Rule 24.035 is limited to a determination of whether the motion court's findings and conclusions are clearly erroneous. Missouri Supreme Court Rule 24.035(k). As the motion court's findings and conclusions are presumed to be correct, they will be deemed clearly erroneous only if, upon a review of the record, we are left with the firm impression that a mistake has been made. State v. Roll, 942 S.W.2d 370, 375 (Mo. banc 1997).

Discussion

1. Cruel and Unusual Punishment

In his first point on appeal, Movant claims that the motion court clearly erred in denying his Rule 24.035 motion because the plea court's imposition of a sixty-year prison sentence was excessive and in violation of the Eighth Amendment of the United States Constitution and Article I, Section 21 of the Missouri Constitution.³ Specifically, Movant argues that the sentence was improper because the plea court did not apply the factors set forth in Roper v. Simmons, 543 U.S. 551, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). Movant further contends that the sentence was not proportionate to the offense, or the offender, and was arbitrary because it ignored DYS's recommendation and was based upon the eight-year-old Victim's impact statement. We disagree.

"The Eighth Amendment guarantees individuals the right not to be subjected to excessive sanctions." Roper, 543 U.S. at 560, 125 S.Ct. 1183. "The right flows from the basic precept of justice that punishment should be graduated and proportioned to the offense." Id. (quoting Atkins v. Virginia, 536 U.S. 304, 311, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002)). A sentence for a term of years will be deemed cruel and unusual only if it is "grossly disproportionate" to the crime committed. Lockyer v. Andrade, 538 U.S. 63, 72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003); State v. Pribble, 285 S.W.3d 310, 314 (Mo. banc 2009) ("Reviewing courts are to determine, as a threshold matter, whether a sentence is `grossly disproportionate.'"). To determine whether a sentence is grossly disproportionate, we compare the gravity of the offense to the harshness of the penalty. Ewing v. California, 538 U.S. 11, 28, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003); Pribble, 285 S.W.3d at 314. Gross disproportionality will be found only in "exceedingly rare" and "extreme" cases. Lockyer, 538 U.S. at 73, 123 S.Ct. 1166 (quotation omitted).

Section 557.036.1 directs courts to "decide the extent or duration of sentence or other disposition to be imposed under all the circumstances, having regard to the nature and circumstances of the offense and the history and character of the defendant and render judgment accordingly." Mo.Rev.Stat. § 557.036.1 (2000). In other words, it is the sentencing court's duty "to impose a sentence on a case-by-case basis, and to fashion the punishment to both the crime and the criminal." State v. Collins, 290 S.W.3d 736, 746 (Mo.App. E.D.2009). When the sentence imposed is within the range prescribed by statute, the sentence generally will not be found excessive, or grossly disproportionate,...