Cook v. State

• Decision Date: 07 February 2020
• Docket Number: No. SD 35979,SD 35979
• Citation: 593 S.W.3d 117
• Parties: Kimberly K. COOK, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

593 S.W.3d 117

Kimberly K. COOK, Movant-Appellant,

v.STATE of Missouri, Respondent-Respondent.

No. SD 35979

Missouri Court of Appeals, Southern District, Division Two.

Filed: February 7, 2020

Attorney for Appellant: Tyler P. Coyle of Columbia, MO.

Attorneys for Respondent: Eric S. Schmitt, Atty. Gen., and Shaun J. Mackelprang, Asst. Atty. Gen., of Jefferson City, MO.

JEFFREY W. BATES, C.J.

Kimberly Keith Cook (Cook) appeals from an order denying his amended Rule 24.035 motion to set aside his four convictions for: robbery in the first degree; robbery in the second degree; and two counts of armed criminal action (ACA). See § 569.020; § 569.030; and § 571.015 RSMo (2000).¹ Cook was sentenced to a concurrent 25-year term of imprisonment on each of the four counts. Because the motion court’s decision to deny relief after an evidentiary hearing was not clearly erroneous, we affirm.

Cook bore the burden of proving the grounds asserted in his post-conviction motion by a preponderance of the evidence. Rule 24.035(i); Gales v. State , 533 S.W.3d 796, 799 (Mo. App. E.D. 2017). Appellate review of an order denying a motion for post-conviction relief is limited to a determination of whether the court’s findings of fact and conclusions of law are "clearly erroneous." Rule 24.035(k); Booker v. State , 552 S.W.3d 522, 526 (Mo. banc 2018). "The motion court’s findings and conclusions are clearly erroneous only if," after review of the record, this Court is "left with a definite and firm impression that a mistake was made." Ross v. State , 335 S.W.3d 479, 480 (Mo. banc 2011) ; Booker , 552 S.W.3d at 526. On review, the motion court’s findings are "presumptively correct." Wilson v. State , 813 S.W.2d 833, 835 (Mo. banc 1991) ; Gales , 533 S.W.3d at 799. The motion court was free to believe or disbelieve any evidence, whether contradicted or undisputed, including Cook’s testimony. See Vanzandt v. State , 212 S.W.3d 228, 231 (Mo. App. S.D. 2007). "This Court defers to the motion court on matters of credibility." Id . ; see Stacker v. State , 357 S.W.3d 300, 303 (Mo. App. S.D. 2012). The following summary of facts has been prepared in accordance with these principles.

Cook was originally charged by a four-count information with two counts of first-degree robbery and two counts of ACA. The information alleged that these offenses occurred in October 2014 when Cook forcibly stole: (1) "a motor vehicle from B.C. while armed with a deadly weapon"; and (2) "currency from P.H. while armed with a deadly weapon[.]" Each count of the information also alleged that Cook was a prior and persistent offender.

Thereafter, a plea agreement was reached. In exchange for a guilty plea on all four counts, the State agreed that each count would have a 25-year-sentence cap and that all of the sentences would run concurrently. The State also agreed to amend Count 1 from first-degree robbery to second-degree robbery.

In March 2017, a plea hearing was held, at which Cook entered his guilty plea to robbery in the first and second degrees, and two counts of ACA. The plea court accepted Cook’s plea. In June 2017, the plea court imposed sentences consistent with the plea agreement.

In November 2017, Cook timely filed a pro se Rule 24.035 motion for post-conviction relief. Appointed counsel filed an amended motion.² The amended motion alleged, inter alia , that plea counsel were ineffective: (1) for failing "to act as intermediary between [Cook] and the prosecutor in plea negotiations, which resulted in [Cook] ultimately receiving and accepting a less-favorable offer than he would have received, accepted and been sentenced to by the court had his attorneys adequately assisted [Cook] in negotiations"; and (2) for representing Cook under "an actual conflict of interest that adversely affected the adequacy of counsel’s representation[.]"

In January 2019, the motion court conducted an evidentiary hearing, at which Cook and his plea counsel testified. Thereafter, the motion court issued findings of fact and conclusions of law denying post-conviction relief. With respect to the first claim, the motion court found that Cook "did not show his attorneys failed to negotiate a better plea offer." With respect to the second claim, the motion court found that Cook "failed to show a conflict of interest adversely affected his case." This appeal followed. Additional facts will be included below as we address Cook’s two points on appeal.

Point 1

Cook’s first point contends his plea counsel provided ineffective assistance during plea negotiations. "It is well settled that the right to the effective assistance of counsel applies to certain steps before trial" including "the entry of a guilty plea."

Missouri v. Frye , 566 U.S. 134, 140, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012). In Frye , the United States Supreme Court held that "defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused." Id . at 145, 132 S.Ct. 1399. To show prejudice from counsel’s deficient performance, "defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer [and that] the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it[.]" Id . at 147, 132 S.Ct. 1399. The following facts are relevant to this point.

Cook’s plea counsel represented Cook over a two-and-a-half-year period and consisted of three attorneys: Wendy Garrison (Garrison); James Egan (Egan); and Amy Davis (Davis). All three attorneys testified. The following is a summary of their testimony.

Garrison, who entered her appearance in October 2014, a week after the original complaint was filed, gave the following testimony:

1. The prosecutor made an offer of 25 years on each of the four counts to run concurrently.

2. Garrison communicated that offer to Cook.

3. Cook wanted to sit on the case for a while to see if the offer would get any better.

Thereafter, Garrison was transferred to a different county.

Egan began representing Cook in May 2015. Egan gave the following testimony:

1. Egan proposed to the prosecutor that the 25-year offer be a "cap."

2. The prosecutor agreed to the 25-year cap on each count.

3. Egan communicated that offer to Cook. With the cap in place, Egan also told Cook he would argue for lesser time at sentencing.

4. Cook rejected the offer and felt what he needed was substance abuse treatment, proposing a treatment center in Hawaii.

5. Egan set up a face-to-face meeting with the prosecutor about the proposed treatment, but the prosecutor refused to accept the treatment proposal.

6. Egan then proposed a 20-year per count counteroffer to the prosecutor, but the prosecutor refused that counteroffer.

7. Although Cook wanted Egan to propose 15-year sentences, Egan did not think it appropriate to make "frivolous negotiations" of even less time when the prosecutor had already refused the 20-year offer.

In January 2016, the prosecutor announced that because Cook rejected all previous plea offers, these offers were revoked. In April 2016, Egan became aware of a conflict and filed a motion to withdraw from Cook’s case. The court granted that motion in May 2016.

Davis entered an appearance in Cook’s case in July 2016. Davis gave the following testimony:

1. Davis proposed 10 and 15 years’ imprisonment, but the prosecutor rejected these offers.

2. Davis eventually persuaded the prosecutor to put the prior offer of the 25-year cap per count "back on the table."

3. Cook "wanted a few last-minute negotiations," including dropping a first-degree robbery charge "to robbery second." Davis relayed that counteroffer to the prosecutor, and the prosecutor accepted it.

4. Davis communicated to Cook the offer of the 25-year cap and "robbery second" on one of the robbery charges.

5. Cook accepted this offer. According to Davis, the offer Cook accepted was the best offer the State ever made in this case.

Cook testified at length on his own behalf. He admitted that with respect to the first offer, it was his idea not to accept it, "lay it over for a while" and wait for a better offer with the passage of time.

In denying Cook’s claim, the motion court concluded that Cook "did not show his attorneys failed to negotiate a better plea offer." The court recognized that Cook "hoped for a better offer [but] the lack of a better offer was not due to a failure of his attorneys. ... The State was simply not willing to accept any of [Cook’s] counteroffers." The court went on to find that counsel provided effective assistance, particularly with respect to Egan and Davis:

Egan obtained a significant benefit by negotiating a cap rather than a straight term of years. The cap allowed defense counsel to argue for any reasonable sentence less that twenty-five years. Egan also benefitted [Cook] by arranging a face-to-face meeting with [the prosecutor] where [Cook] advocated for long-term treatment in Hawaii, which [the prosecutor] rejected. Egan conveyed an offer of twenty years per count to the State, which was not accepted. Then, Davis was effective in getting the State to put the cap of twenty-five years back on the table after withdrawing it. Davis proposed ten years on each count which was refused by the State. Ultimately Davis got the State to reduce one robbery count to a class B felony rather than a class A felony. All of these actions demonstrate effective assistance of counsel.

Cook’s point contends the motion court clearly erred in denying this claim because he received ineffective assistance during plea negotiations. Cook relies on the standard of conduct set forth in Frye , requiring defense counsel to communicate formal offers from the prosecution to a defendant, but recognizes "this case presents the reverse situation[.]" Specifically, Cook argues his three attorneys "collectively failed ... to convey [Cook’s] counteroffers to the prosecutor earlier in the case." According to Cook, he "was prejudiced...