Cooper v. State

• Decision Date: 16 February 2021
• Docket Number: WD 82926
• Parties: Richard V. COOPER, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

621 S.W.3d 624

Richard V. COOPER, Appellant,

v.STATE of Missouri, Respondent.

WD 82926

Missouri Court of Appeals, Western District.

Opinion filed: February 16, 2021

Motion for Rehearing and/or Transfer Denied March 30, 2021

Application for Transfer Denied June 1, 2021

Keith P. O'Connor, for Appellant.

Shaun Mackelprang, Jefferson City, for Respondent.

Division Two: W. Douglas Thomson, Presiding Judge, Lisa White Hardwick, Judge and Edward R. Ardini, Jr., Judge

W. DOUGLAS THOMSON, JUDGE

Richard V. Cooper appeals from the Circuit Court of Jackson County's denial of his Rule 24.035 motion after an evidentiary hearing. In his first two points on appeal, Cooper contends that the motion court clearly erred in denying his claim for ineffective assistance of counsel. In his third point, Cooper argues that the motion court clearly erred in disallowing his second amended motion by miscalculating the filing deadline, or alternatively, failing to apply the abandonment doctrine. We affirm.

Factual and Procedural History

In 2007, the State charged Richard Cooper ("Cooper") with the class A felony of murder in the first degree, three counts of the class A felony of assault in the first degree, four counts of the class A felony of assault of a law enforcement officer in the first degree, and eight counts of the unclassified felony of armed criminal action.

During Cooper's two years in custody awaiting trial, Cooper's retained counsel noticed a serious deterioration in Cooper's mental fitness. In May 2010, counsel, citing an attempted suicide and other concerning behavior, requested a mental examination of Cooper, which the trial court granted. The examination reported a diagnosis of "Psychotic Disorder, Not Otherwise Specified" and opined that although Cooper was at that time incompetent to proceed, "there [was] a substantial probability that the defendant [would] be mentally fit to proceed in the reasonably foreseeable future following an appropriate course of psychiatric treatment." The trial court found Cooper incompetent to proceed and ordered him to be committed to the department of mental health. On April 5, 2011, a second report evaluating Cooper's competence was issued. Its findings were similar to the first report, but the primary diagnosis included "Schizophrenia, Undifferentiated Type" and noted the need to rule out malingering. It also recommended that Cooper be found incompetent to proceed and remain at Fulton State Hospital for further treatment. This second evaluation also noted that "[i]f found unfit to proceed, there is a substantial probability that he will attain the mental fitness to proceed to trial in the reasonably foreseeable future."

On October 17, 2011, a third evaluation addressing Cooper's competence was issued. The report diagnosed Cooper with "Brief Psychotic Disorder, in Full Remission" and opined that Cooper was malingering. It reported that Cooper did not "currently suffer from a mental disease or defect" and that he had "the capacity to understand the proceedings against him and ... to assist his attorney in his own defense." The report recommended that Cooper "be allowed to proceed to trial for the disposition of the charges pending against him." On November 7, 2011, a motion to proceed was filed and the court accepted the report and without a hearing found Cooper competent to proceed.

On April 12, 2013,¹ pursuant to plea negotiations, the State filed an amended information that reduced the charge of murder in the first degree to murder in the second degree and dismissed three counts of assault in the first degree and three counts of armed criminal action.² At the guilty plea hearing, Cooper testified that he had previously been found incompetent to proceed. He testified, however, that he was now competent, that he understood the proceedings, and that he was there "[t]o take a plea." He testified that he was going to ask that all of his sentences run concurrently. Cooper testified that he understood that for each charge of assault of a law enforcement officer he could be sentenced to "[t]en to 30 to life." He stated that he understood that the minimum sentence for armed criminal action was three years and that the maximum was "[l]ife, 99." He stated that he understood that the charge of murder in the first degree would be reduced to murder in the second degree and that, instead of life without parole, he would be facing "ten years to 30 years or life."

Cooper testified that plea counsel had not promised him "how much time [he would] actually serve." He also agreed that he had concerns that the judge was "going to unload on [him]," that the judge "could" unload on him, and that the judge could give him a sentence "all the way down to ten." He stated that he understood that if anyone had told him what they thought the court was going to do, that person was "flat out lying." The court accepted Cooper's guilty pleas and found him guilty of the offenses to which he pled guilty. After the plea, a sentencing assessment report was completed during which Cooper was interviewed.

On July 1, 2013, the parties appeared for sentencing. Plea counsel informed the court that Cooper wanted plea counsel to withdraw and wanted to withdraw his guilty pleas. The court deferred sentencing until those issues could be raised by motion and fully considered. On July 26, 2013, Cooper filed a motion to withdraw his guilty plea alleging that his plea was not voluntary because "he was under duress and did so without understanding the charges and the consequences of the guilty plea." That same day, the parties again appeared for a hearing. Plea counsel stated that Cooper had decided to continue to retain him and requested a hearing to address his motion to withdraw the guilty plea.

On August 9, 2013, the court held a hearing on Cooper's motion to withdraw his guilty plea. There, the trial court found that Cooper had been advised of his rights; that he understood those rights; that he voluntarily, freely, and intelligently waived his rights; that he was competent and was able to understand and assist his attorney; and that his decision to plead guilty was made freely, voluntarily, and intelligently.³ The court denied the motion and set the case for sentencing.

On August 23, 2013, the parties appeared for Cooper's sentencing hearing. The court sentenced Cooper to life imprisonment for murder in the second degree and for each count of assault of a law enforcement officer in the first degree. The court sentenced him to ten years imprisonment for each count of armed criminal action. The court ordered the sentences to run concurrently. Upon leaving the courtroom, plea counsel stated to Cooper's family that he believed Cooper still had unresolved mental issues.

On October 21, 2013, Cooper timely filed his pro se Rule 24.035 motion. On August 15, 2014, Cooper's retained post-conviction counsel McMillin entered his appearance for Cooper, who then timely filed the amended Rule 24.035 motion. Nearly three years later, on May 3, 2017, Cooper's retained counsel moved to withdraw, which the court permitted.⁴ On February 25, 2018, Cooper's newly-retained counsel requested leave to strike the amended 24.035 motion and file a second amended motion. The motion court initially entered its order granting Cooper's request to file a second amended motion. The motion court later vacated this order, noting that because the deadline for filing a 24.035 motion is mandatory and cannot be extended by the trial court, it had no authority to grant Cooper's motion to file a second amended motion.⁵

On October 12, 2018, the motion court held a post-conviction relief hearing. Both plea counsel and Cooper testified. On March 1, 2019, the motion court denied Cooper's Rule 24.035 motion. In doing so, the motion court addressed only Cooper's amended motion filed on August 21, 2014, and did not consider his second amended motion. The motion court found and concluded that Cooper's claims were "clearly refuted by the plea transcript and consist of conclusions rather than facts." On March 29, 2019, Cooper filed a motion to amend the judgment, which the motion court denied on June 5, 2019. Cooper appeals. Further factual details will be outlined as relevant in the analysis below.

Standard of Review

Our review of the denial of a Rule 24.035 motion "is limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous." Rule 24.035(k). "The motion court's findings and conclusions are clearly erroneous only if, after reviewing the entire record, the appellate court is left with the definite and firm impression that a mistake has been made." Hendrix v. State , 473 S.W.3d 144, 148 (Mo. App. W.D. 2015) (citing Dunlap v. State , 452 S.W.3d 257, 262 (Mo. App. W.D. 2015) ). We presume the motion court's findings and conclusions are correct. Nguyen v. State , 184 S.W.3d 149, 151-52 (Mo. App. W.D. 2006) (citing Wilson v. State , 813 S.W.2d 833, 835 (Mo. banc 1991) ). "The movant has the burden of proving movant's claims for relief by a preponderance of the evidence." Rule 24.035(i). "The motion court is not required to believe the testimony of the movant or any other witness, even if uncontradicted, and this Court defers to the motion court's determination of credibility." Smith v. State , 413 S.W.3d 709, 715 (Mo. App. E.D. 2013).

Analysis

Point One.

In his first point on appeal, Cooper claims that the motion court erred in denying his Rule 24.035 motion for post-conviction relief, specifically claim 12(j), which stated in its entirety , that Cooper's counsel was ineffective because he "stated to Defendant's family that Defendant still had unresolved mental issues, yet defendant's attorney did not act on it." His point on appeal initially claims that he received ineffective assistance of counsel because trial counsel failed to act on Cooper's incompetency (the "Initial Claim"), but goes further, claiming that trial counsel "failed to request a...