Creighton v. State, ED 105686

• Decision Date: 05 June 2018
• Docket Number: No. ED 105686,ED 105686
• Citation: 550 S.W.3d 572
• Parties: Kelvin CREIGHTON, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

550 S.W.3d 572

Kelvin CREIGHTON, Appellant,

v.STATE of Missouri, Respondent.

No. ED 105686

Missouri Court of Appeals, Eastern District, DIVISION ONE.

FILED: June 5, 2018

Lisa M. Stroup, 1010 Market St., Suite 1100, St. Louis, MO 63101, for appellant.

Joshua Hawley, Robert J. Bartholomew, P.O. Box 899, Jefferson City, MO 65102, for respondent.

KURT S. ODENWALD, Judge

Introduction

Kelvin Creighton ("Creighton") appeals from the motion court’s denial of his Rule 24.035¹ motion for post-conviction relief. Creighton raises two points on appeal, both challenging the motion court’s findings. Point One argues that the plea court improperly accepted his guilty plea without a factual basis. Because the State presented sufficient information to provide a factual basis for all charges against Creighton, and Creighton voluntarily admitted to all the facts against him, we find that the motion court did not err in finding that Creighton’s plea was proper. Point Two maintains that plea counsel was ineffective for failing to explain accomplice liability to Creighton. Because the motion court found plea counsel’s testimony credible—that plea counsel spoke with Creighton regarding accomplice liability—and because we defer to the motion court's credibility finding, we deny Point Two. We affirm the motion court’s judgment.

Factual and Procedural History

The State charged Creighton, as a prior offender, with one count of first-degree robbery, one count of first-degree burglary, and two counts of armed criminal action. The charges stemmed from allegations that Creighton and James Stampley ("Stampley") entered Victim’s home uninvited, while Stampley was armed with a gun, and stole $532 in cash.

Creighton pleaded guilty to the charged offenses. During the plea hearing, Creighton told the plea court that he understood the charges and the corresponding ranges of punishment. Creighton also admitted that plea counsel had explained the charges and sentencing to him and that he had sufficient time to consult with plea counsel before the plea hearing. The plea court inquired about the evidence the State would present at trial.

The State offered the following factual allegations: Creighton and Stampley entered Victim’s home, while Victim slept. Victim awoke to the sound of gunshots, exited her bedroom, and saw Creighton standing inside her front door. A short time later, Stampley climbed up the basement steps and confronted Victim. Victim recognized both men, and demanded to know what they were doing in her home. Victim had neither given them entrance, nor permission to remain in her home. Creighton and Stampley said they were trying to find a cell phone that belonged to Victim’s grandson, who lived with Victim. At that time, Stampley lifted his sweatshirt from his waist, displaying a handgun in his waistband. Stampley grabbed Victim’s purse off of her bedroom door, rifled through it, and snatched $532. Stampley and Creighton fled Victim’s home together.

Following the State’s recitation of the underlying facts, Creighton admitted that he was guilty of the charged crimes, and did not dispute any of the facts. The plea court accepted Creighton’s pleas as voluntary and supported by the facts presented. Creighton proceeded to sentencing.

The sentencing court sentenced Creighton to thirteen years in prison for each count of first-degree burglary and first-degree robbery, and three years in prison for each count of armed criminal action. The sentencing court ran the sentences concurrently. The sentencing court subsequently inquired about Creighton’s plea counsel. Creighton told the sentencing court that he did not have enough time to speak with plea counsel and plea counsel failed to conduct five depositions that Creighton requested. Further, Creighton testified that plea counsel told him there was "no point" in proceeding to trial. The sentencing court found no probable cause to believe that Creighton received ineffective assistance of counsel. Creighton moved for post-conviction relief pursuant to Rule 24.035.² The motion court conducted an evidentiary hearing.

At the evidentiary hearing, Creighton denied entering Victim’s home and disputed knowing Stampley’s intent to rob Victim using a gun. Further, Creighton stated that plea counsel never explained accomplice liability to him.

Plea counsel also testified at the evidentiary hearing. During the evidentiary hearing, plea counsel admitted that he did not recall a specific conversation where he explained accomplice liability to Creighton. However, plea counsel was certain that he advised Creighton of the accomplice liability elements and the importance of Creighton’s actions for his defense. Plea counsel recalled conversing with Creighton regarding the importance of Creighton’s location during the incident, Creighton’s knowledge of Stampley’s intentions, and possession of the gun. Plea counsel recollected Creighton mentioning that he had not entered Victim’s home, but instead, remained on the front porch as a lookout. Plea counsel remembered Creighton believing that Stampley entered Victim’s home to retrieve Stampley’s property from Victim’s grandson.

The motion court found that Creighton admitted to entering Victim’s residence, while she slept, without her permission. The motion court also noted Creighton’s acknowledgment that Stampley displayed a gun and appropriated Victim’s personal property before they both bolted from Victim’s residence together. Thus, the motion court concluded that the State presented sufficient facts to support an inference that Creighton and Stampley entered Victim’s residence for the purpose of stealing.

Regarding Creighton’s claim that plea counsel was ineffective for failing to explain the concept of accomplice liability, the motion court found that plea counsel’s testimony directly refuted the claim. Furthermore, the motion court concluded that Creighton was "not at all credible." The motion court denied Creighton’s motion. Creighton appeals.

Points on Appeal

Creighton raises two points on appeal. Point One claims that the motion court clearly erred in denying Creighton’s post-conviction relief motion because the facts to which he admitted during his plea hearing did not establish that he was guilty of the charged offenses, plea counsel did not so advise him, and the plea court accepted Creighton’s plea without a factual basis. Point Two argues that plea counsel was ineffective for failing to explain accomplice liability to Creighton.

Standard of Review

We review post-conviction motions under Rule 24.035 for clear error. Rule 24.035(k); State v. Taylor, 929 S.W.2d 209, 224 (Mo. banc 1996). We will reverse the motion court’s findings as clearly erroneous only if we are left with the definite and firm impression that a mistake was made. Taylor, 929 S.W.2d at 224. On review, the motion court’s findings are presumptively correct. Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991). Further, when the movant seeks post-conviction relief following a guilty plea, our review is limited to a determination of whether the guilty plea was knowing and voluntary. Rollins v. State, 974 S.W.2d 593, 595 (Mo. App. W.D. 1998). We defer to the motion court’s credibility findings. Jones v. State, 516 S.W.3d 447, 450 (Mo. App. E.D. 2017) (internal citations omitted).

Discussion

Creighton’s points on appeal are closely intertwined. Thus, we first discuss Creighton’s allegations of ineffective assistance of counsel. We subsequently discuss whether the State presented a sufficient factual basis to support Creighton’s guilty plea.

I. Strickland ³ Standard

Creighton claims that plea counsel was ineffective. Ineffective-assistance-of-counsel claims are controlled by the standard established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The movant must satisfy both prongs of the Strickland standard. Taylor, 929 S.W.2d at 224. Ineffective assistance of counsel exists when counsel fails to use the "customary skill and diligence that a reasonably competent attorney would exercise under similar circumstances, and the failure to exercise such diligence is prejudicial." Id. (quoting State v. Harris, 870 S.W.2d 798, 814 (Mo. banc 1994) ). "Prejudice is proven by evidence showing a reasonable probability that, but for counsel’s errors, the claimant would not have pled guilty." Rollins, 974 S.W.2d at 595. If the movant is unable to satisfy one of the Strickland-standard prongs, we need not address the other, Jones, 516 S.W.3d at 450 (quoting Taylor v. State, 382 S.W.3d 78, 81 (Mo. banc 2012) ).

Following a guilty plea, "any claim of ineffective assistance of counsel is immaterial except to the extent that it impinges the voluntariness and knowledge with which the plea was made." State v. Roll, 942 S.W.2d 370, 375 (Mo. banc 1997). Hence, the movant must show that counsel’s inadequate representation rendered the plea involuntary, and if not for the counsel’s incompetence, the movant would have insisted upon proceeding to trial. Jones, 516 S.W.3d at 450.

II. Ineffective-Assistance-of-Counsel Claims

Creighton contends that plea counsel was ineffective for failing to properly inform him about accomplice liability. However, plea counsel testified at the evidentiary hearing that, although he did not remember the specific conversation, he was positive that he and Creighton discussed accomplice liability. Specifically, plea counsel recalled Creighton insisting that he did not possess the gun, and that he was simply acting as a lookout during the incident. Plea counsel also remembered that he and Creighton discussed the importance of Creighton’s position within the house for his defense.

The motion court found plea counsel’s testimony credible and Creighton’s testimony not credible. We defer to the motion court’s credibility findings on appeal. Id. We note that, during the plea hearing, Creighton affirmatively stated that he was satisfied with his plea counsel’s performance; it was not until...