Dobbs v. State

Decision Date13 May 2009
Docket NumberNo. SD 29221.,SD 29221.
Citation284 S.W.3d 201
PartiesLynell D. DOBBS, Appellant, v. STATE of Missouri, Respondent.
CourtMissouri Court of Appeals

Nancy A. McKerrow, Columbia, for Appellant.

Chris Koster, Atty. Gen., and Jamie Pamela Rasmussen, Asst. Atty. Gen., Jefferson City, for Respondent.

ROBERT S. BARNEY, Judge.

Appellant Lynell D. Dobbs ("Movant") appeals the motion court's denial following an evidentiary hearing of his "Amended Motion Under Rule 24.035."1 In his sole point relied on, Movant asserts the motion court erred in denying his Rule 24.035 motion in that he was denied effective assistance of counsel based on his counsel's conflict of interests. We affirm the judgment of the motion court.

The record reveals Movant was charged by Felony Information on September 21, 2005, with one count of the Class C felony of burglary in the second degree, a violation of section 569.170, for a theft which allegedly occurred on May 6, 2004. Movant hired attorney Darrell Deputy ("Darrell") to represent him in this matter.

On July 10, 2006, pursuant to a plea agreement, Movant pled guilty to the aforementioned charge. At the guilty plea hearing, Movant stated he understood the charges against him as recited by the plea court; he understood he had a right to proceed to trial; he understood the range of punishment; he had an opportunity to consult with his counsel and was satisfied with his representation; and he understood the rights he was waiving by pleading guilty. Movant then informed the plea court he was pleading guilty because he was, in fact, guilty of the crime charged and no one had threatened or promised him anything in exchange for his guilty plea. Thereafter, Movant expressly pled guilty and the plea court convicted him of the crime charged "beyond a reasonable doubt." Movant was sentenced per the plea agreement to five years in the Missouri Department of Corrections with the execution of that sentence to be suspended. Movant was then placed on five years supervised probation.

At some point in early 2007 Movant violated his probation. On April 24, 2007, following a hearing, Movant's probation was revoked and his five year sentence was executed.

On July 2, 2007, Movant filed his pro se Rule 24.035 motion. Thereafter, the motion court appointed counsel to represent Movant and an amended Rule 24.035 motion was filed on November 19, 2007. In his amended motion, Movant argued he was "denied conflict-free counsel." In particular he complained that Darrell's son, Scott Deputy ("Scott"), who had appeared in court on Movant's behalf on one occasion, had also served as the prosecuting attorney on Movant's charged offense.2 Movant asserted that Scott had once appeared in court on the State's behalf to request a capias warrant against Movant for failing to appear in court on the burglary charge at issue in the underlying case. He asserted he was never informed of this conflict of interest by Darrell or Scott and that he never waived this conflict of interest such that he "was denied his rights to conflict-free counsel, effective assistance of counsel, and due process of law, and his plea was involuntarily entered."

The motion court held an evidentiary hearing on Movant's amended Rule 24.035 motion on March 14, 2008. At the evidentiary hearing, Darrell testified that Scott was not employed by him "but on occasion [he] would ask him if he would appear for [Darrell] if [Darrell] had a conflict." He related he asked Scott to appear for him on one occasion in relation to Movant's case. He asserted he informed Movant that Scott had been a prosecutor "but [he] didn't discuss what he did or necessarily his involvement." He stated he did not inform Movant about a potential conflict of interest "because [he] did not see any potential conflicts of interest if Scott was no longer employed at the prosecutor's office if he simply appeared for [Darrell] on a case." Darrell also testified he had informed Movant that Scott was going to stand in for him on one occasion. Darrell related he did not feel there was a problem in doing that because Movant told him "he got along with Scott" and expressed no reservations about such an arrangement. Darrell said that he negotiated the plea agreement in the matter and was Movant's attorney of record such that Movant's case was his sole responsibility.

Regarding Movant's decision to accept the plea agreement, Darrell related Movant had previous legal entanglements and he counseled Movant "that if he could get out of this on probation, it would make sense for him to do that."3 He told Movant he was prepared to take the matter to trial if that was Movant's decision, but he "couldn't guarantee to him that he was going to walk out of th[e] courtroom a free man and [he] felt with the plea offer ... he would get probation." He also related he told Movant that he needed to keep his promises to pay for Darrell's services, especially if he chose to proceed to trial.

Movant testified that Darrell never explained to him that Scott might appear on his behalf. He related he was familiar with Scott because Scott retrieved from him his weekly payments to Darrell for his legal fees. He stated he thought Scott appeared in court with him "[a]t least twice...." Movant testified it was not until his preliminary hearing that Scott told him he had been a "prosecuting attorney on [his] case." He related Darrell never advised him of Scott's previous employment and neither he nor Scott discussed with Movant any potential conflict of interest. He stated he did not know about conflicts of interests at the time of his plea and he "found out about the conflict of interest" while in prison.

Movant also related that Darrell presented him with the plea agreement on the day of trial and informed him Scott "had worked out a deal with the prosecuting attorneys' office...." Movant testified he did not want to accept the deal and wanted to proceed to trial. He related Darrell then told him that "he wouldn't represent [him] anymore ..." if he did not accept the plea agreement. He stated Darrell "told [him] that [he] hadn't paid him all the money [he] needed to pay him in order to go to a jury trial." He related Darrell's statements caused him to accept the plea because he felt "that [he] couldn't get another attorney" and he did not have any more money. He related that he was satisfied with Darrell's representation until their conversation relating to the plea agreement when he felt he was being abandoned. He stated he did not inform the plea court of his dissatisfaction because Scott had been a prosecuting attorney and Darrell had "been an attorney around here for all these years—that something would happen to [him]. That ... [he] would have some problems with the court system."

The motion court entered its "Order Denying Movant's Motion to Vacate, Set Aside or Correct Judgment and Sentence under Rule 24.035" on June 13, 2008. The motion court found Darrell was Movant's attorney of record and Movant "does not claim that Darrell ... ha[s] any conflict of interest." Finding the testimony of Darrell to be more credible than that of Movant, the motion court held that Scott "did not work on the case nor did he negotiate the plea agreement;" that Scott "was not actively representing a competing interest;" and that Movant "has not proven that Scott['s] ... actions adversely affected [Darrell's] representation of Movant." This appeal by Movant followed.

In his sole point relied on, Movant maintains his rights were violated

in that Scott ... represented the State as a Greene County Assistant Prosecuting Attorney at the time the charges at issue were filed against [Movant] and he appeared for the State on at least one occasion; later, he appeared as defense counsel for [Movant] without receiving a waiver of this conflict. Conflict of Interest is presumed prejudicial to the rights of [Movant].

"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." Boyd v. State, 205 S.W.3d 334, 338 (Mo.App.2006); see Rule 24.035(k). "Findings and conclusions are clearly erroneous only if, after a review of the entire record, we are left with the `definite and firm impression that a mistake has been made.'" Morehead v. State, 145 S.W.3d 922, 927 (Mo.App.2004) (quoting Rice v. State, 988 S.W.2d 556, 558 (Mo.App.1999)). We presume that the motion court's findings of fact and conclusions of law are correct. Butts v. State, 85 S.W.3d 132, 134 (Mo.App.2002). "Movant bears the burden of proving, by a preponderance of the evidence, that the motion court erred." Huth v. State, 976 S.W.2d 514, 516 (Mo.App. 1998).

"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.'" Boyd, 205 S.W.3d at 338 (quoting 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.'" Boyd, 205 S.W.3d at 338 (quoting 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. (quoting Cupp, 935 S.W.2d at 368).

To prevail on a claim of ineffective assistance of counsel founded on a conflict of interest, the movant must show that an actual conflict of interest adversely affected counsel's performance. Helmig v. State, 42 S.W.3d 658, 680 (Mo.App.2001); see also Cuyler v. Sullivan, 446...

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