Dodd v. State
| Decision Date | 26 August 2011 |
| Docket Number | No. SD 30849.,SD 30849. |
| Citation | 347 S.W.3d 659 |
| Parties | Herbert Alan DODD, Jr., Movant–Appellant,v.STATE of Missouri, Respondent–Respondent. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
Kent Denzel, Columbia, MO, for Appellant.Chris Koster, Attorney General, and, Mary H. Moore, Assistant Attorney General, Jefferson City, MO, for Respondent.DON E. BURRELL, Presiding Judge.
Herbert Alan Dodd, Jr. (“Movant”) appeals the denial after an evidentiary hearing of his amended Rule 24.035 1 motion (“motion”) seeking to vacate his guilty plea to a reduced charge of second-degree murder on the grounds that his plea counsel incorrectly advised him that certain evidence would not be admissible at his trial. Movant claims this improper advice rendered his guilty plea unknowing and involuntary and that, absent that ineffective assistance of counsel, Movant would not have pleaded guilty but would have insisted on going to trial on the State's original charge of murder in the first degree.2 Because the motion court did not clearly err in finding that Movant's guilty plea was both knowing and voluntary, we affirm its denial of post-conviction relief.
Background
Movant was originally charged with the class A felony of murder in the first degree for knowingly, after deliberation, causing the death of William E. Hammond (“Victim”) “by beating him with a base ball [sic] bat[ ]” on or about December 4, 2000. See § 565.020.3 The punishment for first-degree murder is “either death or imprisonment for life without eligibility for probation or parole, or release except by act of the governor[.]” § 565.020.1(1).
On July 18, 2005, with a group of 150 venirepersons standing by, Movant, pursuant to a negotiated plea agreement, entered a plea of guilty to the reduced charge of murder in the second degree. See § 565.021. The range of punishment for murder in the second degree is “a term of years not less than ten years and not to exceed thirty years, or life imprisonment.” § 558.011. Unlike a person convicted of first-degree murder, a person convicted of second-degree murder remains eligible for probation or parole. Id.; § 565.020. The amended information alleged that Movant, on or about December 4, 2000, “either acting alone or knowingly in concert with others ... knowingly caused the death of [Victim] by beating him with a base ball [sic] bat.”
The Plea Hearing
In support of his plea, Movant executed a written “PETITION TO ENTER PLEA OF GUILTY[.]” That petition was received into evidence by the plea court. In his petition, Movant, among other things, represented to the plea court that he was represented by a lawyer, that he had received a copy of the information (“Information”), that he had read the Information, that he had discussed it with his lawyer, and that he “fully underst[ood] every charge made against [him].” Movant represented in his petition that on December 4, 2000, he went to Victim's home to commit a burglary and that in the commission of the burglary, Victim “died as the result of being beaten with a bat.” Movant represented in the petition that the only promises made to him in exchange for his guilty plea was that he would receive a sentence of “life in prison (with the possibility of parole) [ ] to the amended charge of murder in the second degree,” and the prosecutor would “file no other charges against [him].”
Other relevant portions of Movant's written representations included:
14. Neither I, nor any of my friends or loved ones, has been mistreated, threatened, coerced, or forced in any manner by anyone to get me to plead guilty, nor were there any promises, inducements, or representations made except as set forth in paragraph 13 above
[which stated that the charge would be
amended to second-degree murder, the State would agree to file no other charges against Movant, and Movant would receive life in prison with the possibility of parole].
15. I believe that my lawyer has done all that anyone could do to counsel and assist me, and I AM SATISFIED WITH THE ADVICE AND HELP HE HAS GIVEN ME.
16. I know that the [c]ourt will not permit anyone to plead GUILTY who maintains he is entirely innocent, and with that in mind and because I AM GUILTY and do not believe that I could be found innocent by a jury, I wish to plead GUILTY and respectfully reques [sic] the [c]ourt to accept my PLEA OF GUILTY.
17. My mind is clear, and I am not mentally ill. I am not under the influence of alcohol or drugs, and I am not under a doctor's care. The only drugs, medicines, or pills that I took within the past seven (7) days are: NONE
....
19. I OFFER MY PLEA OF GUILTY FREELY AND VOLUNTARILY AND OF MY OWN ACCORD AND WIT [sic] FULL UNDERSTANDING OF ALL THE MATTERS SET FORTH IN THE INFORMATION AND IN THIS PETITION[.]
20. I have read, and my attorney has explained to me, this Petition to Enter Plea of Guilty, this 18th day of July, 2005.
[ Movant's signature ]
Defendant
(All capitalization as in original.)
In that same document, Movant's plea attorney certified that he had explained the allegations in the Information to Movant, that he had fully investigated the circumstances of Movant's case, that he believed all of Movant's representations contained in the plea petition were true, and that he believed Movant's decision to plead guilty was “voluntarily and understandingly made.”
At the plea hearing, in Movant's presence, the plea court read aloud the amended information charging Movant with second-degree murder. In reciting for the plea court a factual basis for Movant's guilty plea, the prosecutor stated the following. Victim was in a relationship with the mother of Movant's two children. Movant, with either a motive to kill or rob Victim, went to Victim's home with some other accomplices. Finding it empty, Movant went inside and began burglarizing the residence. The prosecutor then
At some point during their efforts to rob [sic] the residence, [Victim] returned home and interrupted their robbery [sic], and then that [Movant] and/or the accomplices beat him violently with a baseball bat about the head, causing his death; that [Movant] ultimately took from the house numerous items that were stolen from [Victim] or his children that lived in the house, and those items were ultimately found inside of [Movant's] trailer.
[Movant] was also—there was a beer bottle that was left behind at the crime scene. Apparently [Movant] drank that beer bottle, left that beer bottle at the crime scene, and there was a mixture of DNA on that beer bottle that consisted of [Victim's] DNA and [Movant's] DNA, was found there at the crime scene where [Victim] was beaten to death.
[Movant] or—and/or the accomplices also drove off in a car that was owned by [Victim], and drove it off into the woods a short distance away from the home. And around that car was found three separate cigarette butts, each of those cigarette butts contained DNA that was consistent, again, with [Movant's] DNA.
After this recitation by the prosecutor, Movant was placed under oath and testified as follows in response to questions from his attorney.
Q. [Movant], I'm going to hand you what's been marked as Defendant's Exhibit 1. Do you recognize that to be a Petition to Enter Plea of Guilty?
A. Yes, sir.
Q. And that is a petition form that you and I have looked at this morning; is that correct?
A. Yes, sir.
Q. The exhibit has some blanks on it and some spaces in which handwriting appears. In each of those spaces, is that either your or my handwriting?
A. Yes, sir.
Movant then acknowledged that he and his attorney had each signed the plea petition in each other's presence. Movant testified that he had read the entire document and that its contents were all “true, accurate, and complete [.]” He testified that he had originally been charged with first-degree murder and that although the State had waived the death penalty, Movant would have received life without the possibility of parole if he were convicted of that crime. Movant testified that the reduction in the possible punishment played a role in his decision to plead guilty. Movant testified that he heard the prosecutor's statements to the court about what the State believed the evidence would be at trial and he acknowledged that “each of those things are true[.]”
Movant also swore that he and his plea counsel had “talked about a number of defenses over the course of [Movant's various attorneys'] representation” and that he had no questions about those possible defenses. Finally, Movant provided the following testimony about his state-of-mind.
Q. All right. And you've had no drugs or medicines of any kind in the last seven days?
A. No, sir.
Q. Alcohol or anything of that sort?
A. No, sir.
Q. Okay. Has anybody threatened, or coerced you, or in any way tried to persuade you or any member of your family or your friends to enter this plea of guilty in any manner that you would consider, you know, wrong, improper, or any of those kinds of influences?
A. No, sir.
Q. Is this plea of guilty entered by you freely and voluntarily and of your own accord?
A. Yes.
The plea court accepted Movant's guilty plea to second-degree murder, finding it to have been knowingly and voluntarily made, and later sentenced Movant in accordance with the plea agreement to life in prison with the possibility of parole.
The Motion Hearing
At Movant's request, the motion court took judicial notice of the contents of Movant's underlying criminal file. Plea counsel testified at the hearing that Christopher Hammond, Victim's son (“Son”), was also a suspect in Victim's murder and had taken a polygraph test. “Trooper Brannon” had administered that polygraph test, and his impression was that Son had been “deceptive” during the test.
Motion counsel then asked plea counsel to read out loud a portion of Trooper Brannon's written report.
Q. That paragraph that I am bracketing in particular, would you read that, please?
A. Sure. Trooper Brannon writes, apparently [So...
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Martin v. State, SD 35498
...‘a voluntary choice of alternatives available to [her] at the time, according to [her] own best interests.’ " Dodd v. State , 347 S.W.3d 659, 665 (Mo. App. S.D. 2011) (quoting Turner v. State , 755 S.W.2d 409, 410 (Mo. App. E.D. 1988) ...
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Turner v. Stancil, Case No. 4:17CV1249 RLW
...court believed this testimony and found Turner's later post-conviction testimony to the contrary not credible. See [Dodd v. State, 347 S.W.3d 659, 665 (Mo. Ct. App. 2011)]. It is well settled that "[a] claim that counsel was ineffective for failing to file and pursue a motion to suppress is......