Dorsey v. State

• Decision Date: 29 August 2003
• Docket Number: No. 25312.,25312.
• Citation: 113 S.W.3d 311
• Parties: Tommy DORSEY, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.
• Court: Missouri Court of Appeals

113 S.W.3d 311

Tommy DORSEY, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent.

No. 25312.

Missouri Court of Appeals, Southern District, Division One.

August 29, 2003.

Ellen J. Flottman, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Assistant Attorney General, Jefferson City, for respondent.

PHILLIP R. GARRISON, Judge.

Tommy Dorsey ("Dorsey") appeals from the motion court's denial, without an evidentiary hearing, of his Rule 29.15¹ motion to vacate, set aside, or correct his conviction of second-degree assault and the resulting sentence of nine years imprisonment. He alleges in three points that the motion court erred in denying the motion because he alleged facts therein which, if proved, would warrant relief in that he received ineffective assistance of counsel in derogation of his constitutional rights. We disagree and affirm the motion court's judgment.

Early in the morning of January 16, 2000, Dorsey entered the Express Lane convenience store at 715 West College in Springfield, Missouri ("the store") to purchase cigarettes and pre-pay for gasoline. In the store at the time were the clerk and Karl Leigh ("Leigh"), a professional truck driver. As Leigh and the clerk chatted, Dorsey approached and asked what was the price of a pack of cigarettes. In response to the announced price, Dorsey exclaimed, "Well, that's highway robbery." Leigh took exception to that remark, stating that the clerk probably did not appreciate any use of the word "robbery," given that the store had been robbed several times recently. Dorsey began cursing at Leigh and told him he should stay out of his business.

After Dorsey finished paying for the cigarettes and gas, he walked past Leigh on the way out the door and struck his shoulder with his fist. This resulted in a struggle that left Dorsey pinned to the ground by Leigh, who let Dorsey get up when Dorsey promised to leave the store peacefully if he was allowed to do so. Dorsey left the store and pumped the gas for which he had prepaid. He then returned to the entrance to the store to ask for the name of the store's manager, claiming that he intended to go to the hospital and sue the store for any medical bills arising from injuries sustained during the previous scuffle. The clerk called the police while Leigh blocked Dorsey's attempts to enter the store.

Leigh then left the store to confront Dorsey and another fight erupted between the two. Leigh heard a noise like "keys by [his] ear" before noticing he was bleeding from severe cuts to his cheek, neck, and arm. The cuts were apparently caused by a small pocketknife wielded by Dorsey and attached to a set of keys he was "swinging" in the course of his fight with Leigh. Leigh backed away from Dorsey and exclaimed, "Man, you cut me." When Dorsey appeared to be attempting to escape, Leigh advanced toward him again to restrain him. When the police arrived, Dorsey was arrested and the knife and keys were confiscated.

Dorsey was charged by information as a prior, persistent, and dangerous offender with assault in the first degree, a violation of Section 565.050.² On October 30, 2000, Dorsey appeared before the trial court and indicated, in person and in writing, that he wished to waive a jury trial. After an examination by the court, the court found that Dorsey had freely, voluntarily and knowingly waived his right to trial by jury. Dorsey indicated he wished to withdraw his waiver of a jury trial at the beginning of a bench trial that was held on April 20 and April 23, 2001. Dorsey expressed displeasure with his trial counsel and told the trial court that his prior waiver of a jury trial was tainted in that his counsel had convinced him to do so by telling him that the jury pool in Greene County was racist and this would prevent Dorsey, an African-American, from receiving a fair trial. After some consideration of Dorsey's request, the trial court denied it and the bench trial proceeded. At the close of evidence, Dorsey was found guilty of the lesser-included offense of assault in the second degree. He was sentenced at a later hearing to nine years imprisonment as a prior, persistent, and dangerous offender.

On March 29, 2002, we affirmed the trial court's judgment and sentence by summary order pursuant to Rule 30.25(b). State v. Dorsey, No. 24331 (Mo.App.S.D. March 29, 2002). On May 14, 2002, Dorsey filed a pro se motion for post-conviction relief pursuant to Rule 29.15, which was amended by Dorsey's attorney on August 29, 2002. On November 19, 2002, the motion court denied the motion without an evidentiary hearing. This appeal follows.

Our review of the denial of a Rule 29.15 motion is limited to a determination whether the findings of fact and conclusions of law of the motion court are "clearly erroneous." Rule 29.15(k); State v. Simmons, 944 S.W.2d 165, 181 (Mo. banc), cert denied, 522 U.S. 953, 118 S.Ct. 376, 139 L.Ed.2d 293 (1997). The motion court's findings are clearly erroneous only if, upon our review of the entire record, we are left with the firm impression that a mistake has been made. Knese v. State, 85 S.W.3d 628, 631 (Mo. banc 2002); Barnett v. State, 99 S.W.3d 21, 23 (Mo.App. S.D.2003).

Each of Dorsey's three points on appeal alleges, in part, that he received ineffective assistance of counsel. Such claims are subject to the two-prong test announced in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). First, it must be shown that the appellant's trial counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances. Id. at 687, 104 S.Ct. 2052; see also Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987). Second, if the performance of appellant's trial counsel was deficient, it must also be shown that the appellant was prejudiced by the deficiency. Strickland at 689, 104 S.Ct. 2052; Sanders at 857. This "prejudice" prong of the test is satisfied when there is a reasonable probability that, but for counsel's deficient performance, the result of the trial would have been different. Strickland at 694, 104 S.Ct. 2052. "Reasonable probability" is the "minimum standard in undermining confidence in the outcome of the case." Moore v. State, 827 S.W.2d 213, 215 (Mo. banc 1992). If the appellant fails to satisfy one of the two prongs of the Strickland test, we are not compelled to address the other prong and the claim of ineffective assistance must fail. State v. Nunley, 980 S.W.2d 290, 292 (Mo. banc 1998), cert. denied, 526 U.S. 1100, 119 S.Ct. 1580, 143 L.Ed.2d 674 (1999).

In addition to the claim that Dorsey received ineffective assistance of counsel, a second common element of each of his three points on appeal is that the motion court erred in denying his Rule 29.15 motion without an evidentiary hearing pursuant to Rule 29.15(h) because the motion pleaded facts which, if true, would warrant relief and which are not refuted by the record. Indeed, to be entitled to relief, a Rule 29.15 movant must allege facts, not conclusions, which, if true, would warrant relief. State v. Starks, 856 S.W.2d 334, 336 (Mo. banc 1993); Rollins v. State, 974 S.W.2d 593, 595 (Mo.App. W.D.1998); Rule 29.15(h). These allegations of fact must not be refuted by the record and matters complained of must have resulted in prejudice to the movant. Starks at 336.

In Dorsey's first point, he alleges the motion court clearly erred in denying the motion without an evidentiary hearing because he received ineffective assistance of trial counsel in that his trial counsel "unreasonably advised [Dorsey] to waive a jury because he said that juries in Greene County were racist." Dorsey claims that "[h]ad counsel not given [him] this advice, [Dorsey] would have proceeded to a jury trial and there is a reasonable probability that the result would have been different."

On October 30, 2000, Dorsey appeared before the trial court and waived, in person and in writing, his right to a jury trial. In affirming his conviction on direct appeal, we found Dorsey's waiver to be voluntary. State v. Dorsey. Notwithstanding that holding, Dorsey now claims that the record does not refute his claim of ineffective assistance of counsel in this regard because on the day of trial, Dorsey requested that he be allowed to withdraw his waiver of a jury because he had determined the prior renunciation of that right was tainted by the advice given him by his trial counsel. Specifically, Dorsey expressed new skepticism with his attorney's advice that Dorsey "could [not] get a fair trial to [sic] this community ... because of the ratio of the people." Dorsey told the trial court that "since then I have talked to, you know, other people, and they recommended that I have a jury trial because the community would be able to pick a jury that would find me not guilty."

We disagree with Dorsey's assertion that his trial counsel's advice to waive a jury trial due to the racial makeup of the jury pool rises to the level of deficient performance under a Strickland analysis. "In evaluating the performance of counsel under the first prong of the Strickland test, we note that actions by counsel that constitute sound trial strategy are not grounds for ineffective assistance claims. There is a presumption that any challenged action was sound trial strategy and that counsel rendered adequate assistance and made all significant decisions in the exercise of professional judgment." State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998) (internal citations omitted); see Strickland at 689-90, 104 S.Ct. 2052.

The western district of this court has held that a trial attorney's advice to an African-American client charged with sodomy that he waive jury trial to avoid the risk of a harsher jury sentence because his victim was a minor and white constituted valid trial strategy which did not rise to the level of deficient performance. Smith v. State, ...