Dowell v. State, WD 83511

• Court: Missouri Court of Appeals
• Writing for the Court: Gary D. Witt, Judge
• Citation: 615 S.W.3d 123
• Parties: Sebastian DOWELL, Appellant, v. STATE of Missouri, Respondent.
• Decision Date: 12 January 2021
• Docket Number: WD 83511

615 S.W.3d 123

Sebastian DOWELL, Appellant,
v.
STATE of Missouri, Respondent.

WD 83511

Missouri Court of Appeals, Western District.

OPINION FILED: January 12, 2021

Jeffrey C. Esparza, Kansas City, MO, for appellant.

Richard A. Starnes, Jefferson City, MO, for respondent.

Before Division Three: Edward R. Ardini, Jr., Presiding Judge, Alok Ahuja, Judge and Gary D. Witt, Judge

Gary D. Witt, Judge

Sebastian Dowell ("Dowell") appeals the judgment of the Circuit Court of Buchanan County, Missouri ("motion court"), denying,

615 S.W.3d 125

after an evidentiary hearing, his motion for post-conviction relief pursuant to Rule 24.035.¹ On appeal, Dowell claims that the motion court clearly erred in denying his Rule 24.035 motion because his plea counsel was constitutionally ineffective in retaining an expert who failed to perform a scientifically adequate psychological examination, and that, but for plea counsel's deficient performance, there is a reasonable probability that Dowell would have received a lesser sentence. We affirm the judgment of the motion court.

Factual and Procedural Background

The State charged Dowell with murder in the second degree, section 565.021,² for his participation in events occurring on or about October 16, 2016. Dowell and his girlfriend, Amanda Bennett ("Bennett"), murdered a young woman ("Victim") by strangling and stabbing her. Victim knew Bennett, but Dowell did not know her. Dowell was eighteen years old at the time the crime was committed. Dowell pleaded guilty, and in exchange, the State agreed not to seek any enhancements or elevated charges. Bennett also pleaded guilty. Dowell was sentenced to life in prison.

During his representation of Dowell, plea counsel retained Dr. Gregory Sisk ("Dr. Sisk"), a clinical psychologist with a Ph.D. Plea counsel has used Dr. Sisk on several of his cases, but at the motion hearing, he could not remember whether Dowell's case was the first time he used Dr. Sisk, or one of the subsequent times. Plea counsel testified at the motion hearing that he believed Dr. Sisk made a definitive diagnosis after he met with Dowell, but counsel did not remember exactly what the diagnosis was. Plea counsel did recall that Dr. Sisk mentioned that Dowell had some delusions but also that Dowell was malingering or exaggerating his symptoms. Plea counsel decided not to call Dr. Sisk at Dowell's sentencing hearing because Dr. Sisk told counsel he would not be a good witness for Dowell at sentencing.

Instead of calling an expert witness at Dowell's sentencing, he relied on the facts in the sentencing assessment report, which included that Bennett was very controlling, and that Dowell was more of a follower than the leader in that relationship. Counsel presented excerpts from letters from Bennett to Dowell while they were both in jail prior to the plea where she acknowledged that Dowell was reluctant to follow through on the murder and that she had fooled law enforcement into thinking that Dowell was evil and the primary person responsible for the murder. Counsel also stressed Dowell's young age and knew that the sentencing judge, who also heard the motion for post-conviction relief, had "an understanding and appreciation for the juvenile mind."³ The sentencing report mentioned Dowell's history with depression, an extensive account of his self-described mental symptoms, and information about his childhood including his diagnosis at the age of eight as having high functioning autism. Finally, counsel called Dowell's mother to testify at his sentencing hearing and produced a letter from Bennett that emphasized her domineering nature.

At the motion hearing, Dowell called Dr. Lisa Witcher, a licensed clinical forensic psychologist. Dr. Witcher did not specialize

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in juveniles. Dr. Witcher examined Dowell, reviewed some of his medical records, and reviewed the plea and sentencing transcripts. Dr. Witcher diagnosed Dowell as having Asperger's and schizoaffective disorder. Dr. Witcher noted that Dowell was taking medications in custody for his mental conditions but that he had stopped taking them in the past because he did not like the way they made him feel. Dr. Witcher stated that Dowell suffered from auditory hallucinations which he referred to as his alter ego. The court asked Dr. Witcher whether Dowell's conditions "would affect a person's understanding of the gravity of the harm," and whether "they would not understand that it was wrong" to take the actions Dowell took. Dr. Witcher answered, "And so they can appreciate that it's wrong,...