Giammanco v. State

• Decision Date: 31 December 2013
• Docket Number: No. ED 99209.,ED 99209.
• Parties: Donald K. GIAMMANCO, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

416 S.W.3d 833

Donald K. GIAMMANCO, Appellant,
v.
STATE of Missouri, Respondent.

No. ED 99209.

Missouri Court of Appeals,
Eastern District,
Division Four.

Dec. 31, 2013.

[416 S.W.3d 836]

Jessica Hathaway, Assistant Public Defender, St. Louis, MO, for appellant.

Richard Starnes, Assistant Attorney General, Jefferson City, MO, for respondent.

PATRICIA L. COHEN, Judge.
Introduction

Donald Giammanco (Movant) appeals from the judgment of the Circuit Court of St. Louis County denying his Rule 29.15 motion. Movant asserts the motion court clearly erred in denying without an evidentiary hearing his claims that trial counsel ¹ provided ineffective assistance by failing to file motions to dismiss the case based on violations of Movant's right to a speedy trial and right to be free from double jeopardy. Movant also contends the motion court clearly erred in denying without an evidentiary hearing his claim that he received ineffective assistance based on trial counsels' alleged conflict of interest. We affirm.

Factual and Procedural Background

Viewed in the light most favorable to the verdict, the evidence at trial revealed the following: Between February 1, 2008 and September 18, 2008, Defendant entered seven banks in St. Louis County and handed the tellers an envelope and a note instructing the tellers to remove the money from the top and bottom cash drawers, place the money and note in the envelope, and exclude bait money, dye packs, or tracking devices. The notes also variously warned the tellers to comply with Movant's demands so that “no one would get hurt,” everyone would “go home safe,” or everyone would “get out alive.” After handing the tellers the envelope and note, Movant placed and maintained his right hand inside of his jacket or jacket pocket, leading the tellers to believe that he was armed with a dangerous weapon. After filling the envelopes with money, the tellers returned the envelopes to Movant, and Movant exited the banks.

Police officers arrested Movant on September 18, 2008, shortly after he robbed the Commerce Bank at 487 Old Smizer Mill Road. On that day, Justin Nicholas, a

[416 S.W.3d 837]

teller, read Movant's note and placed approximately $12,000 in Movant's envelope, along with bait money and an electronic tracker. Patrick Higgins, a bank manager who observed the exchange and recognized Movant from news coverage of the related bank robberies, followed Movant out of the bank, recorded his license plate number, and provided the information to the police. Within minutes, police officers stopped and arrested Movant and seized from Movant's vehicle a white envelope containing U.S. currency, bait money, and a tracking device; a note demanding money; and Movant's jacket. Approximately thirty minutes later, Mr. Nicholas identified Movant as the man who presented him the note and took the money from the bank.

A St. Louis County police officer transported Movant to police headquarters in Clayton, where police officers from various municipalities and an FBI agent interviewed Movant. Movant admitted to robbing seven banks in St. Louis County.²

On October 22, 2008, the State filed an indictment charging Movant with four counts of first-degree robbery.³ Defense counsel entered an appearance on October 29, 2008, and on November 12, the trial court continued the matter to February 6, 2009 “by consent, pending federal case.” On February 11, 2009, the trial court again continued the case “pending outcome of federal case.” On April 17, 2009, the trial court continued the case until July 17, 2009 for a plea or selection of a trial date.

On June 5, 2009, Movant pleaded guilty in the U.S. District Court, Eastern District of Missouri, to twelve counts of bank robbery, which included the seven offenses at issue in the instant case. On July 17, 2009, the trial court continued the case to August 14, 2009,⁴ on which date the court scheduled trial for December 14, 2009. On November 17, 2009, the trial court informed the parties that, due to the court's scheduling conflict, it was continuing the case and resetting the trial date “pending case reassignment to another division.” The following day, the case was reassigned and, on December 11, 2009, the trial court held a pre-trial conference and set the case for trial on August 9, 2010.

On January 11, 2010, Movant filed a pro se motion for speedy trial.⁵ At a pre-trial conference on April 23, 2010, the trial court ordered: “Cause remains set for trial 8–9–10.” Movant filed a pro se request for dismissal of cause for violation of double jeopardy on June 4, 2010.

In a pre-trial conference on August 9, 2010, the first day of trial, Movant moved to terminate counsel “for many reasons, conflict of interest, differences in strategy to proceed forward, lack of communication, lack of preparedness, and many other things....” The trial court denied the motion on the grounds that it was untimely filed. Movant then moved for a continuance,

[416 S.W.3d 838]

and the trial court denied the motion. Movant asserted that the defense needed time to depose witnesses, including the victim bank tellers and police officers and detectives who investigated the case, and alleged “I've asked [trial counsel] for this numerous times and they just say, no, I'm not going to do it.” Trial counsel responded, “Judge, we haven't deposed witnesses because we didn't feel it was appropriate as far as our strategy in the case.” The trial court then considered and denied Movant's pro se motion to dismiss based on violation of the right to speedy trial.

At trial, the State called as witnesses the seven victim bank tellers; Mr. Higgins, the manager from Commerce Bank on Old Smizer Mill Road; and six police officers and detectives involved in the investigation. Movant, defending on the theory that he did not commit first-degree robbery because he did not threaten to use a deadly weapon, testified on his own behalf. Movant admitted to entering the seven banks and demanding money, but he denied intending to create the impression that he possessed a dangerous weapon.

The jury found Movant guilty of seven counts of first-degree robbery. The trial court sentenced Movant to consecutive terms of ten years' imprisonment on counts one and seven, to run concurrently with fifteen-year-sentences on counts two through six and Movant's federal sentence of seventy-six months imprisonment, for a total sentence of twenty years' imprisonment. This court affirmed Movant's conviction and sentence. State v. Giammanco, 351 S.W.3d 247 (Mo.App.E.D.2011).

Movant filed a Rule 29.15 motion for post-conviction relief, which counsel later amended. The motion court found that the record refuted Movant's claims and denied the Rule 29.15 motion without an evidentiary hearing. Movant appeals.

Standard of Review

Our review of the denial of a 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. Rule 29.15(k). Findings and conclusions are clearly erroneous if, after reviewing the entire record, we are left with the definite and firm impression that a mistake has been made. McLaughlin v. State, 378 S.W.3d 328, 337 (Mo. banc 2012). In making this determination, we presume that the motion court's findings are correct. Id. at 336–37.

Discussion

A movant bears a heavy burden when attempting to show that counsel was ineffective. State v. Powell 798 S.W.2d 709, 717 (Mo. banc 1990). To prevail on a claim of ineffective assistance of counsel, a movant must show by a preponderance of the evidence that: (1) counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances; and (2) counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A movant establishes prejudice by demonstrating that but for counsel's poor performance, there is a reasonable probability that the outcome of the trial would have been different. Id. at 694, 104 S.Ct. 2052. A movant must satisfy both the performance prong and prejudice prong of the ineffective assistance of counsel test, and if a movant fails to satisfy one prong, we need not consider the other. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987).

To be entitled to an evidentiary hearing on a motion for post-conviction relief, a movant must show that: (1) he alleged facts, not conclusions, warranting relief; (2) the facts alleged raise matters not refuted by the record; and (3) the

[416 S.W.3d 839]

matters complained of resulted in prejudice to him. Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009). An evidentiary hearing will not be granted when the files and records of the case conclusively show that the movant is not entitled to relief. Mo. Sup. Court Rule 29.15(h).

1. Alleged Violation of the Right to a Speedy Trial

In his first point on appeal, Movant claims the motion court clearly erred in denying without a hearing his claim that trial counsel were ineffective in failing to move to dismiss the charges based on a violation of Movant's right to a speedy trial. More specifically, Movant contends that he was not responsible for the pretrial delay, he asserted his right to a speedy trial, and the delay prejudiced his case because he pleaded guilty to the federal charges prior to trial and the State used the guilty plea to refute Movant's defense. The State counters that the motion court properly denied Movant's claim without a hearing because Movant failed to plead facts not refuted by the record demonstrating a violation of his right to a speedy trial or that counsels' decision not to seek a speedy trial was not a matter of reasonable trial strategy.

“The right to a speedy trial guarantees to a criminal defendant that the State will move fast enough to assure the defendant of the early and proper disposition of the charges against him.” State v. Bell, 66 S.W.3d 157, 164...