Gooden v. State, 18047
| Decision Date | 25 January 1993 |
| Docket Number | No. 18047,18047 |
| Parties | J.B. GOODEN, Jr., Movant-Appellant, v. STATE of Missouri, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
J. Gregory Mermelstein, Columbia, for movant-appellant.
William L. Webster, Atty. Gen., Hugh L. Marshall, Asst. Atty. Gen., Jefferson City, for defendant-respondent.
This is an appeal by J.B. Gooden, Jr. (movant) from the denial, after an evidentiary hearing, of a Rule 24.035 motion. This court affirms.
Movant pleaded guilty to the offense of murder in the first degree. He was sentenced, in accordance with a negotiated plea agreement, to confinement for life without possibility of probation or parole. Movant presents four points on appeal. The facts applicable to each point on appeal are set forth in the part of the opinion that discusses that point.
Movant's first point asserts that the motion court committed plain error in not vacating movant's conviction and sentence for the reason that the record of the guilty plea hearing in movant's criminal case does not establish that there was a factual basis for the guilty plea. See Rule 24.02(e). Alternatively, movant asserts that the motion court committed plain error in denying his Rule 24.035 motion in that his post-conviction counsel "failed to assert the lack of factual basis for [movant's] plea as a claim for postconviction relief in the motion court."
A Rule 24.035 motion must be verified. Rule 24.035(d) requires that the verification declare "that [a movant] has listed all grounds for relief known to him." The verification must acknowledge a movant's "understanding that he waives any ground for relief known to him that is not listed in the motion." Id. Both the pro se motion that movant filed and his amended motion contain such verifications.
Since movant did not assert a lack of factual basis for his plea of guilty as a ground relied upon in his pro se motion or in his amended motion, it cannot be considered. Hagen v. State, 766 S.W.2d 778, 780 (Mo.App.1989). Movant's appellate counsel accomplishes nothing by characterizing the ground as a claim of plain error. The plain error rule does not justify a review of every point that has not been properly preserved for appellate review. State v. Ervin, 835 S.W.2d 905, 920 (Mo. banc 1992).
The effort to "alternatively" argue that post-conviction counsel's failure to assert a "lack of factual basis for [movant's] plea as a claim for postconviction relief in the motion court" is likewise fruitless. It amounts to a veiled attack on the effectiveness of post-conviction counsel. "Allegations of ineffective assistance of post-conviction counsel are categorically unreviewable." Id. at 928-29, citing Pollard v. State, 807 S.W.2d 498, 502 (Mo. banc), cert. denied, 502 U.S. 943, 112 S.Ct. 383, 116 L.Ed.2d 334 (1991). Movant's first point is denied.
Movant's second point on appeal alleges ineffective assistance of counsel in the underlying criminal case. Movant contends that his plea of guilty was therefore rendered involuntary. He complains that his attorneys "failed to properly investigate and pursue to a conclusion" a motion to suppress evidence that was directed to statements movant made to law enforcement officers. He argues that law enforcement personnel did not "honor[ ] [his] invocation of his right to silence" thereby causing his statements to be the product of "psychological coercion." Movant also contends that the statements he made "were obtained as a result of an unlawful arrest."
Prior to movant's pleading guilty, his trial attorneys filed a motion in his behalf seeking "to suppress alleged incriminating written and oral statements which [movant] purportedly made." The motion to suppress asserted that statements movant made were involuntary; "were made without [movant] first being advised of his constitutional rights"; and were the product of an unlawful arrest. An evidentiary hearing on the motion to suppress was held. At its conclusion the trial judge, by docket entry in the criminal case file, "continued [the court's ruling] to a later date to allow [movant] to interview a possible witness." Further, the transcript of the hearing indicates that one of the exhibits that was admitted in evidence was a videotape recording of a statement made by movant. The trial judge anticipated viewing the videotape in his chambers "within the next day or so at [his] convenience."
The evidentiary hearing on movant's motion to suppress evidence was held August 13, 1990. On December 10, 1990, defendant pleaded guilty to murder in the first degree. There had been no ruling by the trial court on the motion to suppress evidence before movant pleaded guilty.
The fact that movant pleaded guilty in his criminal case affects what this court will assess in its review of the claim of ineffective assistance of counsel.
By pleading guilty, movant waived all errors except those which affect the voluntariness of the plea[ ] or the understanding with which the plea[ ] [was] given. Any claim of ineffective assistance of counsel is immaterial except to the extent it impinged upon the voluntariness and knowledge with which the plea of guilty was made. Freeman v. State, 691 S.W.2d 414, 415 (Mo.App.1985); Clark v. State, 690 S.W.2d 828, 829 (Mo.App.1985).
Jenkins v. State, 788 S.W.2d 536, 537 (Mo.App.1990).
Although movant now complains that the attorneys who represented him in his criminal case were ineffective, the record from his guilty plea hearing does not reflect that dissatisfaction. During the guilty plea proceeding, movant acknowledged that he was represented by two attorneys, Ms. Kraft and Mr. Wolfrum. Movant was asked if he was satisfied with the representation that they had provided him. He answered, "Yes." In response to questions from the trial court, movant advised the court that his attorneys had done the things that he wanted them to do and that there was nothing that he wanted his attorneys to do that they had not done.
After the prosecuting attorney made his recommendation to the trial court regarding punishment, the judge asked movant if the recommendation was the one that movant had expected the prosecuting attorney to make. Movant answered that it was. The judge then told movant that the court would follow the prosecutor's recommendation. The judge stated to movant, Movant told the judge that he wanted to plead guilty and not have a trial. The following colloquy then occurred:
The trial court accepted movant's plea of guilty, finding that it was made "freely and voluntarily and with a full understanding of [movant's] rights and of the consequences of that plea." The trial court then pronounced judgment and sentence. The trial court also advised movant that the court was required to examine him further regarding the assistance of counsel that he had received. Movant was placed under oath and asked a number of questions. The questions that the court asked at that time and the answers that movant gave included the following:
Q. Did your attorney do anything that you didn't want her to do before you pled guilty here today?
A. No, she didn't.
. . . . .
Q. Okay. Was the sentence imposed on you today the result of a plea-agreement or plea-bargain, Mr. Gooden?
A. Yes.
Q. Was the sentence that you received the sentence that you expected under the plea-agreement here today?
A. Yes.
. . . . .
Q. Are you satisfied with the services rendered to you by Miss Kraft as your attorney whether or not you're satisfied with the outcome of the case?
A. Yes.
Q. Is there anything else you would like to tell me about your attorneys' representation of you, Mr. Gooden, before I make a finding in this case?
A. No.
As stated in Cramlett v. State, 800 S.W.2d 813 (Mo.App.1990) Where a defendant repeatedly assures the court at his guilty-plea hearing that he is satisfied with his defense counsel's performance and believes counsel has done everything defendant requested, defendant cannot later claim the contrary.
When movant pleaded guilty, he was aware of all of the facts that he now asserts in claiming ineffective assistance of counsel in his criminal case. The finding of the motion court that his plea of guilty was voluntarily made is not clearly erroneous. Point II is denied.
For his third point on appeal, movant claims that he was denied effective assistance of counsel because his trial counsel in his criminal case "failed to seek a second mental evaluation ... to determine his competency to plead guilty or stand trial." Once again, movant attempts to alternatively assert a further claim of error, viz., that plain error occurred because his post-conviction counsel abandoned him by failing to present evidence regarding his "lack of mental capacity."
During the evidentiary hearing in the motion court, inquiry was made of one of the attorneys who represented movant in his criminal case about a possible second mental examination. The following questions were asked of the attorney and the following answers given:
Q. There was a mental evaluation requested in the case; is that correct?
A. Yes.
Q. And, in fact, in November of '90 there was a ...
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