Graham v. State
| Decision Date | 30 December 1999 |
| Citation | 11 S.W.3d 807 |
| Parties | (Mo.App S.D. 1999) Patrick Dallas Graham, Movant-Appellant, v. State of Missouri, Respondent-Respondent. 22607 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Barton County, Hon. C. David Darnold, Judge
Counsel for Appellant: John William Simon
Counsel for Respondent: Stewart M. Freilich
Opinion Summary: None
Patrick Dallas Graham ("Movant") appeals the motion court's denial of his Rule 24.0351 motion without an evidentiary hearing and its order denying his amended motion for recusal of judge. He contends the motion court erred in denying his Rule 24.035 motion without an evidentiary hearing as his plea counsel rendered ineffective assistance by 1) failing to object to the participation of Movant's former attorney in the prosecution of the underlying case against him and 2) failing to move to suppress files and records seized from Movant's business, Conquest Labs, Inc. ("CLI"). Movant further asserts that the motion court erred in denying his amended motion for recusal of judge, due to concerns of impartiality, without first referring the issue to another judge.
Movant was charged by indictment with ten counts of securities fraud in violation of section 409.1012 and ten counts of selling unregistered securities in violation of section 409.301 in connection with the sale of stock in CLI. An information was filed on April 21, 1997, and on June 23, 1997, the State filed a first-amended information as part of a plea bargain reducing the charges against Movant to three counts of securities fraud. Movant pled guilty to the three-count, first amended information on June 23, 1997, and was sentenced to concurrent ten-year terms on Counts I and II and a consecutive five-year term on Count III, for a total of fifteen years. Movant, thereafter, filed a request for recusal of judge and pursuant to Rule 24.035 filed a motion, which was later amended, seeking to vacate his judgment and sentence. On June 15, 1998, the motion court dismissed Movant's Rule 24.035 motion without an evidentiary hearing and entered an order denying Movant's request for recusal of judge. Movant appeals.
In his first point on appeal, Movant asserts that the motion court clearly erred in denying his Rule 24.035 motion without an evidentiary hearing. In support, Movant claims plea counsel failed to attempt to disqualify Barton County Prosecutor Steven Kaderly ("Kaderly") even though he informed plea counsel that Kaderly had previously assisted him in CLI's business dealings and was a material witness to the events that were the basis of the charges. Movant contends that as a result of such ineffective assistance of counsel he was intimidated or coerced into entering a plea of guilty.
Appellate review of the denial of a Rule 24.035 motion for post-conviction relief is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 24.035(k); Leisure v. State, 828 S.W.2d 872, 874 (Mo. banc 1992), cert. denied, 506 U.S. 923, 113 S. Ct. 343, 121 L.Ed.2d 259 (1992). A motion court's findings are clearly erroneous if, after review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made. Id. at 874.
A criminal defendant seeking post-conviction relief based on ineffective assistance of counsel must demonstrate that his counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under substantially similar circumstances and that he was thereby prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Milner v. State, 968 S.W.2d 229, 230 (Mo.App. S.D. 1998). Because Movant's conviction resulted from a guilty plea, a claim of ineffective assistance of counsel is immaterial except to the extent that it infringes upon the voluntariness and knowledge with which the guilty plea was made. Wilkins v. State, 802 S.W.2d 491, 497 (Mo. banc 1991), cert. denied, 502 U.S. 841, 112 S.Ct. 131, 116 L.Ed.2d 98 (1991); Milner, 968 S.W.2d at 230.
When reviewing an ineffective assistance of counsel claim, there is a strong presumption that counsel's conduct was reasonable under the circumstances. Bauer v. State, 949 S.W.2d 248, 249 (Mo.App. S.D. 1997). In order to overcome such a presumption, a movant must establish a serious dereliction of duty by plea counsel that substantially affected his rights. Bundy v. State, 965 S.W.2d 402, 404 (Mo.App. S.D. 1998). Movant must also demonstrate to "a reasonable probability that, but for the errors or ineffectiveness of counsel, he would not have pleaded guilty and would have insisted on a trial." Trehan v. State, 872 S.W.2d 156, 158 (Mo.App. S.D. 1994); see also Hill v. Lockhart, 474 U.S. 52, 57, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 207 (1985). A movant must prove both deficient performance and resulting prejudice; however, a court may dispose of a claim due to lack of sufficient prejudice without first considering counsel's performance. See Strickland, 466 U.S. at 697.
To warrant an evidentiary hearing, a movant's motion must meet three requirements: 1) the motion must allege facts, not conclusions, warranting relief; 2) the facts alleged must not be refuted by the files and records in the case; and 3) the matters complained of must have resulted in prejudice to the movant. State v. Blankenship, 830 S.W.2d 1, 16 (Mo. banc 1992); McClennan v. State, 967 S.W.2d 706, 708 (Mo.App. S.D. 1998).
In the instant case, the motion court concluded that plea counsel was not ineffective for failing to object to Kaderly's participation, that Movant failed to demonstrate prejudice, and that Movant's claim was refuted by the record. It further found, based on the record, that Movant pled guilty to get the benefit of a plea bargain, because he was guilty. In reaching its conclusion, the motion court focused on several lines of questioning conducted by the trial judge at the plea hearing. At the hearing, the trial court specifically inquired:
Later, during the hearing the following exchange occurred:
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