Jackson v. State

• Decision Date: 12 July 2022
• Docket Number: WD 84387
• Citation: 647 S.W.3d 881
• Parties: Antonio C. JACKSON, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

647 S.W.3d 881

Antonio C. JACKSON, Appellant,

v.STATE of Missouri, Respondent.

WD 84387

Missouri Court of Appeals, Western District.

OPINION FILED: July 12, 2022

Keith Patrick O'Connor, Kansas City, MO, for appellant.

Austin Christopher Davis, Jefferson City, MO, for respondent.

Before Division Three: Gary D. Witt, Presiding Judge, Anthony Rex Gabbert, Judge and W. Douglas Thomson, Judge

Gary D. Witt, Judge

Antonio Jackson ("Jackson") appeals the judgment of the Circuit Court of Jackson County ("motion court"), following an evidentiary hearing, denying Jackson's amended motion to vacate, set aside, or correct the judgment and sentence, pursuant to Rule 29.15.¹ On appeal, Jackson argues the motion court erred in denying his amended motion because (1) Jackson's trial counsel was ineffective in advising him to waive a jury trial due to potential federal charges, which rendered Jackson's waiver not knowing, voluntary, and intelligent; and (2) Jackson's trial counsel was ineffective in failing to request Dr. Witcher perform a complete mental evaluation of Jackson and then failing to call Dr. Witcher as a witness during sentencing to explain how Jackson's intellectual disability influenced his criminality. Finding no error, we affirm.

Factual Background

Jackson was convicted, following a bench trial, for the events that occurred on or about December 3, 2011. The evidence presented at the bench trial showed that Jackson approached two women at gunpoint near their vehicle in downtown Kansas City around midnight as they were leaving a bar. Jackson took the victims’ purses, and when he saw they were empty, he ordered the victims to drive him to an ATM. Jackson sat in the backseat as one victim drove and the other victim sat in the front seat. As they began to drive, a friend of the victims pulled up next to them and sensed something was wrong. The friend followed the victims in his vehicle and called police. Jackson ordered the victims to take him to an ATM on 31st street, which was about twenty blocks from where he initially encountered them. The victim driving the car retrieved three hundred dollars from the ATM and handed it to Jackson. Jackson ordered the victims to bring him back downtown to the location where he initially approached them. While driving toward downtown, police officers surrounded the victims’ car and arrested Jackson.

Jackson was charged by indictment with robbery in the first degree, two counts of kidnapping and three counts of armed criminal action. Jackson was appointed counsel. Shortly before the case was set for jury trial, the State offered that if Jackson waived a jury trial and agreed to a bench trial, the State would agree, if Jackson were convicted at trial, to a maximum sentence of 25 years in the Department of Corrections. Trial counsel advised Jackson to waive a jury trial pursuant to this agreement. Jackson signed a written waiver of a jury trial. Trial counsel also stated on the record that the agreement to waive a jury trial was "in conjunction with an agreement with the State that Mr. Jackson would only be subject to a range of sentencing up to 25 years and no more at the time of sentencing, if he were to be convicted." The trial judge stated, "I will go ahead then and sign off on this waiver and we will proceed with a bench trial."

Following the bench trial, Jackson was convicted of all six counts. The trial court found Jackson to be a prior offender and a prior/persistent offender pursuant to sections 558.016² and 557.036. The trial court sentenced Jackson to concurrent terms of imprisonment of twenty years for robbery, fifteen years for each count of kidnapping, and twenty years for each count of armed criminal action. The judgment of conviction was affirmed by this Court in a per curiam order. State v. Jackson , 470 S.W.3d 387 (Mo. App. W.D. 2015).

Jackson filed a timely motion to vacate, set aside, or correct the judgment under Rule 29.15, and appointed counsel timely filed an amended motion. The motion court held an evidentiary hearing, and Jackson's trial counsel was the sole witness. The motion court issued findings of fact, conclusions of law, and judgment denying Jackson's amended motion. This appeal follows.

Standard of Review

Appellate review of the motion court's judgment under Rule 29.15 is limited to a determination of whether the findings of fact and conclusions of law are clearly erroneous. Price v. State , 422 S.W.3d 292, 294 (Mo. banc 2014) ; Rule 29.15(k). "Findings and conclusions are clearly erroneous only if a full review of the record definitely and firmly reveals that a mistake has been made." King v. State , 638 S.W.3d 113, 117 (Mo. App. W.D. 2022) (quoting Morrow v. State , 21 S.W.3d 819, 822 (Mo. banc 2000) ). "It is incumbent upon the movant in a post-conviction motion to prove his claims for relief by a preponderance of the evidence." Dishmon v. State , 248 S.W.3d 656, 660 (Mo. App. S.D. 2008) ; Rule 29.15(i).

Analysis

"To be entitled to post-conviction relief for ineffective assistance of counsel, the movant must satisfy the two-pronged Strickland test." Jindra v. State , 580 S.W.3d 635, 641 (Mo. App. W.D. 2019) ; Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "First, the movant must show counsel failed to perform to the degree of skill, care, and diligence that a reasonably competent attorney would under similar circumstances." Lindsey v. State , 633 S.W.3d 547, 551 (Mo. App. W.D. 2021). This requires that the movant show that counsel's representation "fell below an objective standard of reasonableness." Jindra , 580 S.W.3d at 641 ; Strickland , 466 U.S. at 688, 104 S.Ct. 2052. The movant must then show that he was prejudiced by this failure. Jindra , 580 S.W.3d at 641. "Prejudice occurs when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. (quoting Johnson v. State , 406 S.W.3d 892, 899 (Mo. banc 2013) ). "A movant must overcome the strong presumption that counsel's conduct was reasonable and effective." Id. "To overcome this presumption, a movant must identify specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance." Id. (internal quotations omitted). "Trial strategy decisions may be a basis for ineffective counsel only if that decision was unreasonable." Id.

Point I

Jackson argues trial counsel's conduct fell below an objective level of reasonableness because he recommended Jackson waive a jury trial due to potential federal charges. Both the United States Constitution and the Missouri Constitution guarantee a defendant in a criminal case the right to a jury trial. U.S. Const. Amend. VI ; Mo. Const. Art. I, section 22(a). "[I]n every criminal case any defendant may, with the assent of the court, waive a jury trial and submit the trial of such case to the court, whose finding shall have the force and effect of a verdict of a jury." Mo. Const. Art. I, section 22(a) ; Rule 27.01(b).

In Jackson's first point, he argues his waiver of a jury trial was not made knowingly, intelligently, and voluntarily because trial counsel advised him to waive the jury trial to potentially avoid federal gun charges, such as a felon in possession of a firearm ("FIP"). Trial counsel had approximately 20 years of experience in the Public Defender's Office with over 12 of those serving as a trial team leader. At the evidentiary hearing, trial counsel testified that, in his experience, the federal prosecutor is less likely to charge a defendant with gun charges if some agreement was entered into with the State regarding the disposition of the case.

And I may have also thought and may have conveyed to him that by entering into an agreement with the State that it might reduce the chances of a federal prosecution, just because in my experience that when cases are resolved with some agreement with the State, even though it is not an actual plea agreement but one where the State agreed to a lid, I think I might have told Mr. Jackson that I thought that the chances were reduced somewhat of a federal intervention for an FIP.

Trial counsel also testified he was concerned that Jackson may have wanted to testify in front of a jury.

[I]f [Jackson] testified he was maybe going to make an admission or would have made an admission concerning the firearm, which concerned me about the possibility of federal prosecution for felon in possession of a firearm if he made that admission. And I believe that was a factor in our discussion about it.

Jackson relies on this testimony to argue trial counsel was ineffective because an agreement to waive a jury trial would not impact a federal prosecutor's decision to charge Jackson with an FIP. According to Jackson, "Counsel's concern that Mr. Jackson's testimony may feature perjury³ has no legal connection with a potential federal felon in possession charge or waiving jury trial. It was bad advice, and it is reversible." However, this ignores other testimony from trial counsel at the evidentiary hearing that, in trial counsel's opinion, a bench trial was more favorable to Jackson than a jury trial. Trial counsel testified, "In this case I think that the main consideration was that I thought the nature of the defense that we were going to put on was one that I thought would have a better chance with Judge Torrence than with a jury." Further, trial counsel stated:

The other factor was truthfully, I just thought that Mr. Jackson's chances with the defense we were putting on wouldn't be good with a jury because it all relied on us creating an inference based on the fact that the alleged money from the ATM was not found on Mr. Jackson at the time that the original arrest occurred, in the original searches in detention. It was not allegedly found until 14 or 15 hours later at the jail.

The inference there involved a whole chain of circumstances that led to the

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