Johnson v. State

• Decision Date: 19 June 2018
• Docket Number: ED 105483
• Citation: 552 S.W.3d 768
• Parties: Antwane JOHNSON, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

552 S.W.3d 768

Antwane JOHNSON, Appellant,

v.STATE of Missouri, Respondent.

ED 105483

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: June 19, 2018

Gwenda R. Robinson, 1010 Market Street, Suite 1100, St. Louis, MO 63101, for appellant.

Joshua D. Hawley, Shaun J. Mackelprang, PO Box 899, Jefferson City, MO 65102, for respondent.

Gary M. Gaertner, Jr., Presiding Judge

Introduction

Antwane Johnson (Movant) appeals from the motion court’s judgment denying his motion under Rule 29.15¹ for post-conviction relief after an evidentiary hearing. On appeal, Movant asserts first that his trial counsel was ineffective for failing to object to various statements the State made during sentencing and for failing to object to the sentence itself, and second that the sentencing court’s sentence was an abuse of discretion. We affirm.

Factual and Procedural Background

A jury convicted Movant of first-degree burglary, first-degree robbery, and armed criminal action (ACA) after a trial at which they heard the following facts. On May 16, 2012 Movant, who was armed with a knife, and Jerome Burse (Burse), who was armed with a .38 caliber revolver, entered a home in the City of St. Louis that Hakeem Grant (Grant), his girlfriend Jasmine Hopkins, their seven-month-old daughter Z.G., Kiana Miller (Miller), Lamonica Ruff (Ms. Ruff), and John Darryl Ruff all occupied. Grant testified that around 2:30 p.m. he heard his daughter and Miller screaming, and he saw a man armed with a gun holding Miller—who was carrying the baby—in a headlock. Movant gathered all the people in the home into the front room where he and Burse demanded money and jewelry at gunpoint, including the rings from Ms. Ruff’s fingers, all of which Movant collected. Movant then held a knife to Ms. Ruff’s throat and threatened to cut her throat if the people in the home did not give Movant more money. At this point, Grant drew a .40 caliber pistol from the couch and began shooting at Movant and Burse, striking them both. Grant and Burse continued to shoot at each other as Burse ran away; Burse died from these multiple gunshot injuries. The State charged Movant with: (1) second-degree felony murder for Burse’s death, (2) ACA, (3) first-degree burglary, (4) ACA, (5) first-degree robbery, (6) ACA, (7) first-degree robbery, (8) ACA, (9) first-degree robbery, and (10) ACA. The jury convicted Movant of counts 3-10, but acquitted Movant of felony murder and the associated ACA charge.

At the sentencing hearing, the State argued that Movant’s crime was "a little bit more than ... what a normal robbery case would involve," specifically pointing out that Burse died during the course of the robbery. The State argued that even though the jury did not convict Movant of felony murder, Burse’s death was an "aggravating factor" that the sentencing court should take into account in determining Movant’s sentence. The State also argued that the sentencing court should consider Movant’s failure to accept responsibility for the crimes in determining the proper sentence, as evidenced by the "three-or four-day" trial. The State then noted Movant’s four prior convictions and requested a sentence of twenty-five years, arguing, "[t]his was a violent home invasion, and I think a violent home invasion deserves an appropriate sentence."

Movant’s trial counsel countered that Movant had always accepted responsibility for the burglary and robbery but "went to trial specifically because there was no way to negotiate the murder charge out of the ten charges." Movant’s counsel requested a sentence at the lower end of the sentencing range, noting that while Movant had prior convictions, they were for nonviolent offenses. Movant addressed the court, expressing his remorse both for the crime and for the pain that Burse’s family experienced, and he stated he went to trial "to prove [his] innocence of murder."

In announcing its sentence, the sentencing court recognized that "certainly the jury found [Movant] not guilty of the murder" but noted the physical and psychological injuries that resulted from "going into someone’s house and holding them up," including that Burse was killed. The sentencing court again noted that the jury did not find Movant guilty of felony murder, which the court "accept[ed]," but the court stated the jury found Movant guilty of the other charges and "judgment needs to be entered accordingly." The court then sentenced Movant as a prior and persistent offender to concurrent terms of twenty-five years on both the robbery and burglary charges, and to fifteen years each on all ACA charges, concurrent to each other, but consecutive to the robbery and burglary charges, for a total sentence of forty years in the Missouri Department of Corrections. This Court affirmed Movant’s conviction and sentence on appeal. State v. Johnson, 479 S.W.3d 736 (Mo. App. E.D. 2016).

Movant filed a timely Rule 29.15 motion. In his timely amended motion, Movant asserted that his trial counsel was ineffective for failing to object to the State’s statements at sentencing suggesting Movant’s sentence be enhanced for exercising his right to go to trial and for the felony murder charge despite the acquittal, and for failing to object to the sentence itself; and that the sentencing court abused its discretion in enhancing Movant’s sentence based on the acquitted felony murder and ACA charges.

After an evidentiary hearing on the motion, the motion court² denied Movant’s request for relief under Rule 29.15, finding the record did not show the sentencing court either punished Movant for having a trial or sentenced Movant for the acquitted charges. Rather, the motion court stated the sentencing court sentenced Movant based on the "egregious nature of the offenses and the jury’s verdicts in this matter." The motion court further noted any objection by trial counsel on these grounds "would not have mattered in the sentencing hearing." Moreover, the motion court found the sentence was "a fair and just sentence based solely on the facts and circumstances as the jury found them in its guilty verdicts." This appeal follows.

Standard of Review

Appellate review of the denial of a post-conviction motion is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 29.15(k). The motion court’s findings of fact and conclusions of law are clearly erroneous only if the reviewing court, having examined the entire record, is left with the definite and firm impression that a mistake has been made. McNeal v. State, 500 S.W.3d 841, 844 (Mo. banc 2016).

Discussion

Point I

In his first point on appeal, Movant argues the motion court erred in denying his motion for post-conviction relief because his trial counsel was ineffective for failing to object to the State’s arguments during sentencing that Movant should be punished for Burse’s murder, of which Movant was acquitted, and that the sentencing court should enhance Movant’s sentence for exercising his right to go to trial; and for failing to object to the court’s imposition of a fifteen-year-higher sentence than the State’s recommendation after the sentencing court noted "somebody [had been] killed." Movant asserts that if his trial counsel had objected, there is a reasonable probability that he would have received a lesser sentence. We disagree.

For relief based on claims of ineffective assistance of counsel, Movant must show by a preponderance of the evidence both that his counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances, and that his counsel’s deficient performance prejudiced him. Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006) (citing Strickland v. Washington, 466 U.S. 668, 687-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). To establish prejudice from a claim of ineffective assistance of counsel at sentencing, the movant is required to show that, but for counsel’s purported errors, there is a reasonable probability that the sentence would have been lower. Bello v. State, 464 S.W.3d 284, 289 (Mo. App. W.D. 2015). Failure to prove either prong is fatal to the claim. Barnes v. State, 334 S.W.3d 717, 721 (Mo. App. E.D. 2011). We "presume[ ] that counsel’s conduct was reasonable and effective," and that any challenged action was part of counsel’s reasonable trial strategy. Anderson, 196 S.W.3d at 33 ; see also Barnett v. State, 103 S.W.3d 765, 769 (Mo. banc 2003).

A. Movant’s Trial Counsel was Not Ineffective for Failing to Object to the State’s Argument that Movant’s Sentence should be Enhanced for Burse’s Death, or for Failing to Object to the Sentence as Above the State’s Recommendation after the Court Noted Burse Had Been Killed

During the penalty phase of a trial, a sentencing court "shall decide the extent or duration of sentence or other disposition to be imposed under all the circumstances, having regard to the nature and circumstances of the offense and the history and character of the defendant and render judgment accordingly." See Section 557.036.1.³ It is the sentencing court’s responsibility to consider the circumstances of the crime committed and the defendant’s background and character in fashioning a punishment that fits both the crime and the defendant. See Bello, 464 S.W.3d at 291. This Court presumes the sentencing court’s "experience and expertise enable the judge to consider appropriate sentencing factors and to disregard improper matters." State v. Donovan, 539 S.W.3d 57, 72 (Mo. App. E.D. 2017).

Here, during the sentencing hearing, the State made the following arguments about the violent nature and circumstances of Movant’s crime:

[W]hether or not [Movant] was convicted of the murder, [it] is an aggravating factor and should be taken into account by the Court with regard to [Movant’s] sentence. Further, I think with regard to [Movant’s] actions, I just want to remind the Court that [Movant] was the man who had a knife held to the

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