Johnson v. State
| Decision Date | 21 May 2002 |
| Docket Number | WD59539 |
| Parties | Raymond Johnson, Appellant v. State of Missouri, Respondent. WD59539 Missouri Court of Appeals Western District 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Jackson County, Hon. William Stephen Nixon
Counsel for Appellant: Andrew A. Schroeder
Counsel for Respondent: Philip M. Koppe
Opinion Summary:
Raymond Johnson appeals the denial of his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. He pleaded guilty to one count of sexual abuse, one count of kidnapping and two corresponding counts of armed criminal action. The court sentenced Johnson as a predatory sexual offender to life imprisonment with the possibility of parole after 15 years for the sexual abuse count, 15 years imprisonment for the kidnapping count, and 15 years imprisonment for each of the armed criminal action counts. The court ordered that the sentences run consecutively. On appeal, Johnson claims his plea counsel was ineffective for failing to file a motion to quash the state's amended information because he would not have pleaded guilty had he known he could challenge the constitutionality of the sexual predator statute. In his second point, Johnson claims that the motion court erred in denying his motion because the sentencing court allowed victim impact statements about crimes that did not result in a conviction, and the court sentenced him more harshly because of the victim impact statements.
Division One holds: (1) Jurisdiction is proper in this court because Johnson's challenge to the constitutionality of section 558.018.5(2), RSMo 2000, is merely colorable, and he has failed to properly raise a claim that any other statute is unconstitutional.
(2) The motion court did not err in denying, without an evidentiary hearing, Johnson's claim that his counsel was ineffective for failing to challenge the constitutionality of section 558.018.5(2), RSMo 2000. His ineffective assistance of counsel claim is refuted by the record; he relies on law in court rulings subsequent to his guilty plea; and he fails to demonstrate prejudice, because the Supreme Court of Missouri, in State v. Gilyard, 979 S.W.2d 138 (Mo. banc 1998), held that section 558.018, RSMo 2000, is constitutional.
(3) The motion court did not err in denying, without an evidentiary hearing, his claim that his constitutional rights were violated when the sentencing court considered the victim impact statements. Johnson did not raise a constitutional objection to the admission of the victim impact statements at the sentencing hearing; therefore, he did not preserve the issue for appellate review. In addition, the victim impact statements constituted evidence pertaining to the commission of the prior sexual offenses that enhanced his sentence under section 558.018, RSMo 2000. Therefore, it was not improper for the sentencing court to consider the circumstances of the offenses.
Raymond Johnson appeals the denial of his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. Mr. Johnson pleaded guilty to one count of sexual abuse, section 566.100;1 one count of kidnapping, section 565.110; and two corresponding counts of armed criminal action, section 571.015. The court sentenced Mr. Johnson as a predatory sexual offender to life imprisonment with the possibility of parole after fifteen years for the sexual abuse count, fifteen years imprisonment for the kidnapping count, and fifteen years imprisonment for each of the armed criminal action counts. The court ordered that the sentences run consecutively. Mr. Johnson filed a Rule 24.035 motion for post-conviction relief, which the motion court denied without holding an evidentiary hearing. On appeal, Mr. Johnson claims his plea counsel was ineffective for failing to file a motion to quash the State's amended information, in that Mr. Johnson would not have pleaded guilty had he known he could challenge the constitutionality of the sexual predator statute. In his second point, Mr. Johnson claims that the motion court erred in denying his motion because the sentencing court allowed victim impact statements about crimes that did not result in a conviction, and the court sentenced him more harshly because of the victim impact statements.
The judgment of the motion court is affirmed. Factual and Procedural Background
On October 18, 1996, Mr. Johnson approached a young woman while on a jogging path. Mr. Johnson used a knife to force the woman into the woods nearby. He made the woman take off all her clothing, and then he cut her and fondled her breasts. After that, he tied her up and left her in the woods.
A grand jury indicted Mr. Johnson for one count of sexual assault, one count of kidnapping, and two counts of armed criminal action. The State subsequently filed an information in lieu of indictment charging Mr. Johnson with one count of sexual abuse, as a predatory sexual offender; one count of kidnapping; and two counts of armed criminal action. The State charged Mr. Johnson as a predatory sexual offender based on two forcible sodomies that occurred in Johnson County, Kansas. In one of the two instances, Mr. Johnson hit a woman, who was exercising on a trail in Overland Park, over the head with a rock and then forcibly sodomized her. In the other, Mr. Johnson hit a woman, who was walking on an exercise path in Johnson County, in the face with a board, dragged her into the woods, and forcibly sodomized her.2
Mr. Johnson agreed to plead guilty on all four counts charged in this case without a plea agreement. In March 1998, the trial court held a plea hearing. At the hearing, Mr. Johnson waived proof of facts as to the two Kansas forcible sodomies. On June 10, 1998, the court held a sentencing hearing. At the sentencing hearing, Mr. Johnson's counsel argued that the Missouri sexual predator law was unconstitutional, and he objected to the admission of the two victim impact statements relating to the Kansas forcible sodomies. The basis for Mr. Johnson's objection to the victim impact statements was that he waived proof of facts as to the Kansas incidents. The court overruled the objection and admitted the victim impact statements. The court found that Mr. Johnson was a predatory sexual offender and sentenced Mr. Johnson on the sexual abuse charge, as a predatory sexual offender, to life imprisonment with the possibility of parole in fifteen years.
The trial court further sentenced Mr. Johnson to fifteen years imprisonment for kidnapping and fifteen years imprisonment for each of the two counts of armed criminal action. The court ordered that the sentences run consecutively.
Mr. Johnson filed a Rule 24.035 motion for post-conviction relief. In his motion, he claimed ineffective assistance of trial counsel for his counsel's failure to file a motion to quash the information because section 558.018.5(2), the statute under which he was sentenced as a predatory sexual offender, was unconstitutional. He also claimed that the sentences imposed violated his due process rights because the trial court considered victim impact statements for the two Kansas forcible sodomies. The motion court denied Mr. Johnson's motion without holding an evidentiary hearing. This appeal followed.Jurisdiction Proper Since Constitutional Claim
is Merely Colorable
Mr. Johnson argues in his first point that the motion court erred in denying his post-conviction claim that his trial counsel was ineffective for failing to raise the constitutionality of section 558.018.5(2). Generally, a challenge to the constitutionality of a statute would divest this court of jurisdiction. Mo. Const. art. V, section 3; Wright v. Mo. Dept. of Soc. Servs., Div. of Family Servs., 25 S.W.3d 525, 528 (Mo. App. 2000). Yet, " " Wright, 25 S.W.3d at 528 (quoting Schumann v. Mo. Highway and Transp. Comm'n, 912 S.W.2d 548, 551 (Mo. App. 1995)). A challenge may be deemed merely colorable if a "'preliminary inquiry discloses the contention is so obviously unsubstantial and insufficient, either in fact or law, as to be plainly without merit and a mere pretense.'" Id. (quoting Kansas City Star Co. v. Shields, 771 S.W.2d 101, 103 (Mo. App. 1989)). Because this court finds, in its resolution of Mr. Johnson's first point as set out hereafter, that Mr. Johnson's challenge to the constitutionality of section 558.018.5(2) is merely colorable, see id., and he has failed to properly raise a claim that any other statute was unconstitutional, Laubinger v. Laubinger, 5 S.W.3d 166, 173 (Mo. App. 1999), this court has jurisdiction to decide this case.Standard of Review
Appellate review of the denial of a Rule 24.035 motion is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 24.035(k). The findings and conclusions of the motion court are deemed clearly erroneous "if, after a review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made." State v. Roll, 942 S.W.2d 370, 375 (Mo. banc 1997). Denial of Claim that Counsel Ineffective Not Erroneous
In his first point, Mr. Johnson claims that the trial court erred in denying, without an evidentiary hearing, his claim that his plea counsel was ineffective for failing to file a motion to quash the information in lieu of indictment charging Mr. Johnson as a predatory sexual offender. Mr. Johnson asserts that his counsel was ineffective in not filing the motion challenging the constitutionality of section 558.018.5(2) because his plea counsel believed that section 558.018.5(2) was unconstitutional. Mr. Johnson argues that his plea counsel's belief is known because his trial counsel "even voiced his belief several months later at...
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