Lee v. State
| Decision Date | 28 March 2023 |
| Docket Number | ED110693 |
| Parties | BRIAN C. LEE, Appellant, v. STATE OF MISSOURI, Respondent. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Washington County 21WA-CC00468 Honorable Wendy W. Horn
OPINION
Appellant Brian C. Lee appeals the motion court's judgment denying his Rule 24.035[1]amended motion for post-conviction relief without an evidentiary hearing. In the underlying case, Lee pleaded guilty to one count of unlawful possession of a firearm by a convicted felon, a class D felony, and to two counts of possession of a controlled substance, a class D felony. Lee's appeal concerns only the firearm charge which arose on July 25, 2018, when a park ranger visited the campsite of Lee and his wife and found a firearm in their tent.
The plea court sentenced Lee to seven years on the firearm charge, five years on each possession charge, and ordered that one of the five-year terms run consecutively to the seven-year sentence for a total of twelve years in the Missouri Department of Corrections. After Lee filed his pro se Rule 24.035 motion, appointed counsel timely filed an amended motion claiming ineffective assistance of counsel. The motion was denied without an evidentiary hearing on the basis that the amended motion alleged facts directly refuted by the record.
Lee now claims that by denying him an evidentiary hearing, the motion court clearly erred because his factual allegations of ineffective assistance of counsel, if proven, are not refuted by the record. As to the merits of his claim, Lee alleges that his plea counsel was ineffective by failing to investigate and discuss with him the possible defense that his wife was actually in possession of the firearm, not him.[2] As a result, Lee claims his guilty plea was involuntary because he was unable to make a knowing and informed decision whether to plead guilty or go to trial. We find no clear error on the part of the motion court because the record refutes Lee's claims of ineffective assistance of counsel.
On October 26, 2020, the State charged Lee by information with the unlawful possession of a firearm as a convicted felon in violation of section 571.070. The information alleged that on July 25, 2018, Lee knowingly possessed a 9mm semiautomatic pistol and that he had previously been convicted of a felony.
On September 27, 2021, Lee pleaded guilty to the foregoing charge. During the plea colloquy, Lee demonstrated that he understood the essential elements of the charged crimes and specifically confirmed that he possessed the firearm as a convicted felon. When asked about his counsel's performance, Lee testified (1) that he had time to discuss his case with counsel before the plea hearing, (2) that he was satisfied with counsel's performance, and (3) that he was making the decision to plead guilty of his own volition. Also on September 27, Lee submitted to the plea court his written guilty plea petition in which Lee affirmatively stated that he was satisfied with his counsel and that his counsel had discussed all possible defenses and evidence with him.
In his amended motion, Lee claims that counsel failed to discuss with him the facts of the firearm case or any defenses and as a result, he entered the plea of guilty unknowingly and involuntarily. The amended motion states that had Lee's counsel (1) explained to Lee the applicable law on the possession of a firearm and (2) informed him that a jury could find him not in possession of the firearm, Lee would have taken his case to trial. The motion court denied Lee an evidentiary hearing and issued findings of fact and conclusions of law denying Lee's motion holding that his claim was directly refuted by the record. This appeal follows.
We review the denial of a Rule 24.035 motion for post-conviction relief to determine whether the motion court's findings and conclusions are clearly erroneous. Rule 24.035(k); Morrow v. State, 21 S.W.3d 819, 822 (Mo. banc 2000). The motion court's findings are presumed correct. McCoy v. State, 431 S.W.3d 517, 520 (Mo. App. E.D. 2014). Findings and conclusions are clearly erroneous only if, after a review of the entire record, we are left with the definite and firm impression that a mistake has been made. Id. A movant is only entitled to an evidentiary hearing if: "(1) he pleaded facts, not conclusions warranting relief; (2) the facts alleged are not refuted by the record; and (3) the matters complained of resulted in prejudice to the movant." McNeal v. State, 412 S.W.3d 886, 889 (Mo. banc 2013). A hearing does not need to be held when the motion court determines the record conclusively shows the movant is not entitled to relief. Rule 24.035(h).
The two-pronged Strickland test is applied in cases where a movant claims post-conviction relief based upon ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668,687 (1984); Zink v. State, 278 S.W.3d 170, 175-76 (Mo. banc 2009). The movant must prove the following two elements by a preponderance of the evidence: (1) that counsel's performance did not conform to the degree of skill and diligence of a reasonably competent attorney and (2) that as a result thereof, the movant was prejudiced. Zink, 278 S.W.3d at 175.
Where there is a guilty plea, a claim of ineffective assistance of plea counsel is immaterial "except to the extent that the conduct affected the voluntariness and knowledge with which the plea was made." Worthington v. State, 166 S.W.3d 566, 573 (Mo. banc 2005); see also Gales v. State, 533 S.W.3d 796, 799 (Mo. App. E.D. 2017). A guilty plea must be both a voluntary expression of the movant's choice and a knowing and intelligent act done with sufficient awareness of the circumstances and likely consequences of the act. State v. Hunter, 840 S.W.2d 850, 861 (Mo. banc 1992); Muhammad v. State, 367 S.W.3d 659, 662 (Mo. App. E.D. 2012). If an examination of the guilty plea proceedings directly refutes a movant's claim that his plea was involuntary, then the movant is not entitled to any relief. Rivers v. State, 498 S.W.3d 534, 536-37 (Mo. App. E.D. 2016).
Lee brings one point on appeal. His allegation is that his counsel failed to fully investigate the gun possession charge which would have revealed the viable defense that his wife who was not a felon, possessed the gun instead of Lee. Lee claims his allegation is not refuted by the record because his responses during the plea hearing and in his guilty plea petition were not specific enough to conclusively refute his allegation. We disagree.
When a Rule 24.035 movant claims that the record does not refute allegations of ineffective assistance because the questions asked and answered on the record were not specific enough that claim is undermined where the movant was given multiple opportunities to express dissatisfaction with counsel. Morrison v. State, 65 S.W.3d 561, 564 (Mo. App. W.D. 2002). In State v. Driver, 912 S.W.2d 52, 56 (Mo. banc 1995), the Supreme Court of Missouri held that to refute conclusively an allegation of ineffective assistance of counsel under a Rule 29.15 pleading, the questions asked must be sufficiently specific. Id. The Court stated that responses to general questions such as whether trial counsel did everything that the defendant wanted him to do, or conversely did not do something that defendant wanted, are too broad to refute conclusively an ineffectiveness claim in order for a motion court to deny the Rule 29.15 motion without an evidentiary hearing. Id. However, the Court also noted that this standard is not likely to increase the burden on the judicial process as a whole in that "significant numbers of Rule 24.035 motions are appropriately overruled without evidentiary hearing...
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