Likins-Osbey v. State, WD84807

CourtCourt of Appeal of Missouri (US)
Writing for the CourtW. DOUGLAS THOMSON, JUDGE.
PartiesDAMONTE LIKINS-OSBEY, Appellant, v. STATE OF MISSOURI, Respondent.
Docket NumberWD84807
Decision Date13 September 2022

DAMONTE LIKINS-OSBEY, Appellant,
v.

STATE OF MISSOURI, Respondent.

No. WD84807

Court of Appeals of Missouri, Western District, Third Division

September 13, 2022


APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI THE HONORABLE S. MARGENE BURNETT, JUDGE.

Cynthia L. Martin, Presiding Judge, Lisa White Hardwick, Judge and W. Douglas Thomson, Judge.

W. DOUGLAS THOMSON, JUDGE.

Damonte Likins-Osbey ("Likins-Osbey") appeals from the judgment of the Circuit Court of Jackson County denying his Rule 24.035 motion for post-conviction relief with an evidentiary hearing. In his sole point on appeal, Likins-Osbey argues the motion court erred in denying his Rule 24.035 motion because it misapplied Rule 29.07(b)(1) by concluding Rule 29.07(b)(1) applied only after a jury verdict and that such a misapplication violated his due process rights under the Fourteenth Amendment of the United States Constitution and Article I, Section 10 of the Missouri Constitution. We affirm.

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Factual and Procedural History[1]

Likins-Osbey was charged in Jackson County with two counts of first-degree sodomy (unclassified felonies), one count of first-degree rape (an unclassified felony), one count of robbery (a class A felony), and one count of theft (a class C felony).

Likins-Osbey's charges stem from two separate incidents. First, on August 29, 2015, Likins-Osbey followed a 22-year old woman ("First Victim") and repeatedly offered her a ride until she accepted. Once First Victim accepted the ride, Likins-Osbey threatened her with a firearm and forced her to perform oral sex while videoing her. After a struggle, First Victim was able to escape from Likins-Osbey, but left her purse containing her credit card in Likins-Osbey's car. Likins-Osbey used First Victim's credit card at least once in the days following his assault against her.

Less than a month later, on September 15, 2015, Likins-Osbey approached another woman ("Second Victim") as she was walking to her car. Likins-Osbey asked Second Victim for a ride, and Second Victim agreed. Once in Second Victim's car, Likins-Osbey threatened her with a firearm, ordered her to drive to a parking garage, and raped her. Likins-Osbey also videotaped Second Victim performing oral sex. Likins-Osbey was arrested after the Kansas City Crime Lab determined his semen was present on Second Victim. Police later found videos of both assaults on Likins-Osbey's cell phone.

On December 17, 2018, Likins-Osbey pleaded guilty to one count of first-degree sodomy and one count of first-degree rape pursuant to a plea agreement with the

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State. In exchange for his guilty plea, the State agreed to dismiss the remaining counts against Likins-Osbey and to recommend a 15-year cap on the sodomy count and a 16-year cap on the rape count to be served consecutively, for a total of 31 years.

Likins-Osbey was sentenced on May 31, 2019. Likins-Osbey's trial counsel stated at sentencing that both he and Likins-Osbey reviewed the Sentencing Assessment Report, which contained victim impact statements from both victims and statements from Likins-Osbey, and did not "see any glaring mistakes or factual discrepancies that [they] wish[ed] to correct." At the sentencing hearing, the following exchange between the trial court, Likins-Osbey, and his trial counsel occurred:

Trial Counsel: And my client does want to address the court at the time of allocution
The Court: All right. Counsel, he may do so from the counsel table if he would prefer.
Trial Counsel: He will.
Keep your voice up so the court reporter can hear.
Are you ready, Your Honor?
The Court: Yes.
Trial Counsel: May I ask some questions of my client?
The Court: Yes.
Trial Counsel: You know what you did that night. Would you agree that you forced sex upon these girls as you were charged with?
Mr. Likins-Osbey: Yes, sir.
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Trial Counsel: Are you making excuses or denying in any way that you recognize that your actions towards them were without their agreement, without their consent?
Mr. Likins-Osbey: No, sir.
Trial Counsel: And you ruined their lives in many ways, as you can recognize now?
Mr. Likins-Osbey: Yes, sir.
Trial Counsel: Is there anything else you would like to say to the Court with respect to the sentence you are about to receive?
Mr. Likins-Osbey: Yes, sir.
Trial Counsel: Go ahead. Now is your time.
Mr. Likins-Osbey: I want to apologize to my victims. I just made a horrible mistake. I want to take precaution [sic] for my mistake. And whatever sentences you grant me, I respect. I am sorry. And I hope that they can forgive me for this situation.
Trial Counsel: Thank you.
Your Honor, we are ready for allocution. Remain standing, please.
The Court: Well, I have already taken your guilty plea. You have pled guilty to the two counts that were amended or that remain in this matter, and that was Count 1, which is sodomy, an unclassified felony, and Count 3, rape in the first degree. ***
The Court will find that the appropriate sentence for these crimes should be 15 years on Count 1, and 15 years on Count 2.
The Court: Is there anything else for the record before the Court adjourns?
Trial Counsel: Not from the defendants. [sic]
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On August 1, 2019, Likins-Osbey timely filed a pro se Rule 24.035 motion. Likins-Osbey was appointed counsel on December 2, 2019, who timely filed an amended motion on May 12, 2020. Likins-Osbey's amended Rule 24.035 motion raised two points, including that his sentence was imposed without due process of law because the trial court did not comply with Rule 29.07(b)(1).[2] The motion court held an evidentiary hearing on both issues on September 3, 2020.[3]

The motion court denied Likins-Osbey's motion on June 24, 2021. The motion court determined that "the right to allocution applies only after conviction upon a trial by jury and does not apply to a sentence pronounced upon a plea of guilty." Additionally, the motion court determined that the trial court met the requirements of Rule 29.07(b).

Likins-Osbey appeals.

Standard of Review

Our review of a motion under Rule 24.035 is limited to determining "whether the findings and conclusions of the trial court are clearly erroneous." Rule 24.035(k). The motion court's findings and conclusions are clearly erroneous only "if, after reviewing the entire record, this Court is left with the 'definite and firm impression that a mistake has been made.'" McIntosh v. State, 413 S.W.3d 320, 323 (Mo. banc 2013) (quoting Smith v. State, 370 S.W.3d 883, 885 (Mo. banc 2012)). In making this

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determination, we presume the motion court's findings and conclusions are correct. Patterson v. State, 576 S.W.3d 240, 243 (Mo. App. W.D. 2019).

Analysis

In his sole point on appeal, Likins-Osbey argues that the motion court clearly erred in denying his Rule 24.035 motion in violation of his due process rights under the Fourteenth Amendment to the United States Constitution and Article I, Section 10 of the Missouri...

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