Likins-Osbey v. State
| Docket Number | WD 84807 |
| Decision Date | 13 September 2022 |
| Citation | 652 S.W.3d 395 |
| Parties | Damonte LIKINS-OSBEY, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Michael K. Hill, for Appellant.
Austin C. Davis, for Respondent.
Division Three: 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.
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 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:
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.
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 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).
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 Constitution because the motion court misinterpreted Rule 29.07(b) by determining the rule applied only after a jury verdict.
"Allocution is granted so that the defendant has an opportunity to raise any infirmities in the sentencing procedure." State v. Giles , 583 S.W.3d 533, 536 (Mo. App. W.D. 2019) (citing State v. Johnson , 245 S.W.3d 288, 296 (Mo. App. W.D. 2008) ). Allocution includes "a defendant's right personally ‘to speak and to present mitigating evidence prior to sentencing.’ " State v. Daniel , 573 S.W.3d 162, 165 n.1 (Mo. App. S.D. 2019) (quoting State v. Taylor , 466 S.W.3d 521, 534 (Mo. banc 2015) ). Allocution can occur even when a trial court does not address a defendant directly. See Taylor , 466 S.W.3d at 534-35.
Without some showing as to how he was prejudiced, a technical violation of Rule 29.07(b) alone does not entitle Likins-Osbey to relief pursuant to Rule 24.035. Rule 24.035 provides the exclusive remedy for "claims that the conviction or sentence imposed violates the constitution and laws of this state or the constitution of the United States...." "[A] technical violation of a Supreme Court Rule does not come within the ambit of Rule 24.035's application to violations of ‘laws of this state.’ " Wallar v. State , 403 S.W.3d 698, 706 (Mo. App. W.D. 2013) ; see also Hill v. United States , 368 U.S. 424, 429, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). Thus, "[w]hen Rule 24.035 post-conviction relief is afforded for a violation of a Supreme Court Rule, it is not because the rule itself was violated, it is because the violation had constitutional significance." Wallar , 403 S.W.3d at 706 n.6.6
The United States Supreme Court has determined that "the failure of a trial court to ask a defendant represented by an attorney whether he has anything to say before sentence is imposed is not of itself an error of the character or magnitude cognizable under a writ of habeas corpus."7 Hill , 368 U.S. at 428, 82 S.Ct. 468. Such a failure "is neither jurisdictional nor constitutional." Id. As a consequence, "collateral relief is not available when all that is shown is a failure to comply with the formal requirements of the Rule. Id. (emphasis added); see also Machibroda v. United States , 368 U.S. 487, 489, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962) ().
In short, while a trial court's failure to follow the exact Rule 29.07(b) language may technically violate a Supreme Court Rule, it does not entitle a defendant to post-conviction or collateral relief without more. For Likins-Osbey's claim that the trial court violated Rule 29.07(b) to be cognizable, Likins-Osbey must demonstrate...
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