Lusk v. State

• Decision Date: 08 November 2022
• Docket Number: ED 109987
• Citation: 655 S.W.3d 230
• Parties: Edward D. LUSK, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

655 S.W.3d 230

Edward D. LUSK, Appellant,

v.STATE of Missouri, Respondent.

No. ED 109987

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

Filed: November 8, 2022

FOR APPELLANT: Maleaner R. Harvey, Missouri Public Defender's Office, 1010 Market Street, Suite 1100, St. Louis, Missouri 63101.

FOR RESPONDENT: Karen L. Kramer, Assistant Attorney General, PO Box 899, Jefferson City, Missouri 65102.

Philip M. Hess, Judge

Introduction

Edward D. Lusk ("Movant") pled guilty to property damage in the first degree, arson in the second degree, and six counts of burglary in the second degree. After an evidentiary hearing, the motion court denied his Rule 24.035 motion for post-conviction relief.¹ He appeals the motion court's judgment and raises three Points. In Point I, Movant argues the motion court clearly erred because his plea counsel ("Plea Counsel") failed to advise him of a defense for the arson in the second-degree count (Count XVIII) by which Movant could have proceeded to trial and submitted lesser-included offense instructions for reckless or negligent burning. In Point II, Movant argues the motion court clearly erred because Plea Counsel failed to advise him of an alternative perpetrator defense on the burglary in the second-degree count involving the Battles Communication location (Count XX). In Point III, Movant argues the motion court clearly erred because Plea Counsel failed to object at sentencing to the prosecutor arguing facts about an incident to which Movant was not pleading guilty and was outside the record.

Because Movant failed to show he was prejudiced by Plea Counsel allegedly not advising him of the lesser included offenses of reckless or negligent burning, we deny Point I. Because Movant failed to prove Plea Counsel did not advise him of the alternative perpetrator defense, we deny Point II. Because Movant failed to show he was prejudiced by Plea Counsel's failure to object to the prosecutor's statements, we deny Point III.

We affirm.

Factual and Procedural Background

In July and August of 2016, Movant violated his parole for first-degree robbery by committing several burglaries causing significant property damage. On August 26, 2016, Movant was charged by information as a prior and persistent offender with seven counts of second-degree burglary, one count of second-degree attempted burglary, nine counts of first-degree property damage, one count of receiving stolen property, two counts of resisting arrest, three counts of misdemeanor stealing, one count of second-degree assault of a law enforcement officer, and one count of second-degree arson. On June 12, 2017, Movant pled guilty to six counts of second-degree burglary, in violation of section 569.170 (Counts I, III, VI, XII, XV, and XX);² one count of first-degree property damage, in violation of section 569.100 (Count IX); and one count of second-degree arson, in violation of section 569.050 (Count XVIII). The remaining seventeen charges were dismissed by the prosecution as part of the plea agreement. On August 18, 2017, Movant was sentenced as a prior and persistent offender to eight consecutive terms of fifteen years imprisonment for 120 years in the Missouri Department of Corrections.

On November 27, 2017, Movant timely filed his Rule 24.035 post-conviction motion. On January 3, 2018, his post-conviction counsel entered appearance on Movant's behalf. Movant's post-conviction counsel requested an additional thirty days to file an amended post-conviction motion. On July 12, 2018, Movant's post-conviction counsel timely filed an amended post-conviction motion with a request for an evidentiary hearing. After the evidentiary hearing, the motion court issued findings of fact and conclusions of law denying Movant's Rule 24.035 motion. This appeal follows.

Standard of Review

Our review of a Rule 24.035 motion is "limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous." Rule 24.035(k). "A motion court's findings are presumed correct, and we will overturn the ruling only if we are left with a definite and firm impression that a mistake has been made." James v. State , 462 S.W.3d 891, 893 (Mo. App. E.D. 2015) (quoting Nichols v. State , 409 S.W.3d 566, 569 (Mo. App. E.D. 2013) ). Movant must prove claims "by a preponderance of the evidence." Rule 24.035(i).

Discussion

Point I: Failure to Advise of Lesser-Included Offense Instructions

A. Party Positions

In Point I, Movant argues the motion court clearly erred because Plea Counsel failed to advise him of a defense for the arson in the second-degree count (Count XVIII) by which Movant could have proceeded to trial and submitted lesser-included offense instructions for reckless or negligent burning. Movant argues Plea Counsel's failure to discuss the lesser included offenses on the second-degree arson count negated the knowing entry of his plea. Rueger v. State , 498 S.W.3d 538, 543 (Mo.App. E.D. 2016) (citing Wiggins , 480 S.W.3d at 383 ).

Movant argues he was charged with second-degree arson, which requires a person knowingly damage a building or inhabitable structure by starting a fire or causing an explosion. § 569.050. Movant argues he maintained the position he did not knowingly start the fire which occurred at Ringer and Jarrell Law Office. Thus, Movant argues, "had the count proceeded to trial," he "could have been found guilty of a nested-lesser included offense of reckless burning or exploding ...." Movant argues Plea Counsel failed to discuss the lesser-included offenses of reckless or negligent burning, or their elements, on Count XVIII. Movant argues had Plea Counsel advised him of such offenses, "as well as the certainty of them being submitted for deliberation to a jury," Movant would not have pled guilty to Count XVIII, second-degree arson. Thus, Movant argues his "plea of guilty was not voluntarily, knowingly[,] and intelligently made." Movant argues Plea Counsel "did not act as reasonably competent counsel would act under similar circumstances" because reasonably competent counsel would have advised him of the "viable defense" available at trial.

The State argues the motion court did not clearly err in denying Movant's claim because he "failed to prove that had he received such advice, he would have rejected the plea agreement and insisted on going to trial on all [twenty-five] counts." The State argues, "[t]here was no possibility of going to trial only on the arson charge, and thus if [Movant] declined to plead guilty per the plea agreement, he would have faced trial on all [twenty-five] counts." The State argues there was no guarantee the jury would convict him of the lesser included offenses, even if he had proceeded to trial. The State argues even if Movant would have been convicted of the lesser-included offenses on the second-degree arson count, Movant "still would have been facing a potential total maximum sentence of 269 years." The State argues "both [Plea Counsel] and [Movant] believed that if he had taken the case to trial, he would likely have been convicted of most, if not all, of the [twenty-five] counts." Thus, the State argues the motion court correctly determined there was no reasonable probability Movant would "have proceeded to trial rather than plead guilty because his strategy was to plead guilty to eight counts rather than possibly be convicted of [twenty-five] counts."

B. Analysis

There is a strong presumption trial counsel's conduct was reasonable and effective. Davis v. State , 486 S.W.3d 898, 906 (Mo. banc 2016) (citing Johnson v. State , 406 S.W.3d 892, 899 (Mo. banc 2013) ). To be entitled to post-conviction relief for ineffective assistance of counsel, movants must show by a preponderance of the evidence: "(1) his trial counsel failed to exercise the level of skill and diligence that a reasonably competent trial counsel would in a similar situation, and (2) he was prejudiced by that failure." Id. (citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). "Prejudice occurs when ‘there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.’ " Id. (quoting Deck v. State , 68 S.W.3d 418, 429 (Mo. banc 2002) ).

Where there is a guilty plea, a claim of ineffective assistance of counsel is immaterial ‘except to the extent that the conduct affected the voluntariness and knowledge with which the plea was made.’ " Rice v. State , 550 S.W.3d 565, 569 (Mo. App. E.D. 2018) (quoting Wiggins v. State , 480 S.W.3d 379, 383 (Mo. App. E.D. 2015) ). It is counsel's basic duty "to discuss the circumstances and possible consequences of entering a plea in order to ensure that the defendant makes an informed and intelligent decision about waiving the right to a trial." Id. (citing Wiggins , 480 S.W.3d at 383 ). If the movant establishes counsel's deficient performance, he must further show there is a reasonable probability, but for counsel's ineffectiveness, he would not have pled guilty and would have demanded a trial. Id. (citing Wiggins , 480 S.W.3d at 383 ). "If the movant fails to satisfy either the performance prong or the prejudice prong, we need not consider the other." Farr v. State , 408 S.W.3d 320, 322 (Mo. App. E.D. 2013) (citing Sidebottom v. State , 781 S.W.2d 791, 795–96 (Mo. banc 1989) ).

In analyzing the record, "[t]his Court defers to the motion court's determination of witness credibility, as it is in a superior position to evaluate such." Porter v. State , 575 S.W.3d 731, 736 (Mo. App. E.D. 2019) (citing Bradley v. State , 292 S.W.3d 561, 566 (Mo. App. E.D. 2009) ). "The motion court is not required to believe the testimony of the movant or any other witness, even if uncontradicted, and this Court defers to the motion court's determination of credibility." Kerpash v. State , 618 S.W.3d 278, 282 (Mo. App. E.D. 2021) (quoting Smith v. State , 413 S.W.3d 709, 715 (Mo. App. E.D. 2013) ).

Plea counsel's...