Lynn v. State
| Citation | 417 S.W.3d 789 |
| Decision Date | 04 February 2014 |
| Docket Number | No. ED 99451.,ED 99451. |
| Court | Missouri Court of Appeals |
| Parties | Darrill LYNN, Appellant, v. STATE of Missouri, Respondent. |
OPINION TEXT STARTS HERE
Murry A. Marks, St. Louis, MO, for appellant.
Robert M. Hibbs, Jefferson City, MO, for respondent.
Darrill Lynn (Movant) appeals the judgment of the circuit court denying his Rule 24.035 motion for post-conviction relief after an evidentiary hearing. Movant contends that the motion court erred in denying his motion because: (1) his open guilty plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970),1 was invalid under Alford; (2) counsel was ineffective for advising Movant to enter an open Alford plea because it provided no benefit over a trial; (3) counsel was ineffective for failing to conduct adequate pretrial investigation; (4) counsel was ineffective for promising that Movant would receive probation; (5) counsel was ineffective for failing to file and litigate a motion to suppress Movant's statements to police; and (6) the court improperly accepted the plea without a sufficient factual basis. We affirm.
The State charged Movant with kidnapping James McNeely (Victim). Movant decided to plead guilty. At the plea hearing, Movant's counsel informed the court that Movant wanted to enter an Alford guilty plea. The following exchange occurred:
Movant informed the court that he had enough time to talk with counsel about the case and had no complaint about how counsel handled the case. The court asked Movant if he understood that by entering an Alford plea, he was giving up his rights to a trial by jury, to confront his accusers, to call his own witnesses, and to the presumption of innocence at trial. Movant stated that he understood and wished to proceed with his plea.
The court asked Movant: “Do you agree, then, that if the case were tried the State's evidence would show that on December 17, 2009, you, acting knowingly in concert with Jackie Moss, Robert Allen, Chester Harvey, Jr., and Chad Michael Harvey unlawfully confined [Victim] without his consent for a substantial period for the purpose of terrorizing [Victim]?” Movant replied, “Yes, sir.”
Movant stated no threats or promises had been made to cause him to plead guilty and no one made any promise about the sentence he would receive. The court asked Movant: “Do you understand that no one can promise what your sentence will be and I can impose any sentence within the range of punishment permitted by law and the range of punishment on this charge is a minimum of five up to a maximum of fifteen years in the penitentiary?” Movant responded, “Yes, sir.”
The prosecutor informed the court if the case proceeded to trial the evidence would be: In December 2009, Victim was residing in the home of Chester Harvey, Jr. Mr. Harvey told Movant by telephone that he wanted Victim removed from the home. On the night of December 17, Movant, along with Jackie Moss and Robert Allen, went to Mr. Harvey's home. Movant, Mr. Moss, and Mr. Allen “removed” Victim from Mr. Harvey's residence and took him to Movant's home. Victim “remained there with them” until Mr. Harvey and several of his family members arrived at Movant's home the next day. Movant showed Mr. Harvey how to place duct tape on Victim's hands. Mr. Harvey bound Victim, removed him from Movant's home, and drove him back to the Harvey residence. Over the next several days, the Harvey family tortured and killed Victim.
The court asked Movant if he agreed that the State's evidence would be as the prosecutor described if the case proceeded to trial. Movant replied, “Yes, sir.” The court found there was a factual basis for Movant's Alford plea of guilty to the kidnapping charge, that Movant understood the nature of the charge, and that Movant's plea was voluntary and unequivocal. The court accepted the plea. At the sentencing hearing, the court sentenced Movant to ten years' imprisonment. After announcing the sentence, the court advised Movant of his rights to proceed under Rule 24.035.
Movant filed a Rule 24.035 motion for post-conviction relief, asserting a total of six claims. In his first four claims, Movant alleged that counsel was ineffective for:
(1) failing to conduct adequate pretrial investigation by: (a) not reading all the discovery the State provided; and (b) not interviewing or deposing witnesses—specifically, Jackie Moss, Robert Allen, Scott Trower, and Chester Harvey—who would have provided exculpatory testimony;
(2) promising Movant that the court would suspend execution of his sentence and put him on probation when Jackie Moss and Robert Allen received three-year sentences after entering negotiated pleas of guilty to attempted kidnapping charges;
(3) advising Movant to enter an open Alford plea because the plea offered Movant no benefit over going to trial; and
(4) failing to file and litigate a motion to suppress Movant's statements to police that he assisted Mr. Harvey by providing duct tape and explaining how to wrap Victim's hands so that he would not escape.
In his final two post-conviction claims, Movant alleged that the court violated his rights to due process, equal protection, and a fair trial by accepting his guilty plea because:
(1) the court did not: (a) ask Movant if he understood the aspects of an Alford plea; (b) make an explicit finding that Movant was choosing to plead guilty because he believed it was a better alternative than going to trial; or (c) make an explicit finding that Movant's guilty plea represented an intelligent choice among alternative courses of action; and
(2) the factual basis for the plea was insufficient.
The motion court denied Movant's motion after holding an evidentiary hearing. The motion court found that Movant was not a credible witness and that counsel and the prosecutor were credible as to the facts they remembered. Movant appeals.
We review the denial of a post-conviction motion to determine whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 24.035(k). The findings and conclusions are deemed clearly erroneous only if, after reviewing the entire record, we are left with the definite and firm impression that a mistake has been made. Swallow v. State, 398 S.W.3d 1, 3 (Mo. banc 2013). “In reviewing a motion for post-conviction relief filed pursuant to Rule 24.035, an Alford plea is not treated differently from a guilty plea.” O'Neal v. State, 236 S.W.3d 91, 95 (Mo.App.E.D.2007).
Movant asserts six points on appeal. We address these points out of order for ease of analysis.
“As with any guilty plea, an Alford plea is valid if it represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” Michaels v. State, 346 S.W.3d 404, 408 (Mo.App.S.D.2011) (quotation omitted). Where a movant asserts a post-conviction claim that his guilty plea was invalid on the ground that the court violated his constitutional rights, our focus “is on whether the plea was made intelligently and voluntarily and not on whether a particular ritual [was] followed or every detail explained.” Roussel v. State, 314 S.W.3d 398, 401 (Mo.App.S.D.2010) (quotation omitted).
In his first point on appeal, Movant argues that the motion court erred in denying his claim that the court violated his constitutional rights by accepting his plea because: (1) Alford “inherently forecloses” an open Alford plea; and (2) the court failed to satisfy Alford 's requirement to make an explicit finding on the record that Movant made a voluntary and intelligent choice among his options. The State counters that the record demonstrates that Movant voluntarily and intelligently chose to enter the plea.
Movant first argues that the Supreme Court's Alford opinion “inherently forecloses” an open Alford plea. Movant did not present this argument to the motion court. “Claims not presented to the motion court cannot be raised for the first time on appeal.” Lilly v. State, 374 S.W.3d 390, 394 (Mo.App.W.D.2012) (quotation omitted). In addition, a movant is obligated to raise a claim concerning an alleged constitutional violation at the first opportunity. Id. Thus, Movant has failed to preserve this argument. “While, generally, errors not preserved on appeal may be reviewed for plain error at the appellate court's discretion, plain error review does not apply on appeal to review of claims that were not raised in the Rule 24.035 motion.” Id. (internal quotations and citations omitted). Accordingly, we decline to review Movant's claim that Alford “inherently forecloses” an open Alford plea.
Movant's second argument on this point alleges that the court improperly accepted his plea because it failed to make an explicit finding on the record that Movant made a voluntary and intelligent choice among his alternative courses of action. To support his argument, Movant relies on North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).
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