Moore v. State, 23733

• Decision Date: 27 March 2001
• Docket Number: No. 23733,23733
• Citation: 39 S.W.3d 888
• Parties: (Mo.App. S.D. 2001) Eddie Moore, Movant/Appellant v. State of Missouri, Respondent/Respondent. 0
• Court: Missouri Court of Appeals

39 S.W.3d 888 (Mo.App. S.D. 2001)

Eddie Moore, Movant/Appellant v. State of Missouri, Respondent/Respondent.

No. 23733

Missouri Court of Appeals Southern District

03/27/2001

Appeal From: Circuit Court of Scott County, Hon. W. H. Winchester, III

Counsel for Appellant: Scott Thompson

Counsel for Respondent: Stephanie Morrell

Opinion Summary: None

Parrish, P.J., and Montgomery, J.J., concurs.

Kenneth W. Shrum, Judge

Eddie Moore ("Movant") appeals the denial of his motion for post-conviction relief. After entering a plea of guilty, Movant timely filed both a pro se and amended motion for post-conviction relief pursuant to Rule 24.035.¹ An evidentiary hearing was held wherein Movant's request was denied. The motion court's denial of such relief is not clearly erroneous. We affirm the judgment of the motion court.

Movant was charged with the Class C felony of possession of more than thirty-five grams of marijuana, a controlled substance, under section 195.202.². Movant was also charged as a prior and persistent offender under section 558.016.³. The marijuana was found during a search of Movant's home executed pursuant to a search warrant which Movant now alleges was based, in whole or in part, upon information supplied to the police from a confidential informant. Movant filed a motion to suppress evidence which was denied. Thereafter, Movant pleaded guilty to the possession charge. A pre-sentence investigation report was ordered, and meanwhile, Movant was remanded to the county jail.

While in jail awaiting sentencing, Movant shared a cell with Jeremy Pearson ("Pearson"). After Pearson told Movant that he (Pearson) was a confidential informant in Movant's case, Movant contacted his attorney. Movant's attorney interviewed Pearson. The next day at the sentencing hearing, Movant attempted to withdraw his guilty plea based on this new information. His declared intent was to again challenge the search warrant because he believed that information given by Pearson to police officers was the basis for the search warrant application. With that as his premise, Movant argued the warrant was based on a faulty affidavit as Pearson had not established a reputation with the police as a reliable source. Movant's request to withdraw his guilty plea was denied, however, and the court sentenced Movant to ten years' imprisonment.

Once he was incarcerated, Movant filed the instant motion. In his motion, Movant alleged his counsel was ineffective for inducing him to plead guilty without interviewing Pearson, the supposed confidential informant used in Movant's case. In this regard, Movant alleged: (1) the information received from Pearson called into question the validity of the search warrant used to gather evidence against him; (2) that before learning about Pearson's role in his case, Movant's lawyer assured him the State's case against him was "solid," when in fact it was not; (3) during the sentencing hearing, his lawyer stated "he would not have advised [M]ovant to plead had he known about the confidential informant[;]" and (4) but for his lawyer's "incorrect information," Movant would not have pleaded guilty and would have gone to trial. On another issue, Movant alleged his lawyer was ineffective for promising he would only receive a seven-year sentence and representing to Movant that if his sentence was more than seven years, the court would allow him to withdraw the plea.

At the trial of Movant's Rule 24.035 motion, Pearson testified he was sent by the police to purchase "weed" from Movant in exchange for "not going to jail" on charges related to a breaking and entering incident. Pearson stated he only had contact with Movant on two occasions, and this was the only "work" he had ever done with the police.

Movant's plea counsel was Kent Hall. He testified to the following factual discussion. Hall was assigned to Movant's case after another public defender (Patrick McMenamin) withdrew because he and Movant were not "communicating well." Although Hall did some investigation after taking over the case, he did not realize from reading the police reports that the police had used a confidential informant. As Hall explained:

"That did not jump out at me. I reviewed the police reports, and it appeared to me that the--I know that Pat McMenamin had already filed a motion to suppress physical evidence on the basis of an illegal search and that had been ruled upon. And I didn't feel the need to go back and revisit those issues because it was pretty much an all-encompassing motion alleging any possible grounds.

"And I also recall . . . that the report generated by the Sikeston DPS prior to the search warrant being issued . . . indicated that sales had been made to undercover officers as opposed to a confidential informant."

After Movant told Hall of Pearson's alleged role in the case, Hall went to the jail and interviewed Pearson. From this interview, Hall concluded Pearson probably had no "track record of reliability" and, consequently, thought "perhaps we had dropped the ball by not learning of him earlier, investigating, doing whatever we could to turn him up." This concern was the reason Hall asked the sentencing court to allow Movant to withdraw his guilty plea just before Movant's sentencing. In seeking to withdraw Movant's guilty plea, Hall recalled telling the sentencing court "that the affidavit in support of the search warrant does represent that the Confidential Informant No. 152 had a reliable track record with the police department," yet Hall "had not investigated this further to verify whether or not Mr. Pearson is the confidential informant here." Regarding his failure to file a motion requesting the identity of "confidential informant 152," Hall explained that prior to Movant's plea there was no known issue concerning the confidential informant. He testified, "I didn't have any evidence to make me think that there was a problem with the affidavit--the truthfulness of that part of the affidavit or the confidential informant." Hall specifically denied ever telling Movant that he had talked with the judge and prosecutor and obtained assurances from them that Movant's sentence would be seven years if he pleaded guilty.

After the motion court denied Movant's Rule 24.035 motion, Movant filed this appeal. He claims the motion court erred in not finding his counsel ineffective for (1) failing to investigate the issues surrounding the confidential informant, and (2) assuring Movant he would receive a particular sentence of not more than seven years.

Appellate review of a denial of a Rule 24.035 motion is limited to determining whether the findings and conclusions of the motion court are clearly erroneous. Rule 24.035(k); Cole v. State, 2 S.W.3d 833, 834 (Mo.App. 1999). The findings and conclusions are clearly erroneous if, after a review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made. State v. Roll, 942 S.W.2d 370, 375 (Mo.banc 1997).

To prevail on a claim of ineffective assistance of counsel, a movant must show: First, that trial counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances; and, second, that counsel's deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984). This prejudice is shown where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. at 2068.

Because Movant's conviction resulted from a guilty plea, a claim of ineffective assistance of counsel is immaterial except to the extent that it infringes upon the voluntariness and knowledge with which the guilty plea was made. Roll, 942 S.W.2d at 375; Cole, 2 S.W.3d at 835. There is a strong presumption that counsel's conduct was reasonable under the circumstances, and to overcome that presumption, the movant must establish a serious dereliction of duty by plea counsel that substantially affected his rights. Cole, 2 S.W.3d at 835. Furthermore, the movant must demonstrate the plea was not an intelligent or knowing act. Id.

In his first point on appeal, Movant claims the motion court erred because he "established by a preponderance of the evidence that plea counsel was ineffective for failing to investigate the identity of the confidential informant and the legitimacy of the search warrant." He asserts this "investigation" would have "undoubtedly supported" his motion to suppress, since the entire case "clearly hinged" on the legitimacy of the search warrant. Movant insists he would not have pleaded guilty had he "known about Mr. Pearson, the confidential informant."

Fatal to Movant's argument is the fact he presented no evidence that any information furnished by Pearson was used in preparing the search warrant affidavit or obtaining the warrant. Certainly, there is no evidence Pearson's information was the only basis for issuance of the warrant. Contrary to what Movant argues, the State did not have the burden of proving the foundational basis for the warrant in this Rule 24.035 case. Under Rule 24.035(i), Movant had the burden of overcoming the presumption that his lawyers in the criminal case were competent "by a preponderance of the evidence." Sutton v. State, 966 S.W.2d 337, 339 (Mo.App. 1998). Despite having that burden, Movant never put into evidence his motion to suppress, the affidavit in support of the search warrant, the search warrant itself, or the transcript of the suppression hearing. Moreover, he did not call his first lawyer (McMenamin) to testify, nor the individual who signed the affidavit in support of the search warrant. Likewise, he failed to call any law enforcement personnel involved in procuring and executing...