Morrison v. State
| Decision Date | 22 January 2002 |
| Docket Number | No. WD 59892.,WD 59892. |
| Citation | 65 S.W.3d 561 |
| Parties | Kenneth MORRISON, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Sarah Weber Patel, Asst. Public Defender, Kansas City, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, for Respondent.
Kenneth Morrison pleaded guilty in the Circuit Court of Jackson County to one count of robbery in the first degree and one count of armed criminal action. The circuit court denied his Rule 24.035 motion without an evidentiary hearing, and this appeal follows. Morrison argues that the circuit court clearly erred in denying his Rule 24.035 motion without an evidentiary hearing because his claim, that his attorney coerced him into pleading guilty by failing to investigate and prepare for trial, alleged facts, not conclusions, warranting relief that were not refuted by the record and that have caused him prejudice. Because the facts Morrison alleges are refuted by the record, we affirm.
Kenneth Morrison was charged by information on May 7, 2000, with two counts of robbery in the first degree and two counts of armed criminal action. His trial was scheduled for June 19, 2000. On that date, Morrison appeared and pleaded guilty to one count of robbery in the first degree and one count of armed criminal action. At the plea hearing, the following exchange took place between Morrison and the court:
Morrison filed an amended Rule 24.035 motion alleging that his trial attorney had coerced him into pleading guilty by disregarding his requests to investigate and by failing to prepare for trial. Morrison alleged that his trial attorney, Tom Shanahan, met with him three times. According to Morrison, he told Mr. Shanahan that he wanted to go to trial, and asked Mr. Shanahan to contact his co-defendants, Ronnie Gooden and Donald LaGrone, to see if they were willing to testify on his behalf. He also told Mr. Shanahan that he wanted the hair samples tested that were collected by the police from the masks that were thought to have been worn during the robbery. Morrison asserts that Mr. Shanahan told him that he had no defense, and that Mr. Shanahan did not contact the codefendants or arrange to have the hair samples tested.
The motion court concluded, without conducting an evidentiary hearing, that Morrison had waived his right to complain about trial counsel's failure to investigate his case by pleading guilty, and that he was barred from asserting ineffective assistance of counsel as a result of his admission of counsel's competence at the plea hearing.
Morrison raises one point on appeal. He argues that the motion court clearly erred when it denied his Rule 24.035 motion without an evidentiary hearing because he alleged that his attorney coerced him into pleading guilty by disregarding his requests for investigation and by failing to prepare for trial. We are limited in our review to a determination of whether the motion court's findings of fact and conclusions of law were clearly erroneous. May v. State, 921 S.W.2d 85, 86 (Mo.App.1996). We will only find the motion court's findings of fact and conclusions of law clearly erroneous if, after a review of the entire record, we are left with the definite and firm impression that a mistake has been made. Id.
In order to obtain an evidentiary hearing on claims of ineffective assistance of counsel, a movant must 1) allege facts, not conclusions, warranting relief; 2) the facts alleged must raise matters not refuted by the record; and 3) the matters complained of must have resulted in prejudice to the movant. Redeemer v. State, 979 S.W.2d 565, 569 (Mo.App.1998). The facts alleged must show both that counsel's performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney, and that the movant's case was thereby prejudiced. Id.
Morrison alleged the following in his amended motion:
Mr. Morrison will testify that the first time he met Mr. Shanahan was only two weeks before his trial date. During this [sic] two weeks, Mr. Shanahan met with Mr. Morrison three times. At this meeting, Mr. Shanahan told Mr. Morrison about the plea agreement. Mr. Morrison told Mr. Shanahan that he wanted to go to trial, but needed Mr. Shanahan to contact the codefendants, Ronnie Gooden and Donald LaGrone, to see if they were willing to testify on his behalf. He also told Mr. Shanahan that he wanted the hair samples tested that were collected by the police from the masks that were thought to have been worn during the robbery.
The final meeting was held the next day. Mr. Morrison will testify that Mr. Shanahan explained the plea agreement again and told Mr. Morrison that he did not have a defense. Mr. Morrison asserts that he asked Mr. Shanahan if he was able to speak with the co-defendants and test the hair samples, Mr. Shanahan told him that he had not. Mr. Morrison told Mr. Shanahan once again that he wanted to go to trial and he wanted Mr. Shanahan to speak with the co-defendants and test the hair samples. On the day of trial, Mr. Morrison will testify that Mr. Shanahan still had not looked into what he asked him to and told him once again that he did not have a defense. Mr. Morrison asserts that after he found out that Mr. Shanahan had failed to do anything Mr. Morrison asked him to, and most importantly, that Mr. Shanahan had not prepared a defense, Mr. Morrison felt that he had no other choice but to plead guilty. Mr. Morrison will testify at an evidentiary hearing, that he felt coerced into pleading guilty due to Mr. Shanahan's disregard to [sic] Mr. Morrison's investigation requests that he felt were vital to a defense in his case and Mr. Shanahan's failure to prepare a defense for trial.
Morrison attempts to distinguish his claim from one that his counsel was ineffective as a result of a failure to prepare. He presumably makes this distinction to avoid the rule discussed in Townsend v. State, 854 S.W.2d 496, 497 (Mo.App.1993), that a guilty plea generally waives any complaint about counsel's failure to investigate. Rather, he has alleged that his plea was involuntary because counsel coerced him into pleading by failing to prepare. Morrison's claim that he was coerced into pleading guilty is not waived by his entering a guilty plea. See Keener v. State, 790 S.W.2d 269, 270 (Mo.App.1990).
It is apparently Morrison's position that because he is not literally complaining of a failure to investigate, his amended motion was not subject to the general pleading requirement that he set forth factually what facts...
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