Renick v. State, 012320 MOCAS, SD36140

Docket Nº:SD36140
Opinion Judge:GARY W. LYNCH, P.J.
Party Name:FRANK PETER RENICK, JR., Appellant, v. STATE OF MISSOURI, Respondent.
Judge Panel:NANCY STEFFEN RAHMEYER, J., WILLIAM W. FRANCIS, JR., J. CONCURS
Case Date:January 23, 2020
Court:Court of Appeals of Missouri
 
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FRANK PETER RENICK, JR., Appellant,

v.

STATE OF MISSOURI, Respondent.

No. SD36140

Court of Appeals of Missouri, Southern District, First Division

January 23, 2020

APPEAL FROM THE CIRCUIT COURT OF CAMDEN COUNTY Honorable Peggy D. Richardson, Judge

GARY W. LYNCH, P.J.

Frank Peter Renick, Jr. ("Movant") was charged with one count of statutory sodomy in the first degree (count 1) and two counts of child molestation in the first degree (counts 2 and 3). See sections 566.062 & 566.067.1 In accordance with a plea agreement to dismiss count 1, Movant pleaded guilty to counts 2 and 3 of child molestation and was sentenced to two concurrent ten year sentences. Movant timely filed an initial and an amended Rule 24.035 post-conviction relief ("PCR") motion. Following an evidentiary hearing, the motion court entered a judgment denying the amended motion. Movant now appeals that judgment alleging that the motion court clearly erred in not finding that he received ineffective assistance of counsel ("IAC") during his plea hearing and sentencing.

Movant presents two points on appeal. First, he claims the motion court clearly erred when it denied his PCR motion because plea counsel was ineffective "for leading [Movant] to believe that he would receive a sentence of probation and that a trial would be too costly. . . ." Second, Movant claims the motion court clearly erred because plea counsel was ineffective for "failing to explain to [Movant] the purpose of a Sentencing Assessment Report (SAR) and to present medical records. . . ." Finding no clear error, we affirm.

Applicable Legal Principles

Our review of the denial of a PCR motion is limited to whether the motion court's findings of fact and conclusions of law are "clearly erroneous."[2] Rule 24.035(k); Ross v. State, 335 S.W.3d 479, 480 (Mo. banc 2011) (quoting Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009)). The motion court's "findings and conclusions are clearly erroneous only if, after review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made." Roberts, 276 S.W.3d at 835. Movant bears the burden to prove the grounds asserted in his or her PCR motion by a preponderance of the evidence. Rule 24.035(i); McLaughlin v. State, 378 S.W.3d 328, 337 (Mo. banc 2012). "The motion court's findings are presumed correct." Davis v. State, 486 S.W.3d 898, 905 (Mo. banc 2016) (citing Johnson v. State, 406 S.W.3d 892, 898 (Mo. banc 2013)). An appellate court "defers to 'the motion court's superior opportunity to judge the credibility of witnesses.'" Davis, 486 S.W.3d at 905 (quoting Barton v. State, 432 S.W.3d 741, 760 (Mo. banc 2014). "The motion court's rejection of certain witness testimony as non-credible goes to whether Movant met his burden of demonstrating a claim for relief. . . ." Davis, 486 S.W.3d at 905 n.2.

To prevail on an IAC claim, the movant must demonstrate by a preponderance of the evidence that counsel failed to exercise the level of skill and diligence that a reasonably competent trial counsel would in a similar situation and the movant was prejudiced as a result of counsel's failure. Id. at 906; Strickland v. Washington, 466 U.S. 668, 688 (1984). In the context of a guilty plea, a movant "establishes prejudice due to ineffective assistance of counsel by demonstrating that a reasonable probability exists that, but for plea counsel's errors, the movant would not have entered a guilty plea and would have insisted on proceeding to trial." Jones v. State, 211 S.W.3d 210, 213 (Mo.App. 2007). If Movant fails to demonstrate that he or she was prejudiced by counsel's performance, we do not need to address or reach the question of whether counsel's performance was ineffective. Barnes v. State, 506 S.W.3d 407, 410 (Mo.App. 2016) (citing State v. Simmons, 955 S.W.2d 729, 746 (Mo. banc 1997)).

Factual and Procedural Background

By information, Movant was charged in count 1 with statutory sodomy and in counts 2 and 3 with child molestation. Movant retained attorney Andrew Lyskowski ("plea counsel") to represent him on these charges, including during his plea hearing and sentencing. In accordance with a plea agreement with the State, Movant entered "open" guilty pleas to child molestation on counts 2 and 3 in exchange for the State dismissing count 1. During the plea hearing, the State orally further agreed to limit its sentencing recommendation to the plea court to ten years in the Department of Corrections ("DOC").

During the plea hearing, Movant stated that, as alleged in count 2, he committed the class B felony of child molestation in the first degree on or about August 5, 2015, when he knowingly subjected M.W. to sexual contact by touching her breasts under her clothing when she was less than 14 years old. Movant also admitted that, as alleged in count 3, he committed the Class B felony of child molestation on or about September 19, 2014, when he knowingly subjected K.R. to sexual contact by touching her vagina with his hand through her clothing when she was less than 14 years old. The plea court informed Movant that the range of punishment for each felony was five to fifteen years imprisonment, which Movant stated he understood. Movant further stated that he understood he did not have to plead guilty, that threats or promises had not been made to coerce him into pleading guilty, and that he understood he waived certain of his constitutional rights in order to enter a guilty plea. Movant's written, signed plea petition was admitted into evidence. The court accepted Movant's guilty pleas, sentenced Movant to ten years imprisonment on each count to be served concurrently, and entered judgment accordingly.

After delivery to the DOC, Movant timely filed a Rule 24.035 Motion to Vacate, Set Aside, or Correct Judgment. Retained counsel for Movant thereafter timely filed an amended motion (the "PCR motion"). The PCR motion asserted three IAC claims of which only the first and third are relevant to this appeal. The first IAC claim alleged that "[p]lea counsel affirmatively informed Movant that he would receive probation" and that plea counsel told Movant "he would need to pay a large amount of money for trial and that he should plead guilty." The third IAC claim alleged that "[p]lea counsel advised Movant to waive his Sentencing Assessment Report. Movant did not fully understand such waiver and Plea counsel failed to provide the Court with...

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