Routt v. State

• Decision Date: 19 December 2017
• Docket Number: No. ED 105132,ED 105132
• Citation: Routt v. State, 535 S.W.3d 812 (Mo. App. 2017)
• Parties: Jeremy S. ROUTT, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

535 S.W.3d 812

Jeremy S. ROUTT, Appellant,

v.STATE of Missouri, Respondent.

No. ED 105132

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: December 19, 2017

Gwenda R. Robinson, 1010 Market Street, Suite 1100, Saint Louis, MO. 63101, for appellant.

Karen L. Kramer, P.O. Box 899, Jefferson City, MO. 65102, for respondent.

Opinion

Angela T. Quigless, J.

Jeremy S. Routt("Movant") appeals from a judgment denying his Rule 24.035¹ post-conviction relief motion following an evidentiary hearing.Movant argues the motion court clearly erred in denying his post-conviction relief motion because sentencing counsel was ineffective for failing to investigate, subpoena, and call his stepsister to testify on his behalf at the sentencing hearing.Movant also argues for the first time on appeal that the plea court erroneously enhanced his stealing offense from a misdemeanor to a felony.Finding no error, we affirm.

Factual and Procedural Background

Movant was charged as a prior and persistent offender² with attempted first-degree robbery (Count I), in violation of Sections 569.020³and564.011; unlawful possession of a firearm (Count II), in violation of Section 571.070(Cum. Supp. 2010); stealing of a firearm (Count III), in violation of Section 570.030(Cum. Supp. 2009); and distribution of a controlled substance (Counts IV, V, and VI), in violation of Section 195.211(Cum. Supp. 2007).Counts I, II, and III alleged, in relevant part, that on June 4, 2013, Movant stole a nine-millimeter handgun, arranged to sell a half pound of marijuana to an undercover detective (the "Detective") for $2,500, and drove to meet the Detective with the intent to rob him.Counts IV, V, and VI alleged Movant knowingly sold more than five grams of marijuana to the Detective on three separate dates in May 2013.

Movant was represented by different public defenders at his guilty plea hearing and sentencing hearing.At his guilty plea hearing, Movant entered a blind plea to all counts.⁴Because Movant was a prior and persistent offender, he was subject to a range of punishment of five years to potential life imprisonment for Counts I, IV, V, and VI, and a range of one day to one year in the county jail or one to fifteen years' imprisonment plus the possibility of a fine up to $5,000 for Counts II and III.

I. Movant's Sentencing Hearing

Movant appeared at his sentencing hearing with sentencing counsel.⁵Movant's Sentencing Assessment Report ("SAR") indicated Movant was not eligible for a long-term drug treatment program but was eligible for a short-term program.Additionally, the SAR indicated Movant had prior convictions for second-degree robbery, armed criminal action, second-degree burglary, stealing, and receiving stolen property.

At the sentencing hearing, sentencing counsel called one witness, Movant's mother("Mother").Mother testified Movant, now twenty-four years old, first came in contact with the criminal justice system when he was nine years old due to behavioral issues related to his ADHD and bipolar disorder.When Movant was eleven years old, Mother turned him into the police because he was smoking marijuana.Movant also sold drugs and stole from his family members.

Mother testified mental illness runs in her family.Doctors prescribed several medications for Movant but nothing worked.Doctors recommended Movant attend an inpatient treatment center so he could be properly diagnosed and treated, but Mother could not afford for Movant to attend.Mother testified she turned to the legal system for help, but Movant was placed in a juvenile facility, and he never received medication or treatment.Mother testified Movant's mental disorders caused him to have a difficult time functioning and working, and Movant would tell her "how bad he just wanted to commit suicide because he couldn't handle how bad his brain spun."

Mother further testified Movant"needs truly to be put on medicine and have that levelize him ... if he ever has a chance to be an active part of his daughter's life, to be an active part of anything."Mother stated since Movant has been back in prison, he has taken accountability for his actions for the first time.Mother testified Movant"needs medicine.Somehow, someway.And he needs for it to be done properly."Mother further testified she was "just trying to get him help," and asked the court to address Movant's medical, treatment, and counseling issues.

Thereafter, the sentencing court stated it was concerned with the dangerous nature of Movant's attempted robbery of the Detective as well as his criminal history.The sentencing court acknowledged Mother's testimony, however noted that in the six-month period Movant was out of prison on parole for his prior felony convictions of second-degree robbery and armed criminal action, he committed the six felonies he pleaded guilty to in this case.The court stated it was not convinced a long-term drug treatment program would help Movant.The court expressed its concern regarding Movant's multiple prior felony convictions, and noted there was no guarantee that Movant would not commit additional crimes.Thus, the court stated any sympathy it felt for Movant did not overcome its obligation to protect society.

The court sentenced Movant to twenty years' imprisonment for Count I, ten years' imprisonment for Counts II and III, and fifteen years' imprisonment for Counts IV, V, and VI.The court ordered the sentences for Counts II–VI run concurrently with one another but consecutively with the sentence for Count I, for a total sentence of thirty-five years' imprisonment, based on Movant's prior criminal history and the fact that he committed an extremely dangerous felony while on parole.

When the sentencing court questioned Movant regarding assistance of counsel, Movant stated he was dissatisfied with sentencing counsel's performance.Movant stated he never met or communicated with counsel until three minutes before the sentencing hearing, and they never had a conversation about any potential witnesses who would testify on his behalf at the sentencing hearing.

II.Movant's Rule 24.035Post-Conviction Motion and Appeal

Movant timely filed a pro seRule 24.035motion for post-conviction relief.The motion court appointed post-conviction counsel, and counsel requested an additional thirty days to file an amended motion, which the motion court granted.Counsel timely filed an amended Rule 24.035 motion, alleging, in part, that sentencing counsel was ineffective for failing to investigate, subpoena, and call his stepsister ("Stepsister") to testify on his behalf at the sentencing hearing.Had sentencing counsel communicated with him more and asked him about potential witnesses, Movant argued he would have told counselhe wanted Stepsister to testify because Stepsister was the person "most familiar" with his "drug addiction and the difficulties that he has faced both due to his drug addiction and his untreated mental illness."Movant alleged Stepsister would have requested leniency, and would have testified Movant could be rehabilitated if he received adequate medication and treatment.Thereafter, the motion court entered a judgment denying Movant's motion without an evidentiary hearing.

Movant appealed the motion court's judgment.This Court entered its judgment in Routt v. State , 493 S.W.3d 904(Mo. App. E.D.2016)(" Routt I "), reversing the motion court's judgment and remanding the cause for an evidentiary hearing.Specifically, finding that sentencing counsel's decision not to call Stepsister was not reasonable trial strategy because Movant did not meet or communicate with counsel before the sentencing hearing, nor did they have a conversation about any potential witnesses.Id. at 912.Further that Stepsister could have been located through reasonable investigation, and she would have testified if called as a witness.Id.On the issue of whether Stepsister's testimony would have aided in Movant's defense, this Court concluded there was no way to determine whether her testimony would have been cumulative to matters fully developed by Mother's testimony absent an evidentiary hearing.Id. at 914.Thus, this Court found Movant demonstrated prejudice because there was a reasonable probability that had Stepsister testified, Movant would have received a lesser sentence and would have been placed in a drug treatment program.Id. at 915.

III.Movant's Evidentiary Hearing and the Motion Court's Judgment

The motion court held an evidentiary hearing in accordance with this Court's instructions on remand.At the hearing, Stepsister testified Movant has ADHD and suffers from bipolar disorder.Stepsister was unaware of whether Movant currently takes medication, however stated Movant has taken medication in the past, but it "made him seem very not himself[.]"Stepsister blames Movant's past behavioral issues on being prescribed the wrong combination of medication.Stepsister opined Movant could be medicated to the point that he could control his behavior, however admitted she did not have any training regarding medication or treatment for Movant's disorders.

Stepsister further testified she witnessed Movant use marijuana and take pills, including Adderall.She stated the drugs made him suicidal, argumentative, and erratic, and she believed Movant was addicted.Stepsister testified she believed "if he was given the chance to go to treatment and [learn] steps to control those behaviors, it would definitely improve his way of living."Stepsister described Movant as a "very loving, and a very loyal person, and he is very kindhearted.He's always there for us when we definitely need him."Stepsister opined that with treatment and support, Movant could return to society and be a law abiding citizen.

Following the evidentiary hearing, the motion court again denied Movant's post-conviction relief motion.The motion court found Stepsister's testimony was cumulative to Mother's testimony, and there was no...