Shoate v. State

• Decision Date: 27 June 2017
• Docket Number: WD 79646.
• Parties: Harvey L. SHOATE, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

529 S.W.3d 869

Harvey L. SHOATE, Appellant,

v.STATE of Missouri, Respondent.

WD 79646.

Missouri Court of Appeals, Western District.

OPINION FILED: June 27, 2017

Motion for Rehearing and/or Transfer to Supreme Court Denied August 1, 2017

Application for Transfer to Supreme Court Denied October 31, 2017

S. Kathleen Webber, Assistant Appellate Defender, Kansas City, MO, Attorney for Appellant.

Joshua D. Hawley, Attorney General, and Mary H. Moore, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondent.

Before Division Two: Thomas H. Newton, Presiding Judge, and James Edward Welsh and Karen King Mitchell, Judges

Karen King Mitchell, Judge

Harvey Shoate, Jr., appeals, following an evidentiary hearing, from the grant of his Rule 24.035¹ motion for post-conviction relief. Though Shoate's sentences were vacated and the motion court awarded him a new sentencing hearing, Shoate argues that one of the motion court's findings was clearly erroneous and that the relief awarded was too broad. Because the right to appeal is limited to parties that are aggrieved by a lower court's judgment and Shoate is not aggrieved, we dismiss this appeal.

Background

Shoate was charged, as a persistent felony offender, with one count of first-degree involuntary manslaughter and three counts of second-degree assault after he drove with a blood alcohol content of .226 and caused a collision between his vehicle and that of the Godding family, resulting in the death of Gregory Godding (the father) and severe injuries to Donna Godding (the mother) and the two Godding children. Shoate had been released on parole from a prior incarceration just 36 hours before the collision with the Godding vehicle.

Shoate decided to plead guilty to the charges. At the plea hearing, the court discussed the existence of a plea agreement with Shoate:

Q My understanding the plea agreement—there is a basic plea understanding which is you're going to plead guilty to all of the charges and that sentencing will be deferred, and it will be left totally to me to make my best judgment.

A Yes.

Q And the only agreement is the sentences will run concurrently with each other. In other words running all at the same time; do you understand that?

A Yes, sir.

The court then advised Shoate of the various rights attendant to a trial that he was relinquishing through his guilty plea, as well as the range of punishment for his charged crimes. Shoate acknowledged understanding all of it and reiterated his intent to plead guilty. Shoate denied any threats, coercion, or promises inducing his pleas and acknowledged that he was pleading guilty of his own free will because he was, in fact, guilty as charged. Shoate expressed satisfaction with plea counsel and denied having any complaints. The court accepted Shoate's guilty pleas, ordered a Sentencing Assessment Report (SAR), and deferred the matter for sentencing.

At the sentencing hearing, the court received victim-impact testimony from Donna Godding, one of the two Godding children, Gregory Godding's mother, and Gregory Godding's cousin, as well as mitigation evidence from Shoate's fiancée and her daughter, Shoate's neighbor, and Shoate's mother, along with a statement from Shoate. The court also received the SAR, which indicated that Shoate had a total of ten prior felony convictions—four of which involved driving while intoxicated, and suggested a sentence of twenty-five to thirty years. The State argued for a twenty-five-year sentence on manslaughter, concurrent with ten-year sentences on each assault, specifically noting that Shoate would be required to serve at least 85% of the manslaughter sentence.

In mitigation, Plea Counsel argued that sentences of twenty-five or thirty years should be reserved for those who intentionally take a life and, while Shoate's actions were reckless and irresponsible, he never intended to take a life. Plea Counsel acknowledged that Shoate deserved imprisonment of some kind but also a chance for treatment and rehabilitation. Plea Counsel then proposed "a creative way to satisfy everybody":

I came up with a structure, and I would like to propose it to Your Honor. If we could give him the minimum on the greatest charge—on the enhanced B felony, give him the minimum on that, but then run consecutive all the vehicular assaults, the Cs, which have the ability to be charged, I believe, up to 15, the court has discretion to do what they want, and run those with a suspended execution of sentence consecutive so that Mr. Shoate can go out, do what he's got to do, and then come out.

The court then pronounced sentence, along with its rationale for the sentence it was imposing:

In the State of Missouri under this new statute, if you kill someone in a car accident, in some situations it is an 85 percent crime. This case that he faces is an 85 percent crime.

So there are various ways to get at sentences, but if you give a sentence of 25 years on the underlying offense, it's a much different sentence than if you give them 25 years somewhere else.

25 years on the underlying offense would mean that he would serve 85 percent of that day for day before he's released. He would have a little time on parole afterwards.

If you give him a sentence under another statute like, for example, the assault statutes that apply to the mother and the two children, those are not 85 percent sentences, and he can be subject to parole on those sentences, which means he would be subject to supervision. If he violated his parole, he would then be subject to go back on those sentences and his supervision would be longer.

...

I think that the integrity of the system—I think when you have this kind of carnage and you have the record of Mr. Shoate, it has to be a significant sentence. The dignity of the system requires it.

By the same token, I'm not sure to have him have no hope of parole ever or at least for an extended period of time, whether that's necessarily the right thing to do either. So here is what I have done, and I'll explain to you what it is when I'm done.

As relates to Count 1, I'm going to sentence him to 12 years in the Missouri Division of Adult Institutions. Further, on Counts 2, 3, and 4 I'm going to sentence him to 12 years in the Missouri Division of Adult Institutions. Counts 2, 3, and 4 shall run concurrently with each other, but they will run consecutively to the sentence imposed in Count 1 for a total of 24 years.

...

The sentence I have imposed, if there is any question about it, he's received a 24-year sentence of which he is not eligible for parole until after 85 percent of 12 years. That's the sentence that I have imposed, and that's the meaning of those sentences.

The court advised Shoate of his post-conviction rights, and Shoate acknowledged understanding them.

Shoate subsequently filed a timely pro se Rule 24.035 motion, arguing that his sentence was excessive because the various terms were not all run concurrently and that Plea Counsel was ineffective for not correcting the court's error in running one of the sentences consecutively, contrary to the plea agreement. Appointed counsel filed an amended motion, raising three new claims of ineffective assistance of plea counsel and including six pro se claims of error. The claims asserted in the amended motion were as follows:

Claim 8(A) – Ineffective assistance of plea counsel "for failing to investigate, prepare and present a defense that the rental car [Shoate was driving] was defective."

Claim 8(B) – Ineffective assistance of plea counsel for misrepresenting to Shoate "that [he] would not be sentenced to more than 12 years' imprisonment."

Claim 8(C) – Ineffective assistance of plea counsel "for failing to correct mistaken mandatory minimum for second-degree assault in SAR/inform the court of 80% mandatory minimum."²

Pro Se Claim #1 – "Plea counsel ... pressured and coerced Movant into pleading guilty."

Pro Se Claim #2 – "Plea counsel ... abandoned Movant by neglecting his case and making contact with him only three to four times throughout his representation."

Pro Se Claim #3 – "Plea counsel ... was not qualified to represent Movant on the offenses with which he was charged."

Pro Se Claim #4 – "Plea counsel ... wanted Movant's friend to testify falsely on his behalf about Movant's alcohol use on the date of the incident."

Pro Se Claim #5 – "Counsel [who] initially represented Movant ... also worked with the deceased victim's cousin, Bert Godding, who testified at Movant's sentencing."

Pro Se Claim #6 – "Movant's sentence is excessive."

The amended motion requested an evidentiary hearing, and included the following request for relief:

REQUEST FOR RELIEF

After this Court holds an evidentiary hearing, Movant requests that this Court vacate the judgments and sentences in State v. Harvey L. Shoate , case no. 1016-CR03102, and set the case for a jury trial.

The motion court held an evidentiary hearing, wherein it received testimony from Plea Counsel and Shoate. At the hearing, Shoate waived Claim 8(A), and then presented evidence on the remaining claims. During the hearing, the facts that the plea agreement was for concurrent sentences and that one of Shoate's actual sentences was ordered to run consecutively was repeatedly addressed by both the attorneys and the witnesses. When asked about the reason for the discrepancy, Plea Counsel stated:

I believe the reason would be—beyond on its face in the transcript what his reasoning was, I can speculate as to his intent.

...

[I]t seems like the Judge—despite the fact that he acknowledged the plea agreement—attempted to modify his sentence in a way to avoid Harvey from getting additional time through mandatory [minimum] sentencing.

Shoate, himself, testified that, had he known he might receive a consecutive sentence, he would not have pled guilty but would have pursued trial. When asked about Pro Se Claim #6 (claiming that Shoate's sentence was excessive), Shoate testified that his claim was based on Plea Counsel's failure to either object to the...