Sims v. State
| Decision Date | 26 October 2021 |
| Docket Number | WD 84050 |
| Citation | 637 S.W.3d 425 |
| Parties | Zeno SIMS, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Jeffrey C. Esparza, Kansas City, for appellant.
Daniel N. McPherson, Jefferson City, for respondent.
Before Division Three: Lisa White Hardwick, Presiding Judge, Gary D. Witt and Edward R. Ardini, Jr., Judges
Zeno Sims appeals from the judgment denying his Rule 24.035 motion after he pleaded guilty to second-degree murder, first-degree assault, and two counts of armed criminal action. He contends the motion court clearly erred in denying him postconviction relief because he established that: (1) the sentencing court exceeded its authority by directing that his state sentence be served consecutively to his federal sentence; and (2) defense counsel was ineffective for failing to inform the sentencing court that the federal district court had the authority to determine whether he must serve his federal sentence and a state sentence, which had yet to be imposed, concurrently or consecutively. For reasons explained herein, we affirm.
On June 10, 2000, Baron Kelley rear-ended Sims's car in a traffic accident in Kansas City. A verbal altercation between the two men ensued, during which Sims shot and killed Deantreia Ashley and shot Kelley multiple times, wounding him. The State charged him as a prior offender with first-degree murder, two counts of first-degree assault, and three counts of armed criminal action.
Sims entered a guilty plea on July 17, 2001. During the plea hearing, the prosecutor told the court that, pursuant to the parties’ plea agreement, the State would reduce the first-degree murder charge to second-degree murder and would dismiss one of the assault counts and one of the armed criminal action counts. The parties also agreed that Sims would receive a total prison sentence of no less than 10 years and no more than 30 years. The court questioned Sims about the agreement, including the possible sentence that he could receive, and he said that he understood. The court accepted Sims's plea and deferred sentencing until a sentencing assessment report could be prepared.
Before Sims was sentenced for those offenses, he entered a guilty plea in the United States District Court for the Western District of Missouri on September 28, 2001, to a charge of distribution of five grams or more of a mixture of a substance containing cocaine base. On December 4, 2001, the federal court sentenced Sims to 235 months in prison for that offense. The federal court ordered that this sentence be served concurrently with the sentence yet to be imposed on Sims's state offenses.
On December 28, 2001, the circuit court held a sentencing hearing on Sims's state offenses. Before imposing sentence, the court informed the attorneys that it did not believe that the federal court had the authority to dictate the sentence that the state court could impose. Defense counsel agreed with this statement. The prosecutor further argued that the federal court was "powerless to determine what the final sentencing judge's determination is with respect to concurrent or consecutive sentences." The circuit court sentenced Sims to serve 30 years in prison on each count, with those sentences to run concurrently with each other and consecutively to the sentence imposed on his federal offense.
Sims was delivered to the Federal Bureau of Prisons, which attempted to transfer him to state custody so that he could begin serving the state and federal sentences concurrently. Sims v. Chester , 446 Fed. App'x 128, 129 (10th Cir. 2011). Missouri refused to take custody of Sims until he completed his federal sentence, however. Id. Sims then filed several unsuccessful petitions for a writ of habeas corpus seeking to be transferred from the Federal Bureau of Prisons to the Missouri Department of Corrections so that he could serve his state sentence concurrently with his federal sentence. See id. (). On March 20, 2013, Sims filed a petition for writ of mandamus in the Missouri Supreme Court asking that the Court direct that his state sentence run concurrently with his federal sentence and that he be awarded credit on his state sentence for any time already served on his federal sentence. The Supreme Court denied his petition. See Casenet entries for State ex rel. Sims v. Dep't of Corr. , No. SC93228.
After serving his federal sentence, Sims was delivered to the custody of the Missouri Department of Corrections on September 15, 2018, to begin serving his state sentence. Shortly thereafter, he filed a pro se Rule 24.035 motion, which was later amended by appointed counsel. In his amended motion, Sims alleged, inter alia , that the circuit court lacked the power to sentence him to serve his state sentence consecutively to his federal sentence because the federal court directed that the sentences run concurrently. Sims also alleged that defense counsel was ineffective for failing to research and present the argument that the federal court's determination that the federal sentence should be served concurrently with the yet-to-be-imposed state sentence was controlling.
An evidentiary hearing was held, during which Sims and defense counsel testified. The motion court subsequently entered its judgment denying Sims's Rule 24.035 motion. Sims appeals.
We review the denial of a post-conviction motion for clear error. Rule 24.035(k). The motion court's findings and conclusions are clearly erroneous only if a review of the entire record leaves us with a definite and firm impression that a mistake was made. Swallow v. State , 398 S.W.3d 1, 3 (Mo. banc 2013). We will affirm the motion court's judgment if it is sustainable on any ground supported by the record. Id.
In Point I, Sims contends the motion court clearly erred in denying his claim that the circuit court exceeded its authority by directing that his state sentence be served consecutively to his federal sentence. He argues that the federal district court's order that the sentences be served concurrently was binding on the state circuit court.
Both state and federal courts have the authority to decide whether a sentence should run concurrently with or consecutively to a defendant's other sentences. Mosby v. State , 236 S.W.3d 670, 679 (Mo. App. 2007) ; Setser v. United States , 566 U.S. 231, 132 S.Ct. 1463, 182 L.Ed.2d 455 (2012). In Setser , the United States Supreme Court held that the federal district court's authority includes the discretion to decide whether a federal sentence will run concurrently with or consecutively to a state sentence that has not yet been imposed. 566 U.S. at 244-45, 132 S.Ct. 1463. In that case, Setser was on probation for a state drug offense when the state charged him with another drug offense and moved to revoke his probation. Id. at 233, 132 S.Ct. 1463. A federal grand jury then indicted him on a federal drug offense. Id. The district court sentenced Setser first and ordered that his sentence run consecutively to any anticipated state sentence imposed for the probation violation but concurrently with any anticipated state sentence imposed on the new drug charge. Id. The state court then sentenced him on both the probation violation and the new drug charge. Id. Setser appealed his federal sentence, asserting, in part, that the district court did not have the authority to decide whether a federal sentence should run consecutively or concurrently to an anticipated state sentence. Id. at 234, 132 S.Ct. 1463.
On appeal to the United States Supreme Court, Setser and the Government argued that, when a state sentence has not been imposed at the time of the district court's sentencing, the authority to run the federal sentence concurrently with or consecutively to the state sentence lies not with the district court but with the Federal Bureau of Prisons after the federal sentence has been imposed. Id. at 235, 132 S.Ct. 1463. The Supreme Court disagreed, finding that federal sentencing authority lies with the district court, and, pursuant to common law, this authority includes the discretion to decide at the time of the federal sentencing hearing whether a federal sentence should run concurrently with or consecutively to a yet-to-be-imposed state sentence. Id. at 235-243, 132 S.Ct. 1463.1
In so holding, the Court rejected Setser's and the Government's argument that allowing the district court, rather than the Federal Bureau of Prisons, to make the concurrent-vs.-consecutive decision when the district court does not have before it all of the information about the anticipated state sentence would be contrary to principles of federalism. Id. at 241, 132 S.Ct. 1463. To explain that it is, in fact, consistent with principles of federalism, the Court discussed in practical terms how the federal court's and state court's decisions regarding concurrent or consecutive sentences fit together:
In our American system of dual sovereignty, each sovereign—whether the Federal Government or a State—is responsible for "the administration of its own criminal justice system." [Oregon v. ] Ice , 555 U.S. [160,] 170, 129 S.Ct. 711, 172 L.Ed.2d 517 [(2009)]. If a prisoner like Setser starts in state custody, serves his state sentence, and then moves to federal custody, it will always be the Federal Government—whether the district court or the Bureau of Prisons—that decides whether he will receive credit for the time served in state custody. And if he serves his federal sentence first, the State will decide whether to give him credit against his state sentences without being bound by what the district court or the Bureau said on the matter. Given this...
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