Sprofera v. State, WD 82443

CourtCourt of Appeal of Missouri (US)
Writing for the CourtAlok Ahuja, Judge
Citation613 S.W.3d 822
Parties Joseph B. SPROFERA, Appellant, v. STATE of Missouri, Respondent.
Decision Date27 October 2020
Docket NumberWD 82443

613 S.W.3d 822

Joseph B. SPROFERA, Appellant,
v.
STATE of Missouri, Respondent.

WD 82443

Missouri Court of Appeals, Western District.

Filed: October 27, 2020
Motion for Rehearing and/or Transfer to Supreme Court Denied November 24, 2020
Application for Transfer Denied January 26, 2021


Damien S.B. De Loyola, Kansas City for appellant.

Shaun Mackelprang, Jefferson City for respondent.

Before Division Four: Cynthia L. Martin. C.J., and Alok Ahuja and Thomas N. Chapman, JJ.

Alok Ahuja, Judge

Following a jury trial in the Circuit Court of Clay County, Joseph Sprofera was convicted of first-degree statutory rape in violation of § 566.032.1 The circuit court found Sprofera to be a prior offender under § 558.016, and sentenced him to life imprisonment, to be served consecutively to his sentence on a prior 2010 conviction. On appeal, we affirmed Sprofera's conviction. We reversed the circuit court's imposition of consecutive sentencing, however, and its finding that Sprofera was a prior offender. The case was remanded "with instruction to the trial court to correct its written judgment to reflect concurrent sentencing and to exclude any reference to a prior offender classification." State v. Sprofera , 427 S.W.3d 828, 839 (Mo. App. W.D. 2014).

Following the circuit court's entry of an amended judgment, Sprofera sought post-conviction relief under Supreme Court Rule 29.15. The circuit court denied relief after an evidentiary hearing. Sprofera appeals. He claims that his trial counsel provided ineffective assistance (1) by failing to submit an instruction for the lesser-included offense of second-degree statutory rape; and (2) by failing to object to the trial court's prior-offender finding, thereby forfeiting Sprofera's right to jury-recommended sentencing.

We affirm.

Factual Background2

On March 2, 2012, Sprofera was charged by a substitute information with

613 S.W.3d 825

first-degree statutory rape in violation of § 566.032. The information alleged Sprofera had sexual intercourse with Victim between July 1, 2002, and August 31, 2002, and that Victim was less than fourteen years old at the time of the offense. Victim was Sprofera's adopted daughter.

At trial, Victim testified that when she was six or seven years old, Sprofera began touching her inappropriately as she slept. She testified that the abuse worsened over time, although there were several years during which Sprofera did not touch her. Victim testified that in the summer before she started the eighth grade – which she believed to be in 2002 – Sprofera raped her for the first time. Victim testified that another incident of sexual intercourse occurred a few days later, and that it happened on multiple additional occasions. Victim testified that her birthdate was July 7, 1989, and that in 2002 she would have been thirteen years old. Victim testified that, on the first occasion on which Sprofera raped her, her mother was away at a teaching conference. Victim's mother testified at trial that as an elementary school teacher she typically attended overnight teaching conferences or retreats before the start of a new school year.

Prior to the commencement of trial, the circuit court found Sprofera to be a prior offender based on a September 1, 2010 conviction for second-degree statutory sodomy. The jury found Sprofera guilty of first-degree statutory rape, the only offense submitted to it. The court sentenced Sprofera to life imprisonment but did not orally pronounce whether the sentence would be served consecutively or concurrently to the sentence for Sprofera's 2010 conviction. In its written judgment, however, the court specified that Sprofera's new life sentence would be served consecutively to his sentence for the 2010 conviction.

We affirmed Sprofera's conviction on direct appeal. We held, however, that Sprofera's sentence for the current offense was required to run concurrently to the sentence for his 2010 conviction, because the circuit court had not specified that the sentences would run consecutively when it orally pronounced Sprofera's sentence in this case. Sprofera , 427 S.W.3d at 838. We also held that the circuit court erred in finding Sprofera to be a prior offender, because the finding of guilt in Sprofera's 2010 conviction did not occur prior to the date of the commission of the present offense, as required by § 558.016.6. Id. at 839. We held that, although the prior offender finding was erroneous and Sprofera had been denied the opportunity for jury sentencing as a result, this did not require reversal because Sprofera had waived his right to jury sentencing. Id. We remanded the case to the circuit court to issue an amended judgment deleting any reference to consecutive sentencing, or to Sprofera's purported classification as a prior offender. Id.

Following the entry of an amended judgment, Sprofera timely filed a pro se motion for post-conviction relief pursuant to Rule 29.15, and his appointed counsel filed a timely amended motion. In his amended motion, Sprofera raised five claims of ineffective assistance of counsel. As relevant here, Sprofera argued that his trial counsel was ineffective for failing to request a lesser-included-offense instruction for second-degree statutory rape; and for failing to object to the circuit court's prior offender finding, or to demand that Sprofera be afforded the right to jury sentencing.

613 S.W.3d 826

The circuit court denied relief following an evidentiary hearing. With regard to counsel's failure to request a lesser-included-offense instruction, the court first noted that "[g]enerally, allegations of instructional error are matters for review on direct appeal, not in post-conviction proceedings." The court also held that Sprofera had failed to establish that he would have been entitled to a lesser-included-offense instruction:

[O]n direct appeal, it was clear [Sprofera] acknowledged there was testimony from [Victim] that she was thirteen years of age at the time of the offense. This portion of testimony by [Victim] ended with [Victim] stating she was "confident" she was thirteen at the time of the offense, and [Sprofera] has not shown evidence otherwise supporting a lesser included instruction.

With respect to Sprofera's claim regarding the prior-offender finding, and the consequent forfeiture of his right to jury sentencing, the circuit court relied on our holding in Sprofera's direct appeal that no manifest injustice had resulted from the erroneous prior-offender finding, and that Sprofera had waived his right to jury sentencing. The court also held that Sprofera had failed to demonstrate that he was prejudiced by the denial of jury sentencing:

[Sprofera] makes the conclusory assertion that the outcome would have been different. Should the jury have sentenced [Sprofera], the history and character of [Sprofera] would have been admissible, and the prior case [in which he was convicted in 2010 of another sexual offense involving a minor victim] could have been conveyed to the jury, and as such, [Sprofera] could have been sentenced to life without parole. [Sprofera] assumes the outcome would have been different without any support that the outcome would have been better, rather than worse.

Sprofera appeals.

Standard of Review

This Court reviews a motion court's ruling on a Rule 29.15 postconviction motion for the limited determination of whether the findings of fact and conclusions of law are clearly erroneous. Meiners v. State , 540 S.W.3d 832, 836 (Mo. banc 2018) (citing Rule 29.15(k)). The motion court's findings and conclusions are clearly erroneous only if a review of the entire record leaves this Court "with a definite and firm impression that a mistake has been made." Id.

Miller v. State , 558 S.W.3d 15, 19–20 (Mo. 2018) ; see also McKay v. State , 520 S.W.3d 782, 785 (Mo. 2017).

"To prevail on a claim of ineffective assistance of counsel, a post-conviction movant must satisfy the two-prong test set out in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." McFadden v. State , 553 S.W.3d 289, 298 (Mo. 2018). First, the movant must demonstrate that "counsel failed to exercise the level of skill and diligence that a reasonably competent counsel would in a similar situation." Id. (citation and internal quotation marks omitted). To do so, a movant must overcome a "strong presumption that counsel's conduct was reasonable and effective." Zink v. State , 278 S.W.3d 170, 176 (Mo. 2009).

Second, a movant must show prejudice resulting from counsel's constitutionally deficient performance. Id. at 175. Generally, "[p]rejudice occurs when there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Anderson v. State , 564 S.W.3d 592, 601 (Mo. 2018) (citation and internal quotation marks omitted).

613 S.W.3d 827

"Both [the performance and prejudice] prongs must be shown by a preponderance of the evidence in order to prove ineffective assistance of counsel." McFadden , 553 S.W.3d at 298 (citation and internal quotation marks omitted). "The court may not need to address both prongs if the movant has failed to make a sufficient showing on one....

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1 practice notes
  • Haggerman v. State, WD 84144
    • United States
    • Court of Appeal of Missouri (US)
    • December 28, 2021
    ...prejudice where a defendant alleges that counsel incompetently advised the defendant to waive a jury trial. See Sprofera v. State , 613 S.W.3d 822, 832-33 (Mo. App. W.D. 2020). In this case, however, Haggerman has made no claims whatsoever that the outcome of his trial would have been diffe......
2 cases
  • Haggerman v. State, WD 84144
    • United States
    • Court of Appeal of Missouri (US)
    • December 28, 2021
    ...prejudice where a defendant alleges that counsel incompetently advised the defendant to waive a jury trial. See Sprofera v. State , 613 S.W.3d 822, 832-33 (Mo. App. W.D. 2020). In this case, however, Haggerman has made no claims whatsoever that the outcome of his trial would have been diffe......
  • Haggerman v. State, WD84144
    • United States
    • Court of Appeal of Missouri (US)
    • December 28, 2021
    ...prejudice where a defendant alleges that counsel incompetently advised the defendant to waive a jury trial. See Sprofera v. State, 613 S.W.3d 822, 832-33 (Mo. App. W.D. 2020). In this case, however, Haggerman has made no claims whatsoever that the outcome of his trial would have been differ......

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