State v. Woolery
| Docket Number | WD85530 |
| Decision Date | 27 June 2023 |
| Parties | STATE OF MISSOURI, Respondent, v. ROBERT A. WOOLERY, Appellant. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Pettis County, Missouri The Honorable Robert L. Koffman, Judge
Before W. Douglas Thomson, Presiding Judge, and Lisa White Hardwick and Karen King Mitchell, Judges
Robert Anthony Woolery appeals from a judgment convicting him of two counts of delivery of a controlled substance under § 579.020.[1] He raises five points on appeal. In his first two points, he argues the trial court plainly erred in failing to appoint counsel at his arraignment (Point I) and initial appearance (Point II). For his third point, Woolery asserts the court erred in failing to preserve a transcript or recording of his arraignment, thereby denying him meaningful appellate review of his right-to-counsel claim. In his fourth point, Woolery contends that the court plainly erred by misapplying the law when the court sentenced him to imprisonment rather than ordering a mental examination. Finally, for his fifth point, Woolery claims the court erred in denying his motion to suppress and allowing admission of evidence that he possessed and sold a controlled substance because the detectives lacked authority to respond to emergency situations outside the city limits of Sedalia. Finding no error, we affirm.
On November 10, 2021, the State charged Woolery by indictment in the circuit division with two counts of the class C felony of delivery of a controlled substance.
The State alleged that, on June 29, 2021, and again on July 12 2021, Woolery knowingly delivered methamphetamine to a confidential informant (CI) working with the Sedalia Police Department. A warrant was issued for Woolery's arrest and bond was set at "$ 200,000, c/s." The court arraigned Woolery on November 15, 2021; he appeared via video without counsel and pleaded not guilty. There is no transcript or recording of his arraignment.
Counsel entered an appearance on Woolery's behalf on November 22 2021, and moved for bond reduction on December 3, 2021. On December 10, 2021, the court received evidence and heard argument on the motion, which the court denied.
Woolery waived his right to jury trial and was tried by the court. The day before trial, Woolery filed a motion to suppress, on constitutional grounds, any evidence that he possessed and sold a controlled substance, arguing that the Sedalia detectives lacked jurisdiction to arrange drug buys outside the city limits. The court took the motion with the case.
In 2021, the Crime Resolution Unit of the Sedalia Police Department developed a plan to focus on low-to-mid-level drug dealers using vetted confidential informants; Woolery was identified as a subject of interest in the investigation. On June 29, 2021, and again on July 12, 2021, the unit organized a "controlled buy" from Woolery through the CI,[2] who had informed Detective Neva Overstreet that he could purchase drugs from "Tony." Through conversation and presentation of a police department booking photo, the CI identified Woolery as "Tony." The CI exchanged text messages with Woolery to set up the buys. On both occasions, after searching the CI's person and vehicle and issuing a recording device, Detective Overstreet and her colleagues followed the CI to the location where the CI and Woolery agreed to meet. The detectives observed the CI's vehicle pull into a driveway on Carlene Drive; Woolery got in the car, and it backed out of the driveway. The CI drove down Carlene Drive, turned north on Washington Street and then turned west on 32nd Street and traveled for a short distance before returning along the same route to the driveway on Carlene Drive, where Woolery exited the vehicle.[3] After each buy, the CI met up with the detectives for a debriefing. The CI gave Detective Overstreet a bag containing a substance that tested positive for methamphetamine. And the exchange occurred "after they started their route away from the drive," but the record does not indicate exactly where the vehicle was located when the exchange occurred.[4] Detective Overstreet did not make any arrests in relation to these drug buys or perform any other "enforcement" activities; she only conducted surveillance and secured evidence.
The court found Woolery guilty on both counts and issued findings of fact and conclusions of law denying Woolery's motion to suppress Detective Overstreet's testimony that Woolery was in possession of a controlled substance. The court concluded that the controlled buys did not violate Woolery's constitutional rights because the detectives were authorized to conduct the operations in Sedalia, which included 32ndStreet, and Woolery voluntarily got into the CI's car and drove to 32nd Street to conduct the transactions.
At sentencing, the court heard testimony from Woolery and his father. The court sentenced Woolery as a persistent drug offender to fifteen years' imprisonment on each count, with the sentences to run concurrently. After sentencing, the court questioned Woolery about the performance of trial counsel. During that exchange, Woolery indicated that counsel had failed to request a mental examination, but Woolery did not explain why doing so would have been necessary nor did he describe any history of mental illness that would have supported such a request. Woolery appeals.
Woolery raises five points on appeal. In his first two points, he argues the trial court plainly erred in failing to appoint counsel at his arraignment (Point I) and initial appearance (Point II). For his third point, Woolery asserts the court erred in failing to preserve a transcript or recording of his arraignment, thereby denying him meaningful appellate review of his right-to-counsel claim. In his fourth point, Woolery contends that the court plainly erred by misapplying the law when the court sentenced him to imprisonment rather than ordering a mental examination. Finally, for his fifth point Woolery claims the court erred in denying his motion to suppress and allowing evidence that he possessed and sold a controlled substance, because the detectives lacked authority to respond to emergency situations outside the city limits of Sedalia.
Woolery acknowledges the claims he raises in Points I, II, and IV are not preserved for appellate review, and he requests plain error review of those claims under Rule 30.20.[5] We address Points I and II together.
In his first two points, Woolery argues the trial court plainly erred in failing to appoint counsel at his arraignment (Point I) and initial appearance (Point II).[6] Woolery bases both claims of error on Rule 31.02(a), which states, in pertinent part:
In all criminal cases the defendant shall have the right to appear and defend in person and by counsel. If any person charged with an offense, the conviction of which would probably result in confinement, shall be without counsel upon his first appearance before a judge, it shall be the duty of the court to advise him of his right to counsel, and of the willingness of the court to appoint counsel to represent him if he is unable to employ counsel. Upon a showing of indigency, it shall be the duty of the court to appoint counsel to represent him. If after being informed as to his rights, the defendant requests to proceed without the benefit of counsel, and the court finds that he has intelligently waived his right to have counsel, the court shall have no duty to appoint counsel.
Woolery argues that the arraignment/initial appearance and bail hearing are critical stages of the criminal proceedings, and the failure to appoint counsel and/or certify compliance with Rule 31.02(a) resulted in manifest injustice and a miscarriage of justice, thereby violating his constitutional right to counsel.[7] Rule 31.02(a) does not support Woolery's claims that the court erred in failing to appoint counsel at his arraignment/initial appearance. The rule requires simply that, upon the first appearance before a judge by a person charged with a crime that could result in incarceration, the court advise the person of his right to counsel and the court's willingness to appoint counsel if the person cannot afford one. The rule does not address arraignment nor does it require suspension of an initial appearance until counsel has been appointed. In fact, the rule expressly contemplates that a defendant may "be without counsel upon his first appearance." Rule 31.02(a). Here, counsel entered an appearance seven days after the arraignment/initial appearance, with no intervening court appearances by Woolery, which strongly suggests that, after being informed at arraignment of his right to counsel, Woolery requested counsel. And, upon a showing of indigency and in keeping with Rule 31.02(a), the court appointed counsel for him. Therefore, there was no violation of Rule 31.02(a).
Woolery also relies on the Sixth Amendment. "[T]he Sixth Amendment guarantees a defendant the right to have counsel present at all critical stages of the criminal proceedings." State ex rel. Mo. Pub. Def. Comm'n v. Waters, 370 S.W.3d 592, 606 (Mo. banc 2012) (quotingMissouri v. Frye, 566 U.S. 134, 140 (2012)). Critical stages are "those pretrial procedures that would impair defense on the merits if the accused is required to proceed without counsel." Gerstein v. Pugh, 420 U.S. 103, 122 (1975). "[W]hat makes a stage critical is what shows the need for counsel's presence." Rothgery v. Gillespie Cnty., 554 U.S. 191, 212 (2008).
Woolery contends that both the...
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