Wagoner v. State, 27603.
| Decision Date | 11 July 2007 |
| Docket Number | No. 27603.,27603. |
| Citation | 240 S.W.3d 159 |
| Parties | Richard A. WAGONER, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent. |
| Court | Missouri Court of Appeals |
Bryan Dale Scheiderer, Rolla, MO, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Stephanie L. Wan, Asst. Atty. Gen., Jefferson City, MO, for respondent.
Richard A. Wagoner (Wagoner) appeals from an order denying his amended Rule 24.035 motion to set aside or vacate his judgment and sentence for child molestation in the first degree. See § 566.067.1 The motion alleged, inter alia, that Wagoner's guilty plea was involuntary because: (1) plea counsel was ineffective for failing to contact a witness who would have refuted the account of events given by the child victim and her mother; and (2) the record contained an insufficient factual basis to establish the mental element required to commit the crime of child molestation in the first degree. Following an evidentiary hearing, the motion court denied relief. We affirm.
On February 25, 2004, a complaint was filed against Wagoner in the Circuit Court of Phelps County, Missouri. The complaint alleged that Wagoner had committed statutory sodomy and child molestation in the first degree. See §§ 566.062, 566.067. These crimes, which involved a four-year-old female named C.L.M. (Victim), allegedly occurred between December 15, 2003 and February 23, 2004. A warrant was issued for Wagoner's arrest.
Wagoner was quickly taken into custody and incarcerated in the Phelps County Jail. He had obtained his G.E.D. and could read and write. On February 27, 2004, he voluntarily wrote and signed a letter to Victim apologizing for having "sexual contact" with her. Wagoner wrote another letter to Victim's mother, A.M., in which he stated: This last statement referred to what Wagoner had done to Victim.2
Chad Picker (Picker) was the public defender appointed to represent Wagoner. Wagoner and A.M. had both worked at the Denny's restaurant in Rolla, Missouri. In correspondence, Wagoner asked Picker to contact several persons, including Christina Lohrer (Lohrer), who worked at the restaurant. Wagoner wanted these persons interviewed because they "may have overheard statements by [A.M.] that may have contradicted certain things [A.M.] had told police officers[.]" Wagoner also revealed that he had described what had happened with the Victim to all of these persons. Picker decided that interviewing them would not be helpful to Wagoner's defense because Picker could not "put witnesses on the stand at a trial where [Wagoner] confessed to allowing [Victim] to touch his penis." In one of Wagoner's letters, he also expressed concerns that what he had done did not constitute sodomy. On April 30, 2004, Picker responded by sending Wagoner a letter containing copies of the sodomy statute (§ 566.062), the child molestation statute (§ 566.067) and the definition of sexual contact (§ 566.010).3
On May 19, 2004, Wagoner waived his preliminary hearing. During a meeting with Picker, Wagoner received copies of the discovery obtained from the State. Included in this packet of information was a transcript of Victim's videotaped interview and what Picker described as "multiple confessions from the police report and [Wagoner's] letter of apology." On May 26, 2004, the prosecutor filed a two-count information against Wagoner. Count I alleged that, in violation of § 566.067, Wagoner committed child molestation in the first degree by subjecting Victim to sexual contact when she was less than 14 years old. Count II alleged that, in violation of § 566.062, Wagoner committed statutory sodomy in the first degree by having deviate sexual intercourse with Victim when she was less than 12 years old. The prosecutor offered a plea bargain to Wagoner. If he would plead guilty to the child molestation charge, the State would recommend a 12-year sentence in the Department of Corrections (DOC) to run concurrently with another sentence Wagoner was already serving. In addition, the State would dismiss the statutory sodomy charge. Picker discussed the offer with Wagoner and recommended that he accept it because of the confessions he had made. Wagoner agreed to do so.
On June 7, 2004, Picker met with Wagoner for 20-30 minutes to discuss the guilty plea process and the collateral consequences of the plea. Picker prepared a petition to plead guilty, which Wagoner reviewed and signed. The fifth paragraph of that document stated:
I know the Court must be satisfied that there is a factual basis for a PLEA OF GUILTY before my plea can be accepted. I represent to the Court that I did the following acts in connection with the charge made against me: I let [Victim], who is less than 14 years old, touch my penis until I secreted seminal fluid.
(Underlining in original.) Because Wagoner was pleading guilty to a sex crime, Picker also discussed the Missouri Sex Offenders Program at the DOC, the sexually violent predator laws and the civil commitment process.
On June 10, 2004, Wagoner appeared for his guilty plea hearing. During an examination by the court, Wagoner agreed that: (1) Picker did everything he was asked to do by Wagoner; (2) they spent enough time together to discuss all possible defenses; and (3) they reviewed the petition to plead guilty, and Wagoner had no questions about it. The following examination then took place:
Q. Count 1 alleges that you committed the Class B felony of child molestation in the first degree and that between December 15th, 2003 and February 23rd, 2004 in Phelps County, Missouri, you subjected [Victim], who was then less than 14 years old, to sexual contact. Do you understand that charge?
A. Yes, sir.
....
Q. Do you have any questions about the charge?
A. No, sir.
Q. Did you, in fact, do the things complained of in Count 1? Did you subject this child who was less than 14 years old at the time to sexual contact?
A. Yes, sir.
During further examination by Picker, Wagoner identified the petition to plead guilty. He acknowledged that: (1) Picker had read each paragraph of that document to Wagoner; (2) he understood all of the rights discussed therein; (3) he signed the document; and (4) he wished to plead guilty. Picker then filed the plea petition with the court. During cross-examination by the prosecutor, Wagoner was asked to explain what he did that constituted sexual contact. During that explanation, Wagoner admitted that: (1) Victim grabbed hold of Wagoner's penis in a sexual manner; (2) he developed an erection; (3) Victim continued to grip Wagoner's penis for five to six seconds; and (4) as he was pulling back, "semen or something came out."
The court accepted Wagoner's guilty plea, sentenced him to serve 12 years in the DOC on the child molestation charge and dismissed the statutory sodomy charge. During further examination by the plea court, Wagoner stated that he had no complaints about Picker's service and did not believe his attorney had been ineffective or incompetent.
After Wagoner was delivered to the DOC, he filed a timely pro se Rule 24.035 motion. Counsel was appointed, and an amended motion was filed. Insofar as relevant here, the motion alleged that Wagoner's guilty plea was involuntary for two reasons. First, Picker was ineffective for failing to contact Lohrer because she "would have refuted the victim's and victim's mother's claim of the events that occurred[.]" Second, the record contained an insufficient factual basis to establish the mental element required to commit the crime of child molestation in the first degree.
In October 2005, the motion court held an evidentiary hearing on Wagoner's claim. He, Picker and Lohrer testified. The facts already recited above have been drawn from the testimony of Wagoner and Picker and from various documents in the legal file. Lohrer testified that she had worked with Wagoner and A.M. at Denny's. After Wagoner was arrested, A.M. was confused and upset. When asked if A.M. said anything that would cast doubt on Wagoner's guilt, Lohrer answered, "It's been awhile." Lohrer then was asked if she had heard Victim make any statements. Lohrer recounted that, at dinner one evening, Victim whispered in Lohrer's ear that "my mommy said I had touched [Wagoner's] thingee ...." Lohrer didn't react to the statement or make an issue out of it because she "didn't know what to do." Because Victim was so young, Lohrer did not want to scare her. Later that evening, Lohrer and A.M. talked more about what had happened. Lohrer asked Victim if Wagoner had touched her. Victim said "yes" and "just looked down." At that point, Lohrer and A.M. took Victim to the hospital so a complete investigation could be performed. Lohrer was not asked whether Wagoner had ever discussed with her what had transpired with Victim.
The motion court denied Wagoner's motion. The court found that Picker had not been ineffective for failing to contact Lohrer because, in Wagoner's discussions with his co-workers, he The court also found that the record at the guilty plea hearing contained a sufficient factual basis as to the necessary mental element because "[e]vidence was presented that sexual contact occurred and that a physical reaction occurred from which an inference of sexual gratification can be made." This appeal followed.
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