Waldorf v. State

• Docket Number: ED 111167
• Decision Date: 01 August 2023
• Citation: Waldorf v. State, 673 S.W.3d 511 (Mo. App. 2023)
• Parties: Timothy WALDORF, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

673 S.W.3d 511

Timothy WALDORF, Appellant,

v.STATE of Missouri, Respondent.

No. ED 111167

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

Filed: August 1, 2023

FOR APPELLANT: John S. Appelbaum, Missouri Public Defender's Office, 1010 Market Street, Suite 1100, St. Louis, Missouri 63101.

FOR RESPONDENT: Evan J. Buchheim, Assistant Attorney General, PO Box 899, Jefferson City, Missouri 65102.

Philip M. Hess, Judge

Introduction

Timothy Waldorf("Movant") appeals the motion court's denial of his Rule 24.035motion for postconviction relief without an evidentiary hearing following his guilty plea and sentence of twelve total years in the Missouri Department of Corrections for stealing, burglary, and property damage.¹Movant raises one point on appeal, arguing the motion court clearly erred denying his motion without an evidentiary hearing because the record did not conclusively refute his claim that plea counsel was ineffective for failing to investigate a material witness.Because Movant failed to plead facts which, if true, would entitle him to relief the motion court's denial was not clearly erroneous.

We affirm.

Factual and Procedural Background

On August 27, 2021, Movant pled guilty to the class B felony of stealing a motor vehicle as a prior and persistent offender, the class D felony of burglary, the class D felony of stealing, and the class E felony of property damage.Movant's plea counsel entered his appearance on February 8, 2021.At the plea hearing, Movant admitted on October 19, 2020, he and two others approached a camper trailer owned by Brian Thebeau.He admitted he broke the door off and entered the camper trailer with the intent to steal.Movant stole personal property and televisions worth at least $750.00.Movant also admitted he took an off-road vehicle ("UTV") owned by Brian Thebeau.Movant waived his right to a sentencing assessment report and the trial court proceeded with a formal sentencing hearing.

The trial court accepted Movant's plea agreement and sentenced him to the Department of Corrections for twelve years for stealing a motor vehicle, ten years for burglary, five years for felony stealing, and seven years for property damage, all to be served concurrently.The trial court advised Movant of his postconviction rights under Rule 24.035.The trial court questioned Movant on the effectiveness of plea counsel and stated it found no evidence counsel was ineffective.

Movant timely filed his pro se motion on January 31, 2022.Motion counsel timely filed an amended motion alleging plea counsel was ineffective for failing to effectively investigate potential witness testimony and video evidence before advising Movant to plead guilty.Movant pled he notified plea counsel of potentially exonerating security footage and the witness possessing the footage would testify the footage is held for 60–90 days.Movant claims he told plea counsel the footage would show either: (a) the vehicle he later occupied never entered or exited Goose Creek, where the camper trailer was located, (b) if the vehicle entered or exited Goose Creek it was not towing the stolen UTV, and (c) if the vehicle was seen entering and exiting Goose Creek towing the stolen UTV, Movant did not occupy the vehicle or the UTV.

The motion court found Movant failed to demonstrate he was prejudiced by plea counsel's failure to obtain security footage.The motion court pointed out Movant pled the witness will testify the footage is only available for 60–90 days, and plea counsel did not enter her appearance until February 9, 2021, which was 112 days after the incident.The motion court found Movant could not have been prejudiced by plea counsel's failure to obtain evidence that no longer existed.The motion court denied Movant's request for an evidentiary hearing and dismissed Movant's motion.

This appeal follows.

Standard of Review

This Court's review of a denial of post-conviction relief is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous.Dorsey v. State , 448 S.W.3d 276, 282(Mo. banc 2014);Rule 24.035(k).The motion court's findings are clearly erroneous when, after a review of the entire record, "the court is left with the definite and firm impression that a mistake has been made."Dorsey , 448 S.W.3d at 282."We presume the motion court's findings and conclusions are correct."Phillips v. State , 635 S.W.3d 870, 873(Mo. App. E.D.2021).

Discussion

Party Positions

In his sole point on appeal Movant argues the motion court clearly erred in denying his motion without an evidentiary hearing because plea counsel acted unreasonably in failing to investigate a material witness willing to provide exonerating evidence.Movant contends he is entitled to an evidentiary hearing because his attorney failed to investigate Goose Creek Security Supervisor, Michael Copeland, who Movant argues is a relevant witness whose identity and proposed testimony plea counsel was aware of, and was available to testify.

Morrow v. State , 21 S.W.3d 819, 823(Mo. banc. 2000), as modified(Aug. 1, 2000)(citingState v. Jones , 979 S.W.2d 171, 186–87(Mo. banc. 1998) ).Movant argues no attorney in the same or similar circumstances would have failed to investigate a witness possessing exonerating evidence.

Movant claims plea counsel's failure to investigate the footage was objectively unreasonable and fell below the accepted standards for the legal profession.Movant argues the motion court's finding the video evidence was no longer available after plea counsel entered her appearance in Movant's case is irrelevant to whether plea counsel acted reasonably in choosing not to contact the witness.Hannon v. State , 491 S.W.3d 234, 242–43(Mo. App. E.D.2016)(counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary).Movant argues there is nothing in the record before the motion court establishing plea counsel was reasonable in failing to contact the witness, so the motion court's finding plea counsel made a reasonable decision not to investigate the witness was clearly erroneous.

The State argues the motion court did not clearly err in denying Movant's motion because plea counsel was not ineffective.The State argues for Movant to succeed on a claim for ineffective assistance of counsel, Movant must show plea counsel knew or should have known of the witness's identity, the witness could have been located through reasonable investigation, the witness was willing to testify, and the testimony from the witness would provide Movant with a viable defense.McIntosh v. State , 413 S.W.3d 320, 328(Mo. banc 2013).The State contends Movant did not plead facts showing the witness was willing to testify or showing the witness's proposed testimony would have provided him with a viable defense.Jones , 979 S.W.2d at 187.The State reasons the surveillance video would not have been available 60–90 days after the crime, and plea counsel did not enter her appearance until after that period.The State asserts plea counsel cannot be deemed ineffective for failing to obtain evidence which did not exist.The State also argues Movant's claim is refuted by the record because, during the plea hearing, Movant recited and restated the factual basis for his plea, and he told the court there was nothing else he wanted his plea counsel to do for him.

Analysis

A motion court is only required to conduct an evidentiary hearing on a Rule 24.035motion for postconviction relief when: "(1)movant alleges facts, not conclusions, which, if true, would entitle movant to relief; (2) the factual allegations are not refuted by the record; and, (3) the matters complained of prejudice the movant.’ "Shackleford v. State , 51 S.W.3d 125, 128(Mo. App. W.D.2001)(quotingLoudermilk v. State , 973 S.W.2d 551, 553(Mo. App. E.D.1998) )."To prevail, [the movant] bears the burden of proof to establish each element of this three-prong test."Id.

"Criminal defendants have a Sixth Amendment right to effective assistance of counsel."Phillips , 635 S.W.3d at 874(citingStrickland v. Washington , 466 U.S. 668, 669, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984) )."To establish counsel was ineffective, movants must establish (1)counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances; and (2)counsel's errors were prejudicial."Id.(citingStrickland , 466 U.S. at 669, 104 S.Ct. 2052 )."In a guilty plea, a claim of ineffective assistance of counsel is immaterial ‘except to the extent that the conduct affected the voluntariness and knowledge with which the plea was made.’ "Id.(quotingWorthington v. State , 166 S.W.3d 566, 573(Mo. banc 2005) )."If the movant fails to satisfy either the performance prong or the prejudice prong, we need not consider the other."Lusk v. State , 655 S.W.3d 230, 234(Mo. App. E.D.2022)(quotingFarr v. State , 408 S.W.3d 320, 322(Mo. App. E.D.2013) ).

1.Ineffectiveness

To prove plea counsel was ineffective, Movant must show her representation "fell below an objective standard of reasonableness."Strickland , 466 U.S. at 687, 104 S.Ct. 2052."Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary."Id. at 691, 104 S.Ct. 2052."We assess reasonableness under ‘all the circumstances, applying a heavy measure of deference to counsel's judgments.’ "Hendricks v. State , 663 S.W.3d 875, 881(Mo. App. E.D.2023), reh'g and/or transfer denied(Mar. 21, 2023), transfer denied(May 2, 2023)(quotingStrickland , 466 U.S. at 691, 104 S.Ct. 2052 ).

It is unclear whether Movant argues plea counsel was ineffective for failing to investigate the potential witness testimony or failing to investigate the video evidence.In the interest of fairness to Movant, we will analyze plea counsel's...