Wallar v. State

• Decision Date: 23 July 2013
• Docket Number: No. WD 75103.,WD 75103.
• Citation: 403 S.W.3d 698
• Parties: Nicholas WALLAR, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

403 S.W.3d 698

Nicholas WALLAR, Appellant,

v.STATE of Missouri, Respondent.

No. WD 75103.

Missouri Court of Appeals,

Western District.

July 23, 2013.

Patrick W. Peters, Kansas City, MO, for Appellant.

Chris Koster, Attorney General, Evan J. Buchheim, Assistant Attorney General, Jefferson City, MO, for Respondent.

Before Division Two: THOMAS H. NEWTON, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.

KAREN KING MITCHELL, Judge.

Nicholas Wallar appeals the denial, following an evidentiary hearing, of his Rule 24.035 motion for post-conviction relief.¹ In his motion, Wallar claimed that he should be discharged from his convictions due to an alleged systemic failure of the Jackson County Prosecuting Attorney's Office to comply with the disclosure obligations of Rule 25.03. The motion court rejected Wallar's claim, finding that it had been waived by the entry of his guilty pleas, that Wallar failed to plausibly demonstrate materiality of the information sought, and that Wallar's testimony indicating that, if the State had not violated the discovery rule, he would have proceeded to trial, was not credible. Finding no error of law, we affirm.

Factual Background

On April 4, 2009, Wallar, using a black handgun, stole a car from a gas station patron. Then, around 9:00 p.m., Wallar stole a pizza delivery driver's vehicle, while the driver was giving pizza to a customer. The driver, initially believing that Wallar was simply confused and got into the wrong vehicle, attempted to stop Wallar, but Wallar flipped the driver off; said, “peace out, bitch”; and drove away.

Independence Police Officer Richard Remmington responded to a stolen-auto-in-progress call regarding the delivery driver's vehicle. Officer Remmington was advised that the suspect was last seen walking at 32nd Street and Lee's Summit Road. When Officer Remmington arrived in the area, he contacted three witnesses who pointed him in the direction of the delivery driver's vehicle, which Wallar had abandoned on the side of the road. The same witnesses told Officer Remmington that the suspect was walking southbound and appeared to be carrying a dark object in his hands. Numerous officers responded to the area. Among those officers was Sergeant Steven Boles, who observed Wallar walking at the intersection of 35th Street and Lee's Summit Road. After advisingdispatch of his location, Sergeant Boles got out of his vehicle to make a pedestrian stop. At that point, Wallar pointed a black handgun at Sergeant Boles and began firing multiple shots.² Sergeant Boles retreated, but Wallar pursued him and continued to fire. Sergeant Boles was able to return fire, striking Wallar once.

Officer Barry Huwar responded to a call for assistance with his dashboard camera activated. When Officer Huwar arrived, he saw Wallar shooting at Sergeant Boles. Officer Huwar fired several shots at Wallar and eventually ran his car into Wallar to stop him from shooting at Sergeant Boles. Wallar was transported to the hospital and treated for his injuries. The camera in Officer Huwar's car captured video footage of Wallar shooting at Sergeant Boles.

Wallar was indicted for first-degree robbery and armed criminal action for the theft of the first vehicle, second-degree robbery for the theft of the second vehicle, and first-degree assault on a law enforcement officer and armed criminal action for shooting at Sergeant Boles. His trial was set for November 15, 2010. On August 12, 2010, Wallar entered guilty pleas to the charges, pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), because he had been too drunk to recall the events with which he was charged and, therefore, could not affirmatively state that he had committed them.³

At the plea hearing, the prosecutor indicated that Wallar was to enter an open plea, subject to the full range of punishment, and the only concession the State made was that it would not oppose a sentencing assessment report and deferred sentencing. Wallar affirmed that the prosecutor's recitation conformed to his understanding of the plea agreement.

After verifying that Wallar could read, write, and understand the English language; and that Wallar was not then under the influence of any drugs, alcohol, or mental impairments, the court confirmed Wallar's desire to enter Alford pleas to the charges. Wallar advised the court that he was also facing probation revocation for a charge in Oklahoma. The court then went through the various rights attendant to a jury trial that Wallar was giving up by pleading guilty and verified that Wallar not only understood all of them but also agreed to waive them. Wallar specifically acknowledged waiving any potential defenses he might have to the charges and the right to challenge “any shortcomings in the State's case.” The prosecutor then recited the range of punishment for each charge, verified that Wallar understood that the sentences could run either concurrently or consecutively, and then provided the court with a factual basis for Wallar's pleas. The court found that the evidence, as recited by the prosecutor, “substantially would negate any opportunity [Wallar] would have to secure acquittal and ... [was] very strong evidence of his guilt.”

The court then questioned Wallar about the voluntariness of his pleas, and Wallar confirmed that he was entering the pleas voluntarily, in the absence of any force, coercion, threats, or promises. Wallar agreed that he had been provided sufficient opportunity to discuss his case with counsel, denied any complaints about counsel, and expressed satisfaction with counsel's performance. The court accepted Wallar's pleas, ordered a sentencing assessment report, and set the matter for sentencing.

At the sentencing hearing, the court received victim impact testimony from the delivery driver, Officer Huwar, and Sergeant Boles, and a letter from a gas station patron, who was unable to attend the sentencing hearing. The court also received several letters written on Wallar's behalf, along with testimony from Wallar's father, Wallar's cousin, Wallar's good friend, and Wallar's cell-mate at the county jail.

The prosecutor argued for consecutive terms of life imprisonment on the four class A felonies and fifteen years on the class B felony. Wallar sought the minimum term for each count, with all counts to run concurrently, for a total of ten years' imprisonment. Wallar spoke on his own behalf, expressing remorse for his actions, apologizing to the victims, and seeking mercy from the court. The court sentenced Wallar to concurrent terms of thirty years on each of the class A felonies and fifteen years on the class B felony, for an aggregate total of thirty years' imprisonment.

Thereafter, Wallar filed a pro se Rule 24.035 motion for post-conviction relief. Counsel filed an amended motion, alleging (among other claims) that Wallar's pleas were unknowing and involuntary in that the Jackson County Prosecutor's Office failed to comply with its disclosure obligations pursuant to Rule 25.03 and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). More specifically, Wallar's motion pled that the State failed to disclose documents pertaining to internal investigations of Sergeant Boles and Officer Huwar and prior criminal records of endorsed state witnesses. He further pled that, if he had received this information, he would not have pled guilty, but would have insisted on going to trial.

The motion court held an evidentiary hearing, wherein it received testimony from Wallar and from his trial counsel, David Wylie. At the hearing, Wallar chose not to present evidence on any of the claims in his amended Rule 24.035 motion except those related to the alleged disclosure violations.

In support of his claim regarding nondisclosure of the internal affairs investigations of Sergeant Boles and Officer Huwar, Wallar testified that he never received any personnel files of any of the 35 officers associated with the investigation of his case. Wallar initially testified that he knew nothing of an internal affairs investigation until he was so advised by post-conviction counsel, but he then recalled that an officer, who was from internal affairs, sought a statement from him after he arrived at the jail upon being released from the hospital. Wallar testified that he refused to give the officer a statement and would not allow the officer to record his refusal to give a statement. But, Wallar claims, he asked the officer (off the record) if he had shot anybody, and the officer told him that he did not, and Wallar responded, “[w]ell, thank God that didn't happen.” Wallar testified that he never received any report containing those statements. Wallar testified that, had he known he did not have this information related to the internal affairs investigation, he would not have pled guilty.

In support of the claim regarding nondisclosure of criminal convictions for the State's witnesses, Wallar introduced his request for disclosure, filed August 18, 2009, which sought information about criminal convictions of the witnesses the State intended to call at any hearing or trial, and the State's response, filed June 30, 2009, which stated: “The State has no information at this time with respect to any felony or misdemeanor convictions which the State's witnesses may have. At such time as that information becomes available, it will be provided in a supplemental response to the defendant's request for discovery.” ⁴ Wallar also presented documents from Case.net reflecting criminal convictions for individuals with the same or similar names and the same birth year as some of the State's witnesses. The motion court received the Case.net documents, over the State's objection, but noted that the exhibit “doesn't prove much of anything” and that the court did not “find it all that probative.” Wallar also testified that, if he had been provided this information, he...