Waserman v. State

• Decision Date: 20 March 2003
• Docket Number: No. 24974.,24974.
• Citation: Waserman v. State, 100 S.W.3d 854 (Mo. App. 2003)
• Parties: Creig WASERMAN, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

Page 854

100 S.W.3d 854

Creig WASERMAN, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.

No. 24974.

Missouri Court of Appeals, Southern District, Division One.

March 20, 2003.

COPYRIGHT MATERIAL OMITTED

Kent Denzel, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Dora A. Fichter, Assistant Attorney General, for Respondent.

PHILLIP R. GARRISON, Judge.

Creig Waserman ("Movant") pleaded guilty to forgery, a violation of Section 570.090,¹ and failure to appear, a violation of Section 544.665. The trial court found Movant to be a prior and persistent offender under Sections 558.016 and 557.036 and sentenced him accordingly to consecutive terms of twenty years imprisonment for forgery and ten years imprisonment for failure to appear. This is an appeal from the denial of Movant's Rule 24.035² motion to vacate the trial court's judgment and sentences following an evidentiary hearing. We affirm.

At Movant's January 24, 2001 plea hearing, the State declared that if the case were tried the State would prove

with respect to Count I ... that on or about the date charged in the information that here in Jasper County [Movant] here in fact did use as genuine check number 9090, drawn on the account of All Seasons Florist, and at the time purported to have a genuineness that it did not possess. Specifically the evidence would be that three checks were taken from that business and were filled out in the name of [Movant] without the permission or knowledge of the business owners, All Seasons Florist. And that the proceeds were deposited into [Movant's wife's] bank account at Southwest Missouri Bank and that [Movant] was the person who was involved in those transactions.

With respect to Count II, the evidence would be that while [Movant] was awaiting trial on that charge and other charges here in this court he failed to appear before this Court for his trial setting on April 26 of 1999 and this Court issued a capias, capias warrant. He eventually was apprehended, I believe in the state of Maryland, and brought back for further proceedings.

Movant admitted the truth of the State's allegations to the trial court. The court accepted Movant's pleas after finding that they had been made knowingly and voluntarily. On March 30, 2001, Movant was sentenced as described above.

On May 29, 2001, Movant filed a pro se motion for post-conviction relief under Rule 24.035. On September 17, 2001, his post-conviction counsel filed a statement in lieu of amended motion in which he stated he did not intend to file an amended motion, as he had reviewed the court file, transcripts, plea counsel's files, and documentation from Movant and determined Movant's pro se motion contained all claims and pertinent facts known to him.

On April 19, 2002, the motion court held an evidentiary hearing on Movant's Rule 24.035 motion, during which evidence was admitted via Movant's prior deposition and the testimony of Movant's plea counsel, Darren Wallace ("Wallace"). The motion court issued its findings of facts and conclusions of law on April 26, 2002, in which it denied Movant's request for post-conviction relief. This appeal follows.

In Movant's first point, he alleges the motion court clearly erred in denying his Rule 24.035 motion because Movant received ineffective assistance of counsel in that Wallace failed to present evidence to the trial court that would have mitigated the sentence imposed. Specifically, Movant claims Wallace "had available but failed to present evidence that the victims received restitution before sentencing, that [Movant's] criminal history was not as extensive as was reported by the [State], and that there were numerous errors in the [pre-sentence investigation]." Additionally, Movant complains that Wallace did not read to the court a letter in which Movant listed mitigating factors he believed the court should consider.

Our review of the denial of a Rule 24.035 motion for post-conviction relief is limited to a determination whether the findings of facts and conclusions of law of the motion court were clearly erroneous. Rule 24035(k). Such findings are clearly erroneous only if a review of the entire record results in our being left with the definite and firm impression that a mistake has ben made. Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000).

In order to prevail on a claim of ineffective assistance of counsel, a movant must establish that his attorney's performance failed to conform to the degree of skill, care and diligence of a reasonably competent attorney, and that he was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Where, as here, a movant pleads guilty, claims of ineffective assistance of counsel are considered only insofar as they allege counsel's performance affected the voluntariness or understanding with which the plea of guilty was entered. State v. Roll, 942 S.W.2d 370, 375 (Mo. banc), cert. denied, 522 U.S. 954, 118 S.Ct. 378, 139 L.Ed.2d 295 (1997).

The motion court held an evidentiary hearing on Movant's claims, in which Movant's testimony was presented through admission of his prior deposition. In that deposition, Movant testified that while he was an employee of All Seasons Florist he negotiated a contract with the owners for the purchase of the business. He testified that he incurred expenses on behalf of the business in preparation for the purchase, but that the transaction did not take place due to a breakdown in his relationship with the owners.

According to Movant, he reimbursed the owners for their loss on the check Movant pled guilty of forging and informed Wallace of the reimbursement, but Wallace failed to present to the trial court available documents to prove that contention. Movant further testified that he disputed alleged inaccuracies in the PSI and asked Wallace to inform the court of the mistakes, but Wallace refused to do so. Movant also testified that he gave Wallace a three-page letter listing mitigating factors that Movant believed applied to his case and asked Wallace to read the letter to the court, but Wallace failed to abide by Movant's wishes. Finally, Movant claimed that his criminal record was not as long as the prosecutor argued at sentencing and that Wallace should have advised the court that some of the charges were dismissed or "closed."

Wallace testified at the evidentiary hearing that his strategy at sentencing was to suggest an appropriate sentence under the sentencing guidelines,³ to advise the court of any proper mitigating factors, and to argue for the minimum term of imprisonment under the sentencing guidelines. He said he did not argue that Movant reimbursed the owners because he could not confirm that fact, as bank documents did not show that any of the money withdrawn from Movant's account was given to the owners. Wallace further stated that he did not bring to the court's attention Movant's corrections to the PSI because they consisted of Movant's disagreement with the victims' impact statements and Wallace did not believe he could argue that Movant was willing to take responsibility for his action while he continued to dispute the victims' statements. Wallace testified that he did not read Movant's letter to the court because the letter was similarly focused on Movant's disagreement with the owners, and because Wallace believed the mitigating factors listed in the letter were cumulative of arguments made by him in open court and facts contained in the PSI. In response to Movant's claim that he should have corrected the prosecutor's alleged mischaracterization of Movant's criminal record, Wallace testified he discussed Movant's record with him to explain what was a conviction for the purpose of determining the proper range of punishment. He testified he did not believe that probation was realistic because Movant was serving a prison sentence at the time of sentencing, following a parole violation.

At the close of evidence, the court stated:

BY THE COURT: Let me get on the record just for the benefit of any appeal which might follow; the Court is well acquainted with [Movant] through its dealings with him in this case. And the record should reflect that, first of all, the Court finds [Movant] untrustworthy and not believable on most issues and therefore probably not reliable on any issue.

The other thing that the record should reflect and doesn't is that ... there are all kinds of attorneys who appear before the Court. There are some who are aggressive, others who are less aggressive. Some who I will call ranters, others less vociferous.

And the record should reflect that often [Wallace] is complained about by his criminal defendants because he doesn't stand before the Court and put on what I'll affectionately call a dog and pony show. When the truth of the matter is he's more effective, from my prospective, by pointing out those things which have a legitimate chance of succeeding than he is in putting on a dog and pony show.

He is an experienced, capable Public Defender and the defendant who receives him as appointed counsel is indeed fortunate in most cases. That is not to say that [Wallace] is not capable of making a mistake ... but the record should reflect that the Court does not count rants when it determines whether or not counsel was doing an effective job of representing his client.

Subsequently, the court issued findings of fact and conclusions of law that included the following:

[T]he Court initially notes that Movant testified under oath, immediately after he received the sentence he is now challenging, that he was completely satisfied with [his] representation, and that [Wallace] neither did nor failed to do anything contrary to what Movant would have wished. Movant's testimony at that time comported with the Court's own observations of [Wallace's] performance, both at the sentencing and at the previous guilty plea hearing. Accordingly, ...