Whitehead v. State
| Decision Date | 02 February 2016 |
| Docket Number | No. ED 102415,ED 102415 |
| Citation | 481 S.W.3d 116 |
| Parties | Gene M. Whitehead, Appellant, v. State of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Richard H. Sindel, 8000 Maryland, Suite 350, Clayton, MO 63105, for appellant.
Chris Koster, Christine Lesicko, P.O. Box 899, Jefferson City, MO 65102, for respondent.
, Judge
Appellant Gene Whitehead ("Whitehead") appeals from the judgment of the motion court denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. Whitehead pleaded guilty to one count of first-degree robbery and three counts of second-degree robbery and was sentenced to a total of 12 years' imprisonment. Whitehead's amended motion sought to set aside his guilty plea to first-degree robbery. On appeal, Whitehead contends the motion court erred in denying his Rule 24.035 motion without an evidentiary hearing because (1) plea counsel was ineffective for failing to advise Whitehead of a possible lesser-included offense of second-degree robbery; and (2) plea counsel was ineffective for pressuring Whitehead to plead guilty.
Because the record demonstrates that Whitehead understood the nature of the charges against him, the available defenses, and the relevant circumstances of his plea, the record conclusively refutes Whitehead's claim that his guilty plea was involuntary or unknowing due to plea counsel's failure to advise him of the possibility of the lesser-included offense of second-degree robbery. Further, Whitehead's testimony at the plea hearing and sentencing hearing specifically, directly, and conclusively refutes his claim that his guilty plea was involuntary as a result of plea counsel's alleged pressure and coercion. Accordingly, we affirm the judgment of the motion court.
Whitehead was arrested and charged with robbing four banks. Whitehead was charged with one count of first-degree robbery for allegedly robbing a U.S. Bank in September of 2010. Whitehead retained plea counsel to represent him. On October 1, 2012, Whitehead pleaded guilty to one count of first-degree robbery and three counts of second-degree robbery. Whitehead did not plead guilty pursuant to a plea agreement.
Prior to pleading guilty, Whitehead signed a plea petition which was presented to the trial court at the plea hearing. The plea petition stated that Whitehead had not been coerced into pleading guilty, that he had adequate time to discuss the charges with plea counsel, that he knew he did not have to plead guilty and could instead go to trial, and that he alone decided to plead guilty.
At the plea hearing, the trial court had the following exchange with Whitehead:
The trial court then proceeded to ask Whitehead a series of questions to ensure that he understood the consequences of his guilty plea, including the various constitutional rights he was giving up by pleading guilty. First, Whitehead affirmed that he understood he had "the right to plead not guilty to all of these charges and be entitled to a public jury trial." Whitehead then acknowledged he understood that if he went to trial, he would enjoy the presumption of innocence; the State would have the burden of proving his guilty beyond a reasonable doubt; his attorney would have the right to call witnesses and cross-examine the State's witnesses; and he would be allowed to decide whether or not to testify. The following exchange then occurred:
The State proceeded to state the elements of each charged offense and the range of punishment for each. With respect to the charge of first-degree robbery, the State recited that on or about September 14, 2010, in St. Charles County, Whitehead "forcibly stole cash owned by U.S. Bank and in the course thereof ... threatened with the immediate use of a dangerous instrument against a bank teller." The trial court asked Whitehead whether he understood the elements of each offense to which he was pleading guilty. Whitehead stated that he did. Whitehead also confirmed that he understood the range of punishment for each offense, understood that he was pleading guilty without a plea agreement, and understood that he could not withdraw his guilty plea is he was not satisfied with the outcome of the case. Whitehead then pleaded guilty to the first-degree robbery charge in the following exchange with the trial court:
The trial court subsequently inquired further into the factual circumstances surrounding the first-degree robbery charge, particularly the note Whitehead gave to the bank teller:
The trial court accepted Whitehead's guilty plea and found him guilty beyond a reasonable doubt of committing each of the charged offenses. The trial court deferred sentencing and ordered a Sentencing Assessment Report ("SAR").
Whitehead appeared before the trial court for sentencing on January 23, 2013. The trial court sentenced Whitehead to a total of twelve years' imprisonment. The trial court also questioned Whitehead about plea counsel's performance in the following exchange:
The trial court found that Whitehead understood his post-conviction rights and had not received ineffective assistance of counsel.
Whitehead subsequently filed a pro se Rule 24.035 motion for post-conviction relief alleging ineffective assistance of plea counsel. Post-conviction counsel was appointed and filed an amended motion alleging that plea counsel was ineffective (1) "for advising [Whitehead] to plead guilty without investigating and informing [Whitehead] of a possible lesser-included offense;" and (2) for pressuring Whitehead to plead guilty and telling Whitehead that he had no other option but to plead guilty.
The amended motion alleged that plea counsel was ineffective for advising Whitehead to plead guilty without informing him of a possible lesser-included offense "based on the evidence that [Whitehead] did not have a weapon during the alleged robbery and the jury could have found that Movant did not use or threaten to use any force during the robbery of the U.S. Bank." Whitehead argued that, based on the defense's proposed evidence, Whitehead would have been entitled to submit a proposed instruction for second-degree robbery at trial, as opposed to the charged crime of first-degree robbery. In support of his request for an evidentiary hearing, Whitehead claimed he would testify that he did not have a weapon or dangerous instrument when he robbed the bank. More importantly, Whitehead claimed he would also testify that when he approached the bank teller, she never looked at the note, and that "the police reports" would show that the bank teller stated that she did not read the note and was not aware of any threat of a weapon.1 Finally, Whitehead asserted that he would testify that plea counsel told him that he had no defense to any of the charges against him, and never informed him of the possible lesser-included offense.
Whitehead further alleged in the amended motion that plea counsel was ineffective for pressuring Whitehead to plead guilty because plea counsel told Whitehead that he should not go to trial, that he had no other option but to plead guilty, and that he would lose at trial because of the witnesses' statements in the police reports and the proposed evidence. Additionally, Whitehead alleged that plea counsel did not meet with him sufficiently enough for Whitehead to make a decision to plead guilty or go to trial, and that plea counsel never wanted to take his case to trial.
The motion court entered its findings of fact, conclusions of...
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