Wilder v. State

• Decision Date: 19 January 2010
• Docket Number: No. ED 93032.,ED 93032.
• Citation: 301 S.W.3d 122
• Parties: Garland L. WILDER, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

301 S.W.3d 122

Garland L. WILDER, Appellant, v. STATE of Missouri, Respondent.

No. ED 93032.

Missouri Court of Appeals, Eastern District, Division Four.

January 19, 2010.

Scott Thompson, Office of the Missouri Public Defender, St. Louis, MO, for Appellant.

Chris Koster, Attorney General, Terrence M. Messonnier, Assistant Attorney General, Jefferson City, MO, for respondent.

KURT S. ODENWALD, Presiding Judge.

Introduction

Garland Wilder (Movant) appeals from the motion court's denial, without an evidentiary hearing, of his Rule 24.035¹ amended motion for post-conviction relief. Finding no clear error in the motion court's ruling, we affirm.

Background

On May 26, 2005, the State of Missouri (State) filed a complaint against Movant charging him with one count of burglary in the first degree, in violation of Section 569.160, RSMo 2000², and one count of statutory sodomy in the second degree, in violation of Section 566.064, relating to an alleged incident early that morning. The complaint alleged that the 15 year-old female victim, S.E. (Victim), awoke around 2:00 a.m. to find Movant in her bedroom. After telling Victim, "You know what I want," the complaint alleges Movant attacked Victim, punching her, choking her, grabbing her breast, and penetrating her vagina with his fingers. Victim's sister heard a commotion and went into Victim's room and saw Movant attacking Victim. Movant then also attacked Victim's sister. The complaint asserts that at some point Victim may have blacked out as a result of the attack.

The State later filed an indictment against Movant on January 3, 2007, charging Movant with not only burglary in the first degree, but also first degree assault, in violation of Section 565.050, and attempted forcible rape, in violation of Section 566.030.³ The State alleged that Movant "knowingly entered unlawfully in an inhabitable structure . . . for the purpose of committing attempted rape therein," punched and choked Victim which was a substantial step toward attempting to kill or cause serious physical injury to her, and "took off [Victim's] shorts and underwear by the use of forcible compulsion" which was a "substantial step toward the commission of the crime of forcible rape." The final charging document, an Information in Lieu of Indictment, was filed by the State on January 16, 2007, and charged Movant as a prior and dangerous offender, in violation of Sections 558.016 and 557.036.

On January 7, 2008, Movant withdrew his prior pleas of not guilty and entered blind Alford⁴ pleas of guilty to each of the three charges. At the plea hearing, Movant testified that he wished to plead guilty because he believed the State had substantial evidence against him and that if his case proceeded to trial there was a substantial likelihood that he would be found guilty. Movant testified that he understood the range of punishment, that he had no complaints or criticisms of his attorney, that he understood the rights he was waiving by pleading guilty, and that he was entering his plea voluntarily and of his own free will. The plea court accepted Movant's plea and found Movant's plea was made "voluntarily and intelligently with a full understanding of the charge and the consequences of the Alford plea and with an understanding of his rights attending a jury trial and the effect of an Alford plea of guilty on those rights." The plea court directed a pre-sentence investigation report be prepared and deferred sentencing accordingly.

Movant appeared for sentencing on April 4, 2008. At that time Movant requested that the court allow him to withdraw his Alford plea. Movant's counsel explained that Movant only pleaded guilty because of the DNA evidence, but that after reading the Victim's written statement Movant felt that Victim was not just mistaken as to what happened but was "outright lying." Counsel argued that after reading the victim's statement, Movant felt that he should have fought and taken his case to trial due to Victim's "lies." The State responded that Movant was "completely lying to the Court" and that Victim's statements were consistent. The court denied Movant's oral motion to withdraw his plea, noting that the court "gave [Movant] plenty of opportunity during the plea that if [Movant] had some second thoughts about the plea and wanted to withdraw [his] plea, [Movant] could have withdrawn it at that point and went ahead with the trial." Having been shown no legal cause why judgment and sentence should not be pronounced, the court sentenced Movant to 15 years imprisonment for the first degree burglary charge to run concurrent to 15 years imprisonment for the first degree assault charge, but both to run consecutive to 30 years of imprisonment for the attempted forcible rape charge. After his sentence was announced, the court questioned Movant regarding his attorney's performance at which time Movant testified that he was satisfied with the services rendered by his attorney. The court found no probable cause existed for a claim of ineffective assistance of counsel.

On June 30, 2008, Movant filed a pro se Motion to Vacate, Set Aside or Correct Judgment or Sentence, pursuant to Rule 24.035. Post-conviction counsel was appointed and filed an amended post-conviction motion requesting an evidentiary hearing on December 3, 2008. The amended motion first alleged that the court erred in sentencing Movant and not granting his request to withdraw his Alford plea because the victim's impact statement contradicted her earlier accounts. Movant also alleged the court erred in accepting his plea and sentencing him for both assault in the first degree and attempted forcible rape in violation of his constitutional rights because there was no factual basis for the commission of two assaults necessary to support convictions for both charges.

The motion court denied Movant's request for an evidentiary hearing on December 16, 2008. The motion court subsequently denied Movant's amended motion for post-conviction relief on April 2, 2009. In denying Movant's amended motion, the motion court found with regard to Movant's first claim that:

Movant failed at the time of sentencing and has failed in his motion to establish any fact that would warrant relief to withdraw his plea. The fact the victim referred to herself as `a victim of rape' in and of itself does not present a challenge to her credibility or contradict the factual basis to support the charge of attempted rape as laid out by the State. The Movant entered an Alford plea, acknowledging the State had substantial evidence against him. The evidence the State elicited to support the factual basis for the charges included not only statements of the victim but statements of independent witnesses, physical injuries, and DNA evidence.

With regard to Movant's second claim, the motion court found:

[T]he State elicited sufficient evidence to support two separate and distinct crimes. In the indictment and during the recitation of facts supporting the charges, the State alleged Movant assaulted [Victim] when he choked and punched her, resulting in a fractured orbital socket, bruises to her face and clavicle. The State alleged Movant attempted to rape [Victim] when he forcibly removed her clothing. [Victim] was unable to offer an explanation as to how her clothes were removed due to the physical assault, which may have rendered her unconscious. When [Victim's] sister discovered her she was not moving. Further, there were scratches observed in [Victim's] vaginal area at the hospital.

Movant filed a timely Notice of Appeal on May 11, 2009. This appeal follows.

Points on Appeal

Movant presents two points on appeal. In his first point, Movant alleges the motion court clearly erred when it denied his amended motion for post-conviction relief without an evidentiary hearing because he alleged facts, not conclusively refuted by the record, that he was denied his constitutional rights because he was not permitted to withdraw his Alford plea of guilty after he revealed his decision to plead guilty was based on a misunderstanding of the State's evidence and the believability of the victim.

In his second point, Movant asserts the motion court clearly erred in denying his motion for post-conviction relief because the record demonstrated he was denied his constitutional rights when the court accepted his plea and entered convictions for both assault in the first degree and attempted forcible rape premised on a single, undifferentiated act of force.

Standard of Review

Appellate review of a motion court's denial of a post-conviction motion under Rule 24.035 "shall be limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous." Rule 24.035(k); Weeks v. State, 140 S.W.3d 39, 44 (Mo. banc 2004). Findings and conclusions are "clearly erroneous" if, after a review of the whole record, we are "left with the definite and firm impression that a mistake has been made." Weeks, 140 S.W.3d at 44. This court "presume[s] that the motion court's findings and conclusions are correct." Johnson v. State, 172 S.W.3d 831, 834 (Mo.App. S.D.2005).

Discussion

Point I — Denial of Motion to Withdraw Plea

In his first point on appeal, Movant alleges the motion court erred in denying his amended motion for post-conviction relief because the court erred by not allowing him to withdraw his guilty plea after he revealed his decision to plead guilty was based on a misunderstanding of the State's evidence and the believability of the victim. We disagree and find Movant is barred from raising this issue in his motion for post-conviction relief.

On January 7, 2008, Movant entered a blind Alford plea and testified at his plea hearing that he wished to plead guilty because he believed the State had substantial evidence against him and that if his case were to go to trial there was a substantial likelihood that he would be found guilty. The court found that Movant's ...