Wilson v. State

• Decision Date: 23 October 2012
• Docket Number: No. ED 97772.,ED 97772.
• Citation: 383 S.W.3d 51
• Parties: Matthew WILSON, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

383 S.W.3d 51

Matthew WILSON, Appellant,

v.STATE of Missouri, Respondent.

No. ED 97772.

Missouri Court of Appeals,

Eastern District,

Division Four.

Oct. 23, 2012.

Andrew E. Zleit, Assistant Public Defender, Office of the Missouri Public Defender, St. Louis, MO, for Appellant.

Chris Koster, Attorney General, Gregory L. Barnes, Assistant Attorney General, Jefferson City, MO, for Respondent.

KURT S. ODENWALD, Judge.

Introduction

Matthew Wilson (“Wilson”) appeals from the motion court's denial, without an evidentiary hearing, of his Rule 29.15¹ motion for post-conviction relief. Wilson was convicted after a jury trial of first-degree robbery under Section 569.020,² felonious restraint under Section 565.120, forcible sodomy under Section 566.060, sexual abuse under Section 566.100, and four counts of armed criminal action under Section 571.015. This Court affirmed Wilson's conviction on direct appeal in State v. Wilson, 320 S.W.3d 222 (Mo.App. E.D.2010). Wilson subsequently filed, and the motion court denied, a motion for post-conviction relief on grounds of ineffective assistance of appellate counsel and prosecutorial misconduct. We hold that Wilson's appellate counsel was not ineffective for failing to raise on direct appeal a nonmeritorious point. In addition, Wilson may not raise his claim of prosecutorial misconduct in his motion for post-conviction relief because he failed to raise that claim in his direct appeal despite having knowledge of the actions upon which he based his allegations of misconduct. Because the motion court did not clearly err in denying Wilson's motion for post conviction relief, we affirm.

Factual and Procedural History

Viewed in the light most favorable to the verdict, the evidence presented at trial is as follows. In March 2007, Wilson contacted a real estate agent and informed her that he was interested in purchasing a new home. The agent met Wilson at the real estate office and showed him several homes for sale over the next two days. On the third day, Wilson and the agent visited another home. During the showing, Wilson brought the agent into the basement and pulled out a gun. Wilson told the agent not to scream or he would kill her. Wilson then handcuffed the agent to a pole in the basement and demanded money. Wilson took the agent's wallet, cash, wedding ring, credit cards, and driver's license and told the agent that he knew where she lived and would come find her. Wilson then pulled down the agent's sweater, undid her pants, and touched the agent's breasts and genitals. Wilson also told the agent he wanted to “screw” her. Wilson then placed a knife to the agent's throat, told her not to scream, and then left the home, leaving the agent handcuffed to a pole in the basement. The agent remained in the basement for several hours until she was discovered by her husband and another real estate agent.

Wilson pawned the agent's wedding ring in Tennessee and was later arrested in Texas in a car with another female real estate agent. At the time he was arrested, Wilson was in possession of the credit cards, business cards and driver's license of the real estate agent he accosted in March 2007. The vehicle in which Wilson was arrested also contained a receipt from the store where the agent's wedding ring was pawned and a BB gun pistol. Wilson's fingerprints were found in the home where the agent was assaulted and on the agent's business card case. The agent also identified Wilson from a photo lineup and again at trial. State charged Wilson with first-degree robbery, felonious restraint, forcible sodomy, sexual abuse, and four counts of armed criminal action.

On October 5, 2007, Wilson filed a motion to dismiss his public defender Lou Horwitz (“Horwitz”). Horwitz made a separate motion to withdraw as counsel. The trial court subsequently denied both motions. On October 18, 2007, the trial court revisited Wilson's motion. During a hearing, Wilson said that he was attempting to retain private counsel. Wilson also complained that Horwitz advised him to plead guilty without conducting a sufficient investigation, and that he believed Horwitz did not want to represent him. Wilson further claimed that Horwitz and the state prosecutor were working together. The trial court found that it had every reason to believe that Horwitz was providing competent representation and that Horwitz was not creating any type of conflict with Wilson. The trial court also found that there was no evidence that Horwitz and the state prosecutor were engaged in a conspiracy. The trial court noted that Wilson could not obtain substitute counsel based upon a conflict with Horwitz that Wilson created. The trial court finally advised Wilson that Horwitz was capable of representing him, but that Wilson was permitted to obtain private counsel.

On December 20, 2007, the trial court heard Horwitz's second motion to withdraw as counsel. Horwitz filed the motion because Wilson had invoked his right to represent himself. At the hearing, Wilson stated that he wanted to represent himself because he believed that was the only way he would obtain a fair trial. On December 21, 2007, the trial court held a second hearing on Horwitz's second motion to withdraw as counsel. Wilson signed a waiver form stating that he wanted to self-represent, that the trial court had advised him to obtain an attorney, and that Wilson had the opportunity to read and ask questions about the waiver. After being advised of his right to an attorney, Wilson stated under oath that he wanted to represent himself irrespective of his dissatisfaction with Horwitz as his public defender. During the hearing, the following exchange occurred on the record:

Court: You have advised me, Mr. Wilson, that you wish to discharge counsel and represent yourself, is that correct?

Wilson: Yes, Your Honor.

Court: Why don't you want to be represented by your counsel, Mr. Horwitz?

Wilson: Several reasons. I believe he's working with the prosecutor from the start. Some of the deals he brought without even seeing—even getting the discovery yet and trying to plead a deal before he even seen the discovery or talking to me is kind of odd. And I—to me, he just ain't doing the case like it should. I'm not going to get the justice that I need to try to prepare. I have—you know, there's so much out there. And he told me his investigator is three months behind, you know, on investigation, and he's got over a hundred cases he's doing hisself, you know, so he ain't got time for my case. I got time for my case.

Court: Mr. Wilson, you have the right to the assistance of counsel, although you do not have the complete freedom to choose counsel. Is the problem with this particular counsel or do you simply wish to represent yourself?

Wilson: Represent myself.

Court: Okay. That's an important question. Because if it's just that you don't like this counsel and you want to get somebody else, that's not the same as wanting to represent yourself. So are you telling me that no, in fact you just want to represent yourself regardless of your feelings about the public defender?

Wilson: Yes, Your Honor.

...

Court: All right. Mr. Wilson, has anybody threatened you, mistreated you, offered you any promise or consideration, or in any way forced you to act as your own lawyer?

Wilson: I have no choice. No, Your Honor.

...

Court: Okay. Now, when you say you have no choice, you do have a choice.

Wilson: No, I don't.

Court: You understand you have a choice?

Wilson: No, I don't have a choice. I got to defend myself. That's the only way I'm going to be defended.

Court: Well, there are lots of lawyers who are capable of defending you, Mr. Wilson. Would you agree with that?

Wilson: No.

Court: No?

Wilson: No, not the experience I've had with lawyers. I've defended myself in one case.

Court: Okay. Well, I don't want to—I don't want to get into a discussion of the competency of various attorneys. But here's my—here's my concern about this and my question to you. You absolutely have a choice because this—in order for me to accept your waiver, I have to find that it is completely voluntary, intelligently made, knowingly made, and freely given. And if you tell me you don't have a choice, I don't have a very high level of comfort with that.

Wilson: It's all freely given, freely made, and all that because I have to do it. I have to make that choice. Well, not exactly that. It's just I'm not going to have an attorney that does whatever—that's the prosecutor's lackey you can say. I'm not the prosecutor's lackey, I'm going to represent myself. I'm representing myself, end of story. We can go at this all day, I'm representing myself, Your Honor. I'm a lackey for no prosecutor.

Court: Okay. Mr. Wilson, for the last time then, once again, the advice of this Court is to strongly advise you against representing yourself. Having said that, do you want to represent yourself?

Wilson: Yes, Your Honor.

Court: Okay. Thank you.

Accordingly, the trial court found that Wilson had been fully informed of his right to assistance of counsel, understood that right, and had knowingly, voluntarily, and intelligently waived his right to counsel.

Wilson represented himself at trial and testified in his own defense. A jury found Wilson guilty of first-degree robbery, forcible sodomy, felonious restraint, sexual abuse, and four counts of armed criminal action. Wilson did not file a motion for a new trial. Wilson was sentenced as a prior and persistent offender to two consecutive sentences of life, two sentences of 15 years imprisonment, and four sentences of 25 years imprisonment.

Wilson filed a direct appeal alleging that the trial court plainly erred in allowing Wilson to proceed to trial pro se because Wilson did not knowingly, intelligently, and voluntarily waive his right to assistance of counsel. ³ This Court held that Wilson knowingly, voluntarily, and intelligently waived his right to counsel and affirmed his conviction on direct...