Yoakum v. State, WD

• Decision Date: 23 March 1993
• Docket Number: No. WD,WD
• Citation: 849 S.W.2d 685
• Parties: Dennis J. YOAKUM, Appellant, v. STATE of Missouri, Respondent. 45872.
• Court: Missouri Court of Appeals

Page 685

849 S.W.2d 685

Dennis J. YOAKUM, Appellant, v. STATE of Missouri, Respondent.

No. WD 45872.

Missouri Court of Appeals Western District.

March 23, 1993.

Gary E. Brotherton, Columbia, for appellant.

William L. Webster, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.

Before BRECKENRIDGE, P.J. and SHANGLER and SPINDEN, JJ.

BRECKENRIDGE, Presiding Judge.

Dennis J. Yoakum (Yoakum) appeals the trial court's denial of his Rule 24.035 motion. Yoakum pleaded guilty to stealing property over $150 and was sentenced to ten years imprisonment. Yoakum raises two points on appeal. Yoakum alleges that the motion court erred in denying his Rule 24.035 motion because he was denied effective assistance of counsel due to 1) the failure of guilty plea counsel to investigate and prepare Yoakum's case for trial, forcing Yoakum to accept the State's plea offer and 2) the conflict of interest created by Yoakum's original attorney when the attorney withdrew from appellant's case and then assisted in representing Yoakum's co-defendants.

The judgment is affirmed.

Yoakum was charged with stealing property valued at more than $150 pursuant to § 570.030, RSMo 1986. He was also charged as a prior and persistent offender under § 558.016, RSMo Cum.Supp.1992, with a maximum term of imprisonment of 20 years authorized. Yoakum pleaded guilty on May 20, 1991 to the charge of felony stealing as a persistent offender. Pursuant to a plea agreement, Yoakum was sentenced to ten years imprisonment. From the original appointment of counsel to his sentencing, Yoakum was represented by four different attorneys. Initially, Yoakum was represented by public defender T. Dale Nicklas (Nicklas) who withdrew from representing Yoakum approximately three months before Yoakum entered his guilty plea. Nicklas withdrew because he transferred from the Chillicothe Public Defender Office to the Liberty Public Defender Office. Thereafter, two other public defenders represented Yoakum. Yoakum then retained private counsel, Lester E. Adams (Adams), to represent him.

The case was set for trial on May 6, 1991. On April 25, 1991, Adams entered his appearance as counsel for Yoakum and moved for a continuance of the trial setting. On April 29th, the public defender office was permitted to withdraw and the public defender delivered Yoakum's file to Adams. The court sustained Yoakum's motion for continuance and reset the case for trial on May 20, 1991. On the date of trial, the State and Yoakum announced that they were ready to proceed. After the court held a hearing and found Yoakum to be a persistent offender, the parties advised the court that Yoakum would enter a plea of guilty under a plea agreement rather than proceed to trial.

The court examined Yoakum, before accepting his guilty plea, as to the basis and voluntariness of the plea. The court explained to Yoakum the constitutional rights he would be waiving by pleading guilty. Yoakum stated that he understood those rights and had consulted with his attorney. Yoakum recounted the events that gave rise to the charge against him and advised the court that he was pleading guilty because he was in fact guilty. He also indicated that he had sufficient time to consult with counsel prior to pleading guilty and that his plea was not the result of force or threat. Yoakum stated that he was satisfied with Adams' representation. Later at his sentencing, Yoakum expressed dissatisfaction with Nicklas and complained that Adams did not have sufficient time to prepare for trial. Yoakum stated that Adams did as much as he could within the time available.

Yoakum filed a pro se Rule 24.035 motion on August 15, 1991. On October 15, 1991, Yoakum filed an amended motion alleging the two points he now raises on appeal. The motion court held an evidentiary hearing on December 13, 1991 and entered its order on January 6, 1992. The court found that Yoakum failed to prove his claim of ineffective assistance of counsel and that his guilty plea was voluntarily and intelligently entered.

The appellate court, on appeal of the denial of a Rule 24.035 motion, is limited to a determination of whether the motion court's findings and conclusions are clearly erroneous. Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991). The findings and conclusions of the motion court are clearly erroneous only if, after reviewing the entire record, the court is left with the definite impression that the motion court made a mistake. Id. Movant faces a heavy burden in establishing a claim for ineffective assistance of counsel. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987). Not only must the defendant prove his or her allegations by a preponderance of the evidence, but the defendant must overcome the court's presumption that counsel is competent. Amrine v. State, 785 S.W.2d 531, 534 (Mo. banc 1990).

The United States Supreme Court set forth the following two-pronged test in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), for establishment of claims of ineffective assistance of counsel: 1) defendant must prove that his or her attorney failed to exercise the skill and diligence that a reasonably competent attorney would have exercised in a similar situation; and 2) defendant must show that the attorney's failure to act in a reasonably competent manner prejudiced the defendant. A criminal defendant must prove both prongs of the Strickland test to prevail. Amrine, 785 S.W.2d at 534. Movant will not prevail simply by showing that counsel has erred in a professionally unreasonable manner. Strickland, 104 S.Ct. at 2066. Movant must demonstrate that, but for the professionally unreasonable conduct of counsel, there is a reasonable probability that the outcome of the proceeding would have been different. Id. at 2068.

The United States Supreme Court held in Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985), that the Strickland test applies to guilty plea challenges based on ineffective assistance of counsel. To satisfy the prejudice requirement of the second prong, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Id. 106 S.Ct. at 370.

Yoakum argues in Point I that the motion court clearly erred in denying his Rule 24.035 motion because Yoakum was denied effective assistance of counsel by the failure of Yoakum's guilty plea counsel, Adams, to investigate and prepare Yoakum's case for trial which resulted in Yoakum's entry of an involuntary, unknowing and unintelligent guilty plea in violation of the Sixth and Fourteenth Amendments to the U.S. Constitution and Article I, § 18(a) of the Missouri Constitution. Yoakum argues that because Adams failed to investigate and prepare his case for trial, he was forced to accept the State's plea offer on the day of trial. Yoakum asserts that Adams did not contact the State's witnesses and failed to advise Yoakum of the punishment possibilities he faced as a persistent offender. Yoakum contends that such ineffective assistance of counsel rendered his guilty plea involuntary and unintelligent.

By entering a guilty plea, the defendant generally waives any future complaints he or she might have regarding trial counsel's failure to investigate. Fox v. State, 819 S.W.2d 64, 66 (Mo.App.1991). Claims of ineffectiveness of counsel are only relevant in regard to the voluntariness of the guilty plea. State v. Rahberger, 747 S.W.2d 724, 725 (Mo.App.1988). To succeed on an ineffective assistance of counsel claim based on inadequate investigation, movant must specifically describe the information the attorney failed to discover, allege that a reasonable investigation would have resulted in the discovery of such information and prove that the information would have aided or improved movant's position. Fox, 819 S.W.2d at 66. Only in rare cases does a court find counsel's failure to interview witnesses to be sufficient to support a claim of ineffective assistance of counsel. Sanders v. State, 738 S.W.2d at 858.

Yoakum's primary concern prior to trial was whether the co-defendants, being his friends, would be willing to testify against him. Yoakum and Adams concluded that the co-defendants' presence at the courthouse on the date of the trial meant that the witnesses would present testimony detrimental to Yoakum. Upon a belief that Yoakum's co-defendants, as witnesses for the prosecution, would have presented testimony sufficient to convict him and desirous of avoiding the maximum range of punishment, Yoakum decided to plead guilty.

At the hearing on his post-conviction motion, Yoakum proved that prior to trial Adams failed to interview his co-defendants to discover what trial testimony could be expected from the co-defendants. Yoakum did not allege or prove, however, what specific information Adams could have discovered if he had interviewed the co-defendants or conducted additional investigation. It is the movant's responsibility to prove that a more extensive investigation would have produced evidence to improve movant's trial position. Stuckey v State, 756 S.W.2d 587, 592 (Mo.App.1988). There is no basis on which to conclude that further investigation would have resulted in Yoakum choosing to proceed to trial instead of pleading guilty.

Yoakum also argues that by failing to request additional time to properly prepare and investigate Yoakum's case, Adams did not provide effective assistance of counsel. Even if Adams should have sought a continuance under the "reasonably competent attorney" standard of the first prong of the Strickland test, Yoakum has failed to prove, under the second prong of the test, that he was prejudiced by Adams' failure to do so. Yoakum fails to allege specific facts as to what might have occurred or been discovered if Adams had sought and received a second continuance. To...