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Simmons v. State

Court of Appeals of Missouri, Western District, Third Division

April 28, 2015

THOMAS E. SIMMONS, Appellant,
v.
STATE OF MISSOURI, Respondent

April 28, 2015, Filed

Appeal from the Circuit Court of Jackson County, Missouri. The Honorable J. Dale Youngs, Judge.

For Appellant: Amy M. Bartholow, Assistant Public Defender, Columbia, MO.

For Respondent: Chris Koster, Attorney General, Adam Rowley, Assistant Attorney General, Jefferson City, MO.

Before Division III: Mark D. Pfeiffer, Presiding Judge, and Gary D. Witt and Anthony Rex Gabbert, Judges. Gary D. Witt and Anthony Rex Gabbert, Judges, concur.

OPINION

Mark D. Pfeiffer, Presiding Judge

Page 504

Thomas Simmons (" Simmons" ) appeals the judgment of the Circuit Court of Jackson County, Missouri (" motion court" ), denying, after an evidentiary hearing, his motion for post-conviction relief pursuant to Rule 24.035. On appeal, Simmons claims that the motion court clearly erred in refusing to grant his motion because his guilty pleas were not knowingly and intelligently entered. We affirm.

Factual and Procedural Background

In April of 2009, Simmons was charged with six different offenses in connection with a string of burglaries and property theft incidents occurring in the Kansas City metropolitan area. While Simmons's case was pending, he made numerous attempts to contact, among others, potential witnesses who were scheduled to testify against him. As a result, the State filed an amended information charging Simmons with an additional two counts of tampering with a witness or with a crime victim.

On the day Simmons's criminal trial was to begin, Simmons and the State reached a plea agreement. Pursuant to the plea agreement, Simmons agreed to enter an Alford [1] plea to four class C felonies: stealing, tampering in the first degree, and two counts of receiving stolen property. In return, the State agreed to drop the other four charges against Simmons and to recommend a sentence not to exceed eight years (concurrent) on all of the charges to which Simmons pled guilty.

At the plea hearing, the State identified the evidence that it intended to produce at Simmons's criminal trial, some of which the State had obtained pursuant to having placed a GPS unit on the bottom of an automobile that Simmons drove in order to track Simmons's movements. At the time of the plea, the plea court and all of the parties, including Simmons himself, were aware that another case wherein a GPS unit had been attached to a criminal suspect's car ( United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012)) was pending before the United States Supreme Court. The uncertainty in the law regarding whether the State's placement of the GPS unit on Simmons's car constituted a warrantless search of Simmons for Fourth Amendment purposes served as a motivating factor behind the State's plea offer and Simmons's acceptance of the plea offer.

During the plea court's questioning of Simmons to ensure that Simmons understood the consequences of his guilty plea,

Page 505

the plea court and Simmons discussed the Fourth Amendment issues in particular:

Q: (By the court) And the Court of Appeals or even the Supreme Court might hear your case and the issues that have come up already in this case including the suppression issues that we have been talking about and if you were convicted evidence that might have come up and come in during the course of the trial; and they would have all kinds of options available to them including reversing your conviction or sending it back to me for a new trial. All of these options would be available [if Simmons did not plead guilty but went to trial].
The bottom line is do you understand you would have a right to appeal any conviction?
A: Right.
Q: And . . . your attorney in this case has already filed several motions. We have had a number of days of hearings on various motions to suppress evidence and to keep out certain kinds of evidence. And your lawyer on your behalf has the right to assert any of these defenses that you have, and I might agree at some point during the course of the case to go his way on some of those. I might agree to limit the State's ability to offer and admit evidence against you. Do you understand you have all of these rights for him to do this on your behalf?
A: Right. Can I ask you a question?
Q: Yes, sir.
A: In the event that the Supreme Court came back on the GPS issue do I have a right ...

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