Court of Appeals of Missouri, Eastern District, Third Division
April 28, 2015
COREY A. WIGGINS, Movant,
STATE OF MISSOURI, Respondent
from the Circuit Court of St. Louis County. 13SL-CC04554.
Robinson, St. Louis, MO, for appellant.
Koster, Todd T. Smith, Jefferson City, MO, for respondent.
M. Gaertner, Jr., Judge.
A. Wiggins (Movant) appeals the judgment denying his motion
for post-conviction relief under Rule 24.035 without an
evidentiary hearing. Movant argues that he adequately alleged
facts, not refuted by the record, that established his guilty
plea was involuntary. We reverse and remand to the motion
court for an evidentiary hearing.
pled guilty to one count of murder in the second degree and
one count of armed criminal action. Movant's pleas arose
out of an incident during a family gathering on Thanksgiving
Day in 2012, when Movant and the victim got into an argument
and Movant shot the victim. The plea court sentenced Movant
to consecutive terms of life in prison for second-degree
murder, and nine years for armed criminal action.
timely filed his motion under Rule 24.035, alleging that his
plea counsel was ineffective for failing to advise him before
he pled guilty of the viability of proceeding to trial on the
theory that he was guilty of the lesser-included offense of
voluntary manslaughter, rather than second-degree murder.
Movant alleged his plea counsel was aware of the following
facts that would have supported such a defense.
alleged that the victim was a friend of Movant's family
whom Movant had known all his life. Movant described a
history of the victim verbally and sexually abusing Movant
since he was a child. Movant alleged that the victim harassed
and threatened him several times during the days before the
shooting. The morning of Thanksgiving, the victim approached
Movant with a screwdriver and grabbed him by the neck. Movant
also alleged that during the argument later that day, before
Movant stood to shoot the victim, the victim came over to the
table where Movant was seated and stood next to him holding a
screwdriver and making threatening comments. A heated
argument followed, during which the victim told Movant,
" I'll have your ass right now." Movant
believed the victim might do something sexual in nature to
him. Movant alleged that he stood up from the table, and the
victim came at him with the screwdriver. Movant alleged that
at that point he " lost it" and shot the victim
argued in his motion that although his plea counsel was aware
of these facts, he never discussed the possibility of
proceeding to trial and arguing Movant committed voluntary
manslaughter rather than second-degree murder. The motion
court denied Movant's motion without an evidentiary
hearing, finding that the record conclusively refuted his
claim. Specifically, the motion court held that the plea
hearing record showing the prosecutor's recitation of the
factual basis of the case and Movant's agreement to it
refuted the facts alleged in Movant's motion. The motion
court also found that the record refuted Movant's claim
that his counsel was ineffective because Movant repeatedly
assured the plea court that he was satisfied with the
representation provided by his attorney. This appeal follows.
Appellate review of the denial of a motion under Rule 24.035
is " limited to a determination of whether the motion
court's findings of fact and conclusions of law were
clearly erroneous." Rule 24.035(k); see Weeks v.
State, 140 S.W.3d 39, 44 (Mo. banc 2004). Because the
findings of the motion court are presumed to be correct, we
will find them clearly erroneous only if, after a review of
the entire record, this Court is left with the definite and
firm impression that a mistake has been made. Vaca v.
State, 314 S.W.3d 331, 334 (Mo. banc 2010).
order to obtain an evidentiary hearing on a claim of
ineffective assistance of counsel under Rule 24.035, (1) a
movant must raise facts, not conclusions, warranting relief;
(2) the facts alleged must raise matters not refuted by the
record; and (3) the matters complained of must have resulted
in prejudice to the movant. State v. Driver, 912
S.W.2d 52, 55 (Mo. banc 1995). To justify the denial of an
evidentiary hearing, the record must be specific enough to
conclusively refute the movant's allegation. Lomax v.
State, 163 S.W.3d 561, 563 (Mo. App. E.D. 2005) (quoting
Driver, 912 S.W.2d at 55).
sole point on appeal, Movant argues that the motion court
clearly erred in denying his motion without an evidentiary
hearing because he sufficiently alleged facts that if true
would establish that his plea counsel was ineffective. We
warrant an evidentiary hearing on his claim of ineffective
assistance of counsel, Movant must allege unrefuted facts
showing that his counsel's performance fell below an
objective standard of reasonableness and that he was
prejudiced thereby. See Lafler v. Cooper,
132 S.Ct. 1376, 1384, 182 L.Ed.2d 398 (2012). Where there is
a plea of guilty, a claim of ineffective assistance of
counsel is immaterial " except to the extent that the
conduct affected the voluntariness and knowledge with which
the plea was made." Worthington v. State, 166
S.W.3d 566, 573 (Mo. banc 2005). If Movant successfully
alleges counsel's performance was deficient, he must also
allege that there is a reasonable probability that but for
counsel's ineffectiveness, he would not have pled guilty
and would have demanded a trial. See Savage v.
State, 114 S.W.3d 455, 457 (Mo. App. E.D. 2003).
Movant alleged in his motion that his plea counsel failed to
discuss with him the viability of arguing for a conviction of
voluntary manslaughter rather than second-degree murder
despite plea counsel knowing of facts that might support such
a defense. Failure by plea counsel to advise a defendant of a
possible defense may render a guilty plea unknowing and
involuntary. See Bequette, 161 S.W.3d at 908 (reversing for
evidentiary hearing on claim that defense counsel failed to
inform movant of possible defense and failed to investigate
witness who could support that defense). While counsel may
ultimately advise a defendant to plead guilty based on the
circumstances in a given case, counsel still has the basic
duty to discuss the circumstances and possible consequences
of entering a plea, including possible defenses to the
offense charged, in order to ensure that the defendant makes
an informed and intelligent decision about waiving the right
to trial. See Cooper v. State, 356 S.W.3d 148, 153
(Mo. banc 2011) (plea must be knowing and intelligent act
done with sufficient awareness of relevant circumstances and
likely consequences); Estes v. State, 950 S.W.2d
539, 543 (Mo. App. E.D. 1997) (counsel has duty to discuss
possible consequences of pleading guilty).
Voluntary manslaughter is a class B felony, defined as
causing the death of another person under circumstances that
would constitute murder in the second degree, except that the
death was caused " under the influence of sudden passion
arising from adequate cause."  Section 565.023.1,
565.023.3. In contrast to the life sentence
Movant agreed to by pleading guilty, a class B felony carries
a possible prison term of five to 15 years. Section
558.011.1(2). Movant argued that the facts he alleged
supported the conclusion that he was guilty of voluntary
manslaughter rather than second-degree murder, and had his
counsel discussed such a defense with him, he would not have
pled guilty but would have gone to trial.
motion court recognized that if the facts contained in
Movant's motion were true, " he may well have been
entitled to argue for the lesser-included offense of
voluntary manslaughter." However, the motion court found
that the facts Movant affirmed in his plea hearing refuted
these facts. Specifically, the State recited the following
[T]he State's evidence would have been that the defendant
and the victim in this case were arguing, verbally arguing,
over Thanksgiving dinner last year. The argument culminated
when the defendant stood up from the table and shot the
victim multiple times while the victim was still seated at
plea court then said to Movant, " You've heard the
prosecutor's statement. Is that correct?" Movant
replied, " Yes, your Honor." The motion court
concluded this established Movant shot the victim during a
solely verbal argument while the victim was still seated at
the table, and because of this, Movant would not have been
able to show the elements of " sudden passion" or
" adequate cause" required for the defense of
voluntary manslaughter. See State v. Scheets, 849
S.W.2d 637, 638 (Mo. App. E.D. 1993) ( mere words do not
suffice as adequate cause).
the factual basis underlying a guilty plea is not always a
complete account of the circumstances surrounding the crime,
nor is it meant to be. It is often simply a recital of the
elements the State expects to prove at a trial, and it is not
even necessary that the defendant agree entirely with the
facts recited by the State in order for his or her plea to be
voluntary. See State v. Morton, 971 S.W.2d 335, 340
(Mo. App. E.D. 1998) (prosecutor's statement that he is
prepared to prove facts during trial that would constitute
crime is sufficient to establish factual basis; defendant
does not have to agree so long as defendant understands
facts); Bird v. State, 657 S.W.2d 315, 316 (Mo. App.
E.D. 1983) (citing North Carolina v. Alford, 400
U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1070)) (where movant
admitted stealing but equivocated regarding value of stolen
property, this Court nevertheless found plea was voluntary).
The gravamen is whether the defendant understands the nature
of the offense and the consequences of giving up his or her
right to proceed to trial. See State v. Taylor, 929
S.W.2d 209, 217 (Mo. banc 1996) (court is not required to
explain every element so long as defendant understands nature
light, we do not agree that Movant's acknowledgment of
the State's anticipated evidence conclusively refuted the
facts Movant alleged in his motion. Even if a jury were to
believe that the victim was still seated when Movant shot
him, they could also believe the victim brandished a
screwdriver. In light of the ongoing past abuse Movant
alleged, the confrontations between Movant and the victim in
the days leading up to the shooting, as well as former
threats with a screwdriver specifically on the morning of the
shooting, a court could have determined an instruction on
voluntary manslaughter was proper. See State v.
Avery, 120 S.W.3d 196, 205 (Mo. banc 2003) ( while words
alone are not adequate cause, " little more is
required" ; evidence of former provocation may be
relevant to show why events immediately before killing amount
to sudden passion arising from adequate cause); State v.
Branch, 757 S.W.2d 595, 599 (Mo. App. E.D. 1988) (where
defendant shot victim when victim was intoxicated, evidence
of victim's past abuse of defendant while intoxicated may
have caused jury to reject deliberation or premeditation).
there is no guarantee that Movant would have successfully
convinced a jury that he committed voluntary manslaughter
rather than second-degree murder, he was entitled to weigh
that option before pleading guilty. Under the particular
circumstances here, we cannot say that the factual basis
Movant acknowledged at his plea hearing conclusively refuted
Movant's claim that his trial counsel was ineffective for
failing to discuss this option. The motion court's
judgment was clearly erroneous in this respect.
However, the motion court also found the record specifically
refuted Movant's allegation that counsel failed to
discuss possible defenses with him. The motion court noted
the following colloquy from Movant's plea hearing:
THE COURT: Now, do you believe you've had sufficient time
to talk to [your attorney] about these charges?
[MOVANT]: Yes, your Honor.
THE COURT: Has he answered all the questions you asked him?
[MOVANT]: Yes, your Honor.
THE COURT: Has he shared all the...factual information of the
evidence of the crime?
[MOVANT]: Yes, your Honor.
THE COURT: And is there anything you asked him to do that he
refused to do?
[MOVANT]: No, your Honor.
THE COURT: And do you have any complaints about his
[MOVANT]: No, your Honor.
THE COURT: Are you satisfied with his services?
[MOVANT]: Yes, you Honor.
accepting Movant's plea, the plea court again asked
Movant whether he was satisfied with his counsel's
services, and Movant responded, " Yes, your Honor."
Based on this, the motion court concluded that even were a
defense of voluntary manslaughter available, Movant's
assurances that he was satisfied with his trial counsel
refuted his claim that counsel failed to discuss it with him
before he pled guilty.
questions about counsel's performance and the responses
to them must be specific, and general inquiries about a
movant's satisfaction with counsel are not enough to
conclusively refute a claim of ineffective assistance.
Driver, 912 S.W.2d at 56. In Muhammad v. State, this Court
noted that where a movant claimed he was unaware of the
possibility of arguing self-defense or a lesser-included
offense at trial, the plea court had specifically asked the
movant whether his attorney had discussed possible defenses
and the movant said yes. 367 S.W.3d 659, 663 (Mo. App. E.D.
2012). Additionally, this Court found the record did not
support the conclusion that the movant was unaware of the
basic principles of self-defense or the concept of
lesser-included offenses. Id.
here, the plea court did not ask Movant specifically whether
his plea counsel had explained any available or known
defenses to him, or if plea counsel had fully advised Movant
as to all aspects of the case. Further, while self-defense is
evident, the concept of sudden passion arising from adequate
cause is not as evident to a non-lawyer. Especially here,
given that it is based on the possibility that his history
with the victim as well as events leading up to the shooting
may have been relevant to show a context leading to sudden
passion arising from adequate cause, we find nothing in the
record to refute Movant's allegation that he was not
aware of the possibility of making this argument.
it may be that Movant's counsel did in fact discuss with
him the possibility of proceeding to trial and requesting a
conviction for voluntary manslaughter before Movant pled
guilty, there is no way to know without an evidentiary
hearing. See Buckner v. State, 995 S.W.2d 47, 50
(Mo. App. W.D. 1999) (noting only evidentiary hearing can
resolve issue of whether counsel discussed merits of filing
motion to suppress evidence with movant). Movant's
alleged facts, taken as true, suggest the existence of a
possible defense that counsel should have discussed with
Movant prior to the guilty plea, and those facts are not
conclusively refuted by this record.
Finally, Movant alleged that he was prejudiced because had
his counsel discussed this possibility with him, he would not
have pled guilty but would have proceeded to trial. Though
proceeding to trial would have presented a significant risk
for Movant in light of the State's recital of its
evidence, specifically the risk of the jury rejecting such an
argument and sentencing Movant to life in prison without any
possibility of parole; again, without the benefit of an
evidentiary hearing, we must take Movant at his word.
because Movant sufficiently pled unrefuted facts that would
entitle him to relief on his claim under Rule 24.035, we
conclude the motion court clearly erred in denying his motion
without an evidentiary hearing. Point granted.
reverse the motion court's judgment and remand for the
purpose of conducting an evidentiary hearing on Movant's
motion prior to entry of judgment.
Odenwald, P.J., concurs.Robert G. Dowd, Jr., J., concurs.
All rule references are to Mo. Crim. P.
(2014), unless otherwise indicated.
" Sudden passion" is "
passion directly caused by and arising out of provocation by
the victim, or another acting with tire victim, which passion
arises at the time of the offense and is not solely the
result of former provocation," Section
565.002(7), RSMo. (2000). " Adequate cause" is
" cause that would reasonably produce a degree of
passion in a person of ordinary temperament sufficient to
substantially impair an ordinary person's capacity for
self-control." Section 565.002(1).
All statutory references are to RSMo.
(2000), unless otherwise indicated.