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Bello v. State

Court of Appeals of Missouri, Western District, Second Division

June 30, 2015

DEMARIO R. BELLO, Appellant,
v.
STATE OF MISSOURI, Respondent

Page 285

APPEAL FROM THE CIRCUIT COURT OF PLATTE COUNTY, MISSOURI. THE HONORABLE ABE SHAFER, IV, JUDGE.

Gregory A. Doty, for Appellant.

Shaun Mackelprang, for Respondent.

Before DivisionTwo: Lisa White Hardwick, Presiding Judge, Victor C. Howard, Judge and Cynthia L. Martin, Judge.

OPINION

Page 286

VICTOR C. HOWARD, JUDGE

Demario Bello appeals the denial of his Rule 24.035 motion for post-conviction relief after an evidentiary hearing. Bello pleaded guilty to felony charges of second degree assault of a law enforcement officer, resisting a lawful stop, and possession of a controlled substance, and misdemeanor driving while revoked pursuant to a plea agreement with the prosecutor. The court accepted Bello's guilty pleas and sentenced him within the range of punishment. Bello sought to vacate his convictions and sentences arguing that plea counsel was ineffective for failing to object to the large number of uniformed police officers present in the courtroom at sentencing or to request that the number of uniformed police officers be limited or that off-duty officers be made to wear street clothes. Bello also argues that he was abandoned by post-conviction counsel when claims from his pro se motion were not included in post-conviction counsel's amended motion. Bello's appeal is dismissed in part and the judgment is affirmed.

Background

On July 31, 2011, Officer Bradley Dingman pulled over Bello, who stated that he did not have his driver's license with him. Captain John Jordan arrived on the scene to assist. It appeared that Bello was going to attempt escape, and Captain Jordan tried to restrain him, but Bello broke free, and after a struggle, managed to get back into his car. Bello then started the car and drove away, dragging Captain Jordan alongside the vehicle, crossing over lanes of traffic where there were other vehicles, and finally crashed into a light pole. Bello then fled on foot but was captured. Cocaine powder was found on Bello's shorts, and officers found a baggy of cocaine in his vehicle.

Captain Jordan suffered extensive and severe injuries from Bello dragging him through traffic, requiring him to be treated in the intensive care unit for two days. Captain Jordan's injuries required him to have multiple surgeries, and at the time of Bello's guilty pleas, he faced the prospect of additional surgeries in the future.

On May 3, 2012, Bello pleaded guilty to felony charges of second degree assault of a law enforcement officer, § 565.082.1(2), RSMo Cum. Supp. 2009, resisting a lawful stop, § 575.150, RSMo Cum. Supp. 2013, and possession of a controlled substance, § 195.202, RSMo Cum. Supp. 2010, and misdemeanor driving while revoked, § 302.321, RSMo Cum. Supp. 2005. At the guilty plea hearing, the court questioned Bello to ensure that his guilty pleas were knowing, intelligent, and voluntary,

Page 287

and to ensure that there was a factual basis for the pleas. Bello testified that he understood the range of punishment, which included up to fifteen years for the assault, four years for resisting arrest, seven years for possession of a controlled substance, and a year for driving while revoked. He testified that he knew about the State's earlier plea offer of twelve years and that he had rejected it. Bello stated that he knew that sentencing would be up to the court and that the court would not be bound by any recommendation in the sentencing assessment report (SAR). The court accepted Bello's pleas and found him guilty of each offense charged.

A sentencing hearing took place June 21, 2012. The court stated it had reviewed the State's recommendation and attached letters, the letters submitted by the defense, and the SAR.

The State presented testimony from Captain Jordan's physical therapist, Captain Jordan, Captain Jordan's son, and Captain Jordan's wife. The State recommended consecutive sentences of fourteen years for the assault charge and three years for resisting arrest, as well as six years for possession and one year for driving while suspended, to run concurrently with the other sentences.

Counsel for Bello requested " fairness" and asked the court to acknowledge that he had " taken full responsibility for his actions[.]" Counsel said that Bello told him he would not put Captain Jordan and his family through the burden of testifying at trial. Counsel urged the court to consider community structured sentencing such as work release, so that Bello could continue to work at being " a better example" for his three-year-old son. Counsel argued that Bello had panicked and was not maliciously trying to hurt an officer. Counsel said Bello did not take the plea offer of twelve years because he could not put his son through being away from him that long, so he was requesting the court to consider other options but ultimately " laying himself at the mercy of the court."

Testimony from Bello's family and girlfriend was sympathetic to Captain Jordan and his family, expressed Bello's good qualities, and requested leniency and fairness. Bello's girlfriend testified also about ...


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