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Routt v. State

Court of Appeals of Missouri, Eastern District, Third Division

July 26, 2016


         Appeal from the Circuit Court of St. Charles County 1411-CC00786 Honorable Richard K. Zerr.

          ROBERT M. CLAYTON III, Presiding Judge

         Jeremy Lee Scott Routt ("Movant") appeals the judgment denying his Rule 24.035[1]motion for post-conviction relief without an evidentiary hearing. Movant's sole argument on appeal is that the motion court clearly erred in denying him an evidentiary hearing on his claim sentencing counsel was ineffective for failing to investigate and call his stepsister Stephanie Chandler ("Stepsister") as a witness at his sentencing hearing. Further, Movant asserts that he had never met or communicated with sentencing counsel in any form until three minutes before the sentencing hearing began and they never had a conversation about any potential witnesses. We reverse the motion court's judgment and remand the cause for an evidentiary hearing.

         I. BACKGROUND

         Movant was charged with six counts. Counts I, II, and III were charges for attempted first-degree robbery, unlawful possession of a firearm, and stealing a firearm, respectively. Those charges alleged in relevant part that on June 4, 2013, Movant arranged to sell a half pound of marijuana to an undercover detective, Detective Curtis Sullivan, for $2, 500; Movant stole a nine-millimeter gun; and Movant drove to meet Detective Sullivan with the intention of robbing him. Counts IV-VI, charges for distribution of a controlled substance, accused Movant of selling more than five grams of marijuana to Detective Sullivan on three different dates in May 2013.

         Movant was represented by different public defenders at his guilty plea hearing and sentencing hearing. At his guilty plea hearing, Movant, who had a history of drug use and who had been adjudged a prior and persistent offender, appeared with his plea counsel[2] and pleaded guilty to all six charges without any plea bargain.[3] Due to Movant's prior and persistent offender status, Movant was subject to a range of punishment of five years to a potential of life imprisonment on Counts I, IV, V, and VI and a range of one day to one year in a medium security institution or one to fifteen years of imprisonment plus the possibility of a fine up to $5, 000 for Counts II and III.

         A. Movant's Sentencing Hearing

         Movant's sentencing hearing took place on March 10, 2014, and Movant appeared with his sentencing counsel.[4] Movant's Sentencing Assessment Report ("SAR")[5] indicated that while Movant was not eligible for a long-term drug treatment program, he was eligible for a short-term program. The SAR also indicated Movant had prior convictions for second-degree robbery, armed criminal action, second-degree burglary, stealing, and receiving stolen property.

         The prosecutor called two witnesses at Movant's sentencing hearing. First, Lieutenant Jay Hultz testified a narcotics investigation conducted by Detective Sullivan in May 2013 revealed Movant had a "violent criminal history." Lieutenant Hultz also testified that, on June 4, 2013, when a drug transaction was supposed to take place in front of a restaurant on a mall parking lot, Movant brought a taser and unloaded handgun and intended to rob Detective Sullivan. Detective Sullivan testified that his investigation of Movant revealed "he was a very dangerous person [and] had a violent criminal history associated with weapons." Detective Sullivan also testified, "[k]nowing that [Movant] was a particularly dangerous person and [ ] that he had just been released from [prison], we knew that he ran the risk of an elevated danger, if you will, because he ha[d] a tendency and a history which exhibit[ed] violence in his past."

         Sentencing counsel called one witness at Movant's sentencing hearing, Movant's mother ("Mother"), who testified as follows. Mental illness runs in Movant's Mother's family, and Movant's Mother unsuccessfully tried to get Movant help from police, courts, and doctors. Movant, who was twenty-four years old at the time of the sentencing hearing, first came into contact with the criminal justice system when he was about nine years old due to behavioral issues relating to him having ADHD and being bipolar. In addition, when Movant was about eleven years old, his Mother turned him into the police because he was smoking marijuana. Movant also sold drugs and stole from his family members, including his Mother.

         Movant's Mother also testified doctors had prescribed several different medications for Movant but none worked. In addition, doctors had wanted Movant to attend an inpatient treatment center so they could diagnose him and treat him properly, but Movant did not attend because his family could not afford it, and Movant had never received adequate medication or drug treatment. After Movant was released from prison in 2013, Movant's mental disorders caused him to have a difficult time functioning, and Movant would tell his Mother every day "how bad he just wanted to commit suicide because he couldn't handle how bad his brain spun."

         Movant then made a statement to the court. He told the court he has had problems with illnesses and addictions for his entire life. Movant also told the court he needed and was asking for help, was sorry for his actions, and wanted to be a normal person in society. Movant stated he had been in and out of prison since he was sixteen years old and every time he got out, "anxiety [would] kick[ ] in and [he didn't] know what to do, " and "[he would] turn to drugs and everything else." Movant further stated he was "tired of that lifestyle" and was ready to change.

         The prosecutor argued during Movant's sentencing hearing that Detective Sullivan had a family and there were many innocent bystanders with families in the restaurant parking lot where Movant's attempted robbery occurred. The prosecutor told the court, "if [Movant] would have pulled that gun, whether it had bullets in the clip or not, somebody could have been hurt or killed." The prosecutor also highlighted Movant's prior criminal history, telling the court Movant had previously robbed somebody with a weapon. The prosecutor asked the court to sentence Movant to twenty-five years for the attempted first-degree robbery charge, ten years for the charges of unlawful possession of a firearm and stealing a firearm, and twenty years for each of the three charges of distribution of a controlled substance.

         Thereafter, sentencing counsel argued to the trial court that the gun used in the attempted robbery involving Detective Sullivan was not loaded, and Movant had a mental illness which interfered with his ability to function in society without some intervention. Counsel also asserted Movant's Mother was not able to get help for Movant, and his illness caused him to be certified as an adult and sent to prison at the age of sixteen. Sentencing counsel acknowledged Movant's SAR reflected he had past convictions but encouraged the court to recognize Movant could be rehabilitated if he was given the right treatment and right medication. Counsel asked the court for its mercy and to temper Movant's sentence with the requirement of completing a long-term drug treatment program.

         The trial court made several comments on the record during the sentencing hearing. The court indicated it was concerned with the dangerous nature of Movant's attempted first-degree robbery offense involving Detective Sullivan, stating, "[Movant] candidly says he intended to rob this detective of twenty-five hundred dollars, albeit with a gun that was not loaded. [It was] [s]till a situation which was dangerous." The trial court also indicated it was concerned with Movant's criminal history, noting how in the six-month period Movant was out of prison after being placed on parole for armed robbery and armed criminal action, he committed the six felonies he pleaded guilty to in this case, including another (attempted) robbery.

         In addition, the court expressly considered Movant's Mother's testimony and acknowledged Movant had some issues which had never been successfully dealt with or treated. The court also stated it believed Movant had a hard life because he had been sentenced to the adult prison system at the age of sixteen, he had spent nearly his entire adult life in prison, and he had some mental issues which may have caused him to be more susceptible to drug use than others. The trial court acknowledged it could order Movant to be placed in a long-term drug treatment program even though Movant's SAR did not indicate he was eligible for such a program, but the court stated it was not convinced it would help Movant. The trial court did not expressly consider placing Movant in a short-term drug treatment program, even though Movant's SAR reflected he was eligible for such a program.

         The trial court sentenced Movant to twenty years of imprisonment for Count I (attempted first-degree robbery), ten years of imprisonment for Count II (unlawful possession of a firearm), ten years of imprisonment for Count III (stealing a firearm), and fifteen years of imprisonment for Counts IV through VI (distribution of a controlled substance). The court ordered the sentences for Counts II-VI to run concurrently with one another but consecutively with the sentence for Count I, for a total sentence of thirty-five years of imprisonment.

         Upon questioning from the trial court, Movant repeatedly expressed his dissatisfaction with sentencing counsel's performance and stated he had never met or communicated with counsel in any form until three minutes before the sentencing hearing began and they never had a conversation about any potential witnesses.[6] Nevertheless, the court stated on the record it was "mak[ing] no finding as to any probable cause relating to effectiveness of [sentencing] counsel."

         B. Movant's Rule 24.035 Motion and the Motion Court's Judgment

         Thereafter, Movant timely filed a pro se Rule 24.035 motion for post-conviction relief.[7]The motion court appointed post-conviction counsel for Movant, and appointed counsel timely filed an amended Rule 24.035 motion on May 26, 2015.[8] Movant's amended Rule 24.035 motion alleged sentencing counsel was ineffective for failing to investigate and call his Stepsister as a witness at his sentencing hearing. Movant's motion also alleged that if sentencing counsel had communicated with him more and asked him about potential witnesses, Movant would have told counsel he wanted his Stepsister to testify on his behalf. In addition, Movant alleged he would have provided ...

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