Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cusumano v. State

Court of Appeals of Missouri, Eastern District, Third Division

August 2, 2016

RICK J. CUSUMANO, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of St. Louis County 12SL-CC01524 Honorable Mark D. Seigel

          OPINION

          James M. Dowd, Judge.

         In February 2010, Rick Cusumano was charged with three felonies for the August 5, 1988 sexual assault of a woman ("Victim") in Chesterfield, Missouri. Count I charged Cusumano with the class A felony of forcible rape based on allegations that Cusumano, while acting with another, knowingly and forcibly had sexual intercourse with Victim without her consent while displaying a deadly weapon in a threatening manner. Count II also charged Cusumano with the class A felony of forcible rape, but while the charging document restated the allegations in Count I, it alternatively charged that if Cusumano did not display a deadly weapon in a threatening manner, then he committed the offense by subjecting Victim to sexual intercourse with more than one person. Last, Count III charged Cusumano with the class A felony of forcible sodomy based on allegations that Cusumano, while acting with another, knowingly and forcibly had deviate sexual intercourse with Victim while displaying a deadly weapon in a threatening manner.

         Cusumano was convicted in September 2010, after a jury trial in the Circuit Court of St. Louis County, of one count of the lesser included, unclassified[1] felony of forcible rape, and of one count of the lesser included, unclassified felony of forcible sodomy. The trial court sentenced Cusumano to two concurrent terms of life in prison. Cusumano appealed his convictions in State v. Cusumano, 358 S.W.3d 137 (Mo.App.E.D. 2011), and this Court affirmed. Cusumano then filed a Rule 29.15 motion for post-conviction relief. An evidentiary hearing was held, and Cusumano's motion was denied. We now consider his appeal of the motion court's ruling.

         Cusumano's primary argument is that the motion court clearly erred in failing to find that trial counsel's unreasonable and erroneous defense strategy-which involved counsel submitting lesser included offense instructions that waived the statute-of-limitations bar to Cusumano's ultimate convictions in this case, solely to support an untenable and largely unintelligible defense theory unsupported by Missouri law-constituted the ineffective assistance of counsel resulting in prejudice to Cusumano. We agree, and we reverse and remand for a new trial.[2]

         Standard of Review

         We review the denial of a Rule 29.15 motion for post-conviction relief only to determine whether the motion court's findings and conclusions are clearly erroneous. Rule 29.15(k); Mallow v. State, 439 S.W.3d 764, 768 (Mo.banc 2014). Findings and conclusions are clearly erroneous only if, after reviewing the entire record, we are left with the definite and firm impression that a mistake has been made. Id. The movant bears the burden of demonstrating by a preponderance of the evidence that the motion court clearly erred in its ruling. Roberts v. State, 276 S.W.3d 833, 835 (Mo.banc 2009). We presume that the motion court's findings are correct. Mallow, 439 S.W.3d at 768.

         We apply the two-part Strickland test to ineffective-assistance-of-counsel claims for post-conviction relief under Rule 29.15. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Johnson v. State, 406 S.W.3d 892, 898 (Mo.banc 2013). To be entitled to relief, the movant must show by a preponderance of the evidence that (1) his counsel failed to exercise the level of skill and diligence that reasonably competent counsel would in a similar situation, and (2) that he was prejudiced by that failure. Id. at 898-99. We presume that counsel's decisions were part of a reasonable trial strategy, and to overcome this presumption the movant must identify specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professionally competent assistance and rendered counsel's trial strategy unreasonable. Id. at 899. To show prejudice, the movant must demonstrate that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id.

         Discussion

         Throughout Cusumano's trial, counsel pursued a defense strategy founded on the unreasonable and incorrect notion that the prosecution of Cusumano on the three class A felony charges was time-barred. Counsel began pursuing this erroneous strategy before trial, by filing a motion to dismiss the charges on a statute-of-limitations defense that simply did not exist.[3]Because Missouri law unambiguously provided that class A felonies carried no statute of limitations and could be charged at any time, see § 556.036[4], the trial court denied Cusumano's motion to dismiss. But that did not stop counsel from unreasonably continuing to pursue a strategy based on the unfounded belief that the class A felony charges were time-barred. As matters proceeded, counsel's doomed strategy simply became more complicated, and more absurd.

         To wit, counsel concluded that to establish that Cusumano's prosecution on the class A felony charges was time-barred, he needed to offer jury instructions on the lesser included, unclassified felonies of forcible rape and forcible sodomy. After counsel did so and the jury convicted Cusumano only of the lesser included offenses, counsel renewed Cusumano's already-denied motion to dismiss, arguing that the court had been retroactively deprived of its jurisdiction over prosecution of Cusumano on the class A felony charges because his convictions of the lesser included offenses were time-barred and, most critically, demonstrated that there was no evidence of the aggravating facts required to prove the class A felony versions of the crimes. As counsel put it, the fact that Cusumano had been convicted only of lesser included offenses constituted an "affirmative defense" to his prosecution on the class A felony charges.

         However, not only was counsel's convoluted argument not supported by Missouri law, but counsel's submission of instructions on the lesser included felonies of standard forcible rape and forcible sodomy placed Cusumano at an added and profound disadvantage: by submitting those instructions, counsel waived Cusumano's statute-of-limitations objections to the time-barred offenses of which Cusumano was ultimately convicted. See State v. Leisure, 796 S.W.2d 875, 877-78 (Mo.banc 1990) (noting that the Missouri Supreme Court "has long held that a defendant cannot complain of an instruction given at his request" (citing cases from State v. Decker, 33 S.W.2d 958, 962 (Mo.banc 1930), to State v. Adams, 497 S.W.3d 147, 154 (Mo.banc 1973)); see also Longhibler v. State, 832 S.W.2d 908, 911 (Mo.banc 1992) (holding that the statute of limitations is non-jurisdictional and can be waived); Leisure, 796 S.W.2d at 879 (holding that defendants must not be allowed "the option of gambling on the jury's sense of mitigation or mercy by submitting a [lesser included offense] instruction and in so doing sub silentio waive the bar of limitation and then having received such merciful consideration at the hands of his peers, reverse his field, assert the bar and ask . . . to [be] free[d] . . . from all accountability"). As a result, Cusumano's convictions of the lesser included felonies were no longer time-barred, and because Cusumano never succeeded in showing that there was insufficient evidence of aggravating facts to charge him with the class A felonies of forcible rape and forcible sodomy, the trial court certainly did not lack jurisdiction in this case. It simply does not matter that Cusumano was not ultimately convicted of the class A felony charges.

         At the motion hearing in this case, counsel explained that he relied on the invalid argument outlined above because here, under Longhibler and other applicable case law, he found himself in a bind: regardless of whether he submitted lesser included offense instructions at trial, he would be forced to waive the "affirmative defense" he believed Cusumano possessed, based on the statute of limitations in § 556.036, against the three class A felony charges in this case. He testified: "So there, you are in a position where the statute of limitations can be waived by asking for a lesser-included, but it can also be waived if you don't submit your affirmative defense.[5] So as a trial attorney, what do you do?" Clearly, counsel failed to recognize that because § 556.036 established that a defendant may be charged with class A felonies at any time, the statute of limitations was no defense to the class A felony charges here and was not a valid reason to waive Cusumano's right to be free from actually time-barred prosecution for the lesser included, unclassified felonies. Nevertheless, the motion court in this case concluded that it could not find that trial counsel had made an unreasonable strategy decision in submitting lesser included offense instructions on the unclassified felonies of forcible rape and forcible sodomy. Because there was "a real possibility" that the jury would find Cusumano guilty of aggravated forcible rape and forcible sodomy, and because the unclassified, lesser included felonies for which counsel submitted instructions carried a lower minimum sentence, [6] the motion court found-as the State argues- that it was "not an unreasonable strategy" for counsel to submit the instructions in order to give the jury the opportunity to render compromise verdicts with respect to the class A felony charges in this case. The motion court also declined to find that trial counsel's strategy was unreasonable because, as counsel testified at the motion hearing, "had trial counsel not offered the lesser-included offenses, and had the jury then convicted [Cusumano] of the class A felonies, then there would [have been] no possibility of raising any defense of statute of limitations, as the class A felonies have no statute of limitations."

         However, the record in this case plainly refutes the motion court's findings in this regard. First, as already stated, it was not reasonable or required for counsel to submit instructions on the unclassified felonies in order to preserve Cusumano's statute-of-limitations defense to the class A felony charges, since under Missouri law he did not have any such defense. Second, trial counsel was asked multiple times at the motion hearing whether there was any reason to submit the lesser included offense instructions other than to re-assert Cusumano's statute-of-limitations objections-i.e., to raise his so-called "affirmative defense"-to the charges in this case and he responded, "No. Like I said, the only reason to offer them was in support of our motion." (emphasis added). Counsel elaborated that "it wasn't [Cusumano's or counsel's] intent to file a lesser-included, "[7] and that "[t]he reason [they] filed it is because in order to claim that the statute of limitations had run and that the court ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.