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Simmons v. State

Court of Appeals of Missouri, Western District, First Division

October 25, 2016

RODNEY SIMMONS, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of Jackson County, Missouri The Honorable David M. Byrn, Judge

          Before: Thomas H. Newton, Presiding Judge, Cynthia L. Martin, Judge and Edward R. Ardini, Jr., Judge

          Cynthia L. Martin, Judge

         Rodney Simmons ("Simmons") appeals from the denial of his Rule 24.035 motion following an evidentiary hearing. Simmons argues that his claim of ineffective assistance of counsel was not refuted by the record as found by the motion court; that he suffered prejudice contrary to the motion court's finding; and that the trial court's deference to trial counsel's belief that Simmons should plead guilty deprived Simmons of his personal right to make the decision to plead guilty. Finding no error, we affirm.

         Factual and Procedural History

         Simmons pled guilty on May 28, 2013 pursuant to a plea agreement with the State. In exchange for Simmons's plea to murder in the second degree and armed criminal action, the State agreed to reduce Simmons's murder charge from first degree to second degree; to drop additional charges for the class C felony of possession of a controlled substance and the class A felony of trafficking in the second degree; to cap Simmons's sentences at 25 years; and to not refer Simmons to federal authorities. The court accepted Simmons's guilty pleas and sentenced him to 25 years on each count, to run concurrently. The guilty plea record established a factual basis for Simmons's pleas, as the State alleged it would prove at trial that on December 27, 2011, Simmons shot a man with a gun.

         On August 23, 2013, Simmons filed a timely Rule 24.035 motion seeking to set aside his guilty pleas and sentences. Postconviction counsel was appointed, but failed to timely file an amended motion. Postconviction counsel sought and secured reappointment of the public defender as Simmons's counsel based on abandonment. Postconviction counsel then timely filed an amended Rule 24.035 motion ("Motion"). The Motion alleged that plea counsel was ineffective because he failed to investigate Simmons's competency by having a mental evaluation done before Simmons pled guilty, and because he failed to investigate, advise Simmons about, and prepare a diminished capacity defense. During an evidentiary hearing on Simmons's motion, six witnesses testified, including Simmons, plea counsel, a psychologist, and Simmons's grandmother, wife, and mother. The essence of Simmons's claim during the evidentiary hearing was that plea counsel did not advise him about, or prepare, an "imperfect" diminished capacity defense which, according to Simmons, would have permitted the submission of a verdict director for involuntary manslaughter to the jury. Simmons argued that had he known about the possibility of submitting his case to the jury on this basis he would not have pled guilty, and he would have insisted on going to trial.

         The motion court denied both of Simmons's claims of ineffective assistance of counsel. Simmons has not appealed the denial of his claim that plea counsel failed to have Simmons's competency evaluated before Simmons pled guilty.[1] Simmons appeals only the denial of his second claim of ineffective assistance of counsel. With respect to that claim, the motion court concluded that the claim was "refuted by the record" because plea counsel and the court addressed the diminished capacity defense with Simmons during the guilty plea hearing, and Simmons acknowledged he understood and was waiving all defenses. The motion court also found that in any event, Simmons suffered no prejudice because he had been charged with first degree murder, and a successfully advanced diminished capacity defense would have reduced his conviction to second degree murder-the offense for which he pled guilty. Finally, the motion court found that even if Simmons could have used a claim of diminished capacity to require submission of an involuntary manslaughter verdict director, plea counsel credibly testified that to do so, Simmons would have been required to testify, which would have exposed the jury to evidence of Simmons's "long criminal history" to Simmons's significant detriment.

         Simmons timely filed this appeal.

         Standard of Review

         Our review of the motion court's denial of Simmons's Motion "is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous." Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009) (citing Rule 24.035(k)). "The motion court's findings and conclusions are clearly erroneous only if, after review of the record, the appellate court is left with the definite and firm impression that a mistake has been made." Id. (citing Soto v. State, 226 S.W.3d 164, 166 (Mo. banc 2007)). "'We presume that the motion court's findings and conclusions are correct, and defer to the motion court's determinations of credibility.'" Porter v. State, 480 S.W.3d 455, 457 (Mo. App. W.D. 2016) (quoting Nichols v. State, 409 S.W.3d 566, 569 (Mo. App. E.D. 2013)).

         Analysis

         Simmons appeals the motion court's denial of his claim that plea counsel was ineffective by failing to investigate, advise Simmons about, and prepare a diminished capacity defense. In his first point, Simmons argues that it was error for the motion court to find that his claim of ineffective assistance was refuted by the record because his on-the-record waiver of the defense of diminished capacity was ambiguous. Simmons's second point argues that it was error to conclude that he suffered no prejudice because the motion court mistakenly believed that a diminished capacity defense could at best yield a conviction of second degree murder. Simmons's third point alleges that the motion court erroneously deprived him of the personal right to choose whether to plead guilty by relying on plea counsel's opinion that it was in Simmons's best interests to plead guilty because a diminished capacity defense aimed at involuntary manslaughter would have required Simmons to testify, permitting the admission of detrimental evidence.

         "In order to prevail on a claim of ineffective assistance of counsel, a movant must show by a preponderance of the evidence (1) that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances, and (2) that he was prejudiced thereby." Whitehead v. State, 481 S.W.3d 116, 122 (Mo. App. E.D. 2016) (citing Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987) itself citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). Both the performance and prejudice prongs must be established. Sanders, 738 S.W.2d at 857. Thus, a movant's failure to sustain his burden as to one of the required prongs negates any need to address the other. Id.

         With respect to the performance prong, following a guilty plea, "the effectiveness of counsel is immaterial except to the extent it impinges on the voluntariness and knowledge with which a [movant] pled guilty." Cain v. State, 859 S.W.2d 715, 717 (Mo. App. E.D. 1993) (citing Hagan v. State, 836 S.W.2d 459, 463 (Mo. banc 1992)). The dereliction of plea counsel's duty must "materially affect[] [movant's] substantial rights" and render the guilty plea an unintelligent and unknowing act. Whitehead, 481 S.W.3d at 123 (quoting Evans v. State, 921 S.W.2d 162, 164 (Mo. App. W.D. 1996)). To establish the prejudice prong following a guilty plea, a movant must show that "but for counsel's ineffective assistance, he would have not pleaded guilty and instead would have insisted upon going to trial." Id. (citing May v. State, 309 S.W.3d 303, 306 (Mo. App. E.D. 2010)).

         In his first point on appeal, Simmons complains that the motion court erroneously denied his claim that plea counsel was ineffective for failing to investigate, advise Simmons about, or prepare a diminished capacity defense because the claim was "refuted by the record." The motion court found that plea counsel and the court addressed the diminished capacity defense with Simmons during the guilty plea hearing, and that Simmons acknowledged that he understood, ...


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