Court of Appeals of Missouri, Western District, First Division
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
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.
and Procedural History
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.
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
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. 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.
timely filed this appeal.
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)).
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.
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
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)).
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, ...