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Coon v. State

Court of Appeals of Missouri, Western District, First Division

November 29, 2016

DERIC L. COON, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of Lafayette County, Missouri The Honorable Dennis A. Rolf, Judge

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

          Cynthia L. Martin, Judge

         Appellant Deric L. Coon ("Coon") appeals the motion court's denial of his Rule 24.035[1] motion for post-conviction relief which alleged ineffective assistance of counsel in failing to file a motion to suppress Coon's confession and in failing to advise Coon that his sentences would be imposed to run consecutively. Finding no error, we affirm.

         Facts and Procedural History

         On November 16, 2013, Coon was arrested in connection with the burglary of a storage unit in Odessa, Missouri. After identifying Coon and a friend as suspects, Odessa Police located the two at a local hotel. Coon was questioned and taken into custody after making potentially incriminating statements. At the time of his arrest, Coon was in possession of methamphetamines. Coon was eight months into a five-year term of probation, with a suspended imposition of sentence, following a guilty plea he entered on March 8, 2013, for attempted second degree burglary.

         When Coon and the officers arrived at the station, Coon signed a Miranda[2] form, and then described the events and his role in the theft from the storage unit. Coon also confessed to possession of methamphetamines. An officer prepared a written account of Coon's statement, and Coon signed the statement. Coon does not contest the accuracy of his written statement. Additionally, four other people gave statements implicating Coon.

         Pursuant to negotiations with the State, Coon pled guilty on March 3, 2014, to a Class C felony for possession of a controlled substance and a Class C felony for stealing, in exchange for the State's agreement to drop two related charges. The court sentenced Coon to seven years on both counts, to be served concurrently. The court also revoked Coon's suspended imposition of sentence in connection with Coon's March 2013 conviction, given Coon's violation of the terms of his probation, and sentenced him to seven years in the department of corrections to be served consecutively to the concurrent seven-year sentences. Execution of all of Coon's sentences was suspended, and Coon was again placed on probation for five years. On August 6, 2014, Coon's probation was revoked after Coon tested positive for marijuana, and Coon's suspended sentences were executed. Coon was committed to the jurisdiction of the Department of Corrections immediately thereafter.

         Coon filed a pro se Rule 24.035 motion for post-conviction relief on November 10, 2014. Appointed counsel filed an amended Motion to Vacate, Set Aside, or Correct the Judgment or Sentence on April 22, 2015 ("Amended Motion"). The motion court denied Coon's Amended Motion without an evidentiary hearing[3] and issued its findings of fact, conclusions of law and judgment.[4]

         Coon filed this timely appeal.

         Standard of Review

         "Appellate review of the trial court's action on [a] motion filed under [] Rule 24.035 shall be limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous." Rule 24.035(k); Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009); Ross v. State, 335 S.W.3d 479, 480 (Mo. banc 2011); Bello v. State, 464 S.W.3d 284, 288-89 (Mo. App. W.D. 2015). The determination of the motion court is clearly erroneous only if "the appellate court is left with the definite and firm impression that a mistake has been made." Roberts, 276 S.W.3d at 835. The burden of showing that the motion court clearly erred is on the movant. Id.

         Analysis

         Though Coon's Amended Motion raised several claims, Coon's appeal addresses the denial of only two of those claims. Coon argues that the motion court erred in denying his Amended Motion because plea counsel was ineffective by failing to file a motion to suppress his confession, as Coon now claims that his confession was not knowing and voluntary because he was high on methamphetamines and had gone without sleep for three to four days at the time he waived his Miranda rights and gave his statement to the police. Coon also argues that it was error to deny his Amended Motion because plea counsel was ineffective by failing to advise him, before he pled guilty, that the seven-year suspended sentence for his earlier probation violation would be ordered to run consecutively to the concurrent seven-year sentences imposed for the charges arising out of his November 2013 arrest.

         To prevail on an ineffective assistance of counsel claim, Coon must "show[] by a preponderance of the evidence that (1) his counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances and (2) his counsel's deficient performance prejudiced him." Smith v. State, 370 S.W.3d 883, 885-86 (Mo. banc 2012); see Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). Coon must prove both prongs of this test, and if he fails to prove one prong, the appellate court need not consider the other. Bello, 464 S.W.3d at 289. Furthermore, by entering a plea of guilty, Coon expressly waived the right to contest all other errors "except to the extent that [plea counsel's] conduct affected the voluntariness and knowledge with which the plea was made." Worthington v. State, 166 S.W.3d 566, 573 (Mo. banc 2005) (emphasis added); State v. Roll, 942 S.W.2d 370, 375 (Mo. banc 1997).

         For the following reasons, we hold that the motion court did not clearly err in denying Coon's Amended Motion.

         Plea Counsel's Failure to File a Motion to Suppress ...


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