Court of Appeals of Missouri, Western District, First Division
DERIC L. COON, Appellant,
STATE OF MISSOURI, Respondent.
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
Deric L. Coon ("Coon") appeals the motion
court's denial of his Rule 24.035 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.
and Procedural History
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.
Coon and the officers arrived at the station, Coon signed a
Miranda 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.
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6, 2014, Coon's probation was revoked after Coon tested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.
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 and issued its findings of fact,
conclusions of law and judgment.
filed this timely appeal.
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.
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.
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).
following reasons, we hold that the motion court did not
clearly err in denying Coon's Amended Motion.
Counsel's Failure to File a Motion to Suppress ...