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Lowery v. State

Court of Appeals of Missouri, Southern District, Second Division

May 12, 2017

DAVID ALAN LOWERY, Movant-Appellant,
v.
STATE OF MISSOURI, Respondent-Respondent.

         APPEAL FROM THE CIRCUIT COURT OF HICKORY COUNTY Honorable James A. Hackett, Judge

          OPINION

          WILLIAM W. FRANCIS, JR., J.

         David Alan Lowery ("Lowery"), appeals from the judgment of the motion court denying his Rule 24.035[1] motion to set aside his convictions, without an evidentiary hearing, for forcible rape, and first-degree assault. Because the motion court's decision to deny the post-conviction motion was not clearly erroneous, we affirm.

          Facts and Procedural History

         We set forth only those facts necessary to complete our review. In reviewing a denial of a motion for post-conviction relief without an evidentiary hearing, our review is in accord with the principle that the facts in movant's motion are presumed true unless refuted by the record. Long v. State, 441 S.W.3d 154, 156-57 (Mo.App. E.D. 2014).

         On August 27, 2013, Lowery was charged by felony information in Webster County[2] with the unclassified felony of forcible rape (Count 1), pursuant to section 566.030;[3] the class C felony of felonious restraint (Count 2), pursuant to section 565.120; the class A felony of first-degree assault (Count 3), pursuant to section 565.050; the class A felony of first-degree assault (Count 4), pursuant to section 565.050; and the unclassified felony of armed criminal action (Count 5), pursuant to section 571.015.

         On August 13, 2014, Lowery appeared with counsel at a plea hearing and informed the court that Lowery would be withdrawing his prior pleas of not guilty to Counts 1 and 4, in exchange for the dismissal of Counts 2, 3, and 5. Counts 1 and 4 would also carry a cap of 20 years, with concurrent sentences.

         Lowery was informed of the range of punishment for the offenses to which he was pleading guilty, and that the court could order those sentences be served either consecutively or concurrently. Lowery stated he understood the range of punishment and the charges against him. The State explained that the plea agreement was in exchange for Lowery's guilty pleas to Count 1 of forcible rape, and Count 4 of assault in the first degree; a recommendation for a cap of 20 years on each count, to be served concurrently; and a dismissal of Counts 2, 3, and 5. Lowery confirmed that was his understanding of the plea agreement and denied he had been promised anything else in exchange for his guilty pleas.

         The State outlined the factual basis for the plea, which included: (1) the victim's anticipated testimony that Lowery participated in assaulting her with metal pipes, a broomstick, and branded her on her buttocks with a fire-heated clothes hanger; (2) that Lowery punched her in the face knocking her unconscious; (3) that Lowery raped her as she was being held down by co-participants, while screaming "No, " and telling him to stop; (4) Lowery's admissions to an investigator that he participated in branding the victim, had sexual intercourse with her while telling him to stop, and that another individual took the victim to the shower and washed her off; (5) the three co-participants' corroborative testimony; (6) two witnesses, including a doctor, who observed victim's injuries, as well as photographs of the injuries; and (7) physical evidence in the form of the clothes hanger believed to have been used to brand the victim.

         Lowery confirmed he had sufficient time to discuss the case fully with defense counsel, including the strengths and weakness of the State's case; that he understood what the State's evidence would be if the case went to trial; and that the State's recitation accurately described the events that took place.

         Lowery also confirmed he understood his right to persist in his plea of not guilty, understood all of his constitutional rights attendant to a jury trial, and that he was waiving those rights by pleading guilty. Lowery also stated his counsel had investigated the case to his satisfaction, she had done all the things he asked her to do, and he was satisfied with her services. Lowery further denied being threatened, intimidated, or mistreated into pleading guilty against his will, but rather confirmed that he was pleading guilty because he was guilty, was doing so of his own free will, and that it was his decision alone to plead guilty regardless of what advice or recommendations defense counsel had made. Lowery also submitted a "plea form" into evidence that contained many of the same questions and answers covered during the plea hearing, as further evidence that his plea was made voluntarily and intelligently. The court accepted Lowery's pleas of guilty as voluntarily and intelligently made, and the State dismissed Counts 2, 3, and 5, pursuant to the plea agreement.

         On October 8, 2014, a sentencing hearing was held. The State outlined the facts of the case in more detail, including the fact that the rape kit came back negative because victim had been washed off after the rape, and several days had passed between the rape and the rape-kit analysis. The State then argued for a sentence of 20 years in the Department of Corrections, consistent with the plea agreement. Defense counsel called six witnesses to testify or make statements on Lowery's behalf.

         At no time during the sentencing hearing did Lowery request that his guilty plea be set aside, although the court asked whether he knew of any reason sentence and judgment should not be pronounced. Lowery was sentenced to 20 years in the Department of Corrections on each count, with time served, to be served concurrently, consistent with the plea agreement.

         Following the court's sentencing announcement, the court asked Lowery several questions regarding his satisfaction with defense counsel's assistance. At that time, Lowery reiterated that his counsel had investigated the case to his satisfaction, that she talked to witnesses he asked her to talk to, and that she did all of the things he asked her to do. Further, he denied that counsel did anything that he did not want her to do. As a result, the court found no probable cause to believe Lowery received ineffective assistance of counsel.

         On April 7, 2015, Lowery timely filed a pro se Rule 24.035 motion for post-conviction relief. In his motion, Lowery asserted, in part, that: (1) he asked "the day before not to take the plea bargain and was told I wouldn't get any better"; (2) that although the "rape kit . . . came back negative[, ] . . . my PD told me it didn't matter"; and (3) defense counsel "didn't investigate the case as well as she should of" because "[p]eople that I gave to her as witnesses to different things[, ] . . . [s]he didn't contact any of them other than my parents."

         On April 29, 2015, a public defender entered his appearance on behalf of Lowery, and filed a "Statement in Lieu of an Amended Motion" on August 20, 2015. At a case management conference on July 12, 2016, Lowery's post-conviction attorney requested the motion court take the post-conviction motion under submission on the pleadings, without an evidentiary hearing. The motion court did so and on August 10, 2016, entered its "Findings of Fact, Conclusions of Law, and Judgment" denying Lowery's Rule 24.035 motion. This appeal followed.

         In one point on appeal, Lowery asserts the trial court erred in denying his Rule 24.035 motion, without an evidentiary hearing, [4] because Lowery pleaded factual allegations which, if proved, would warrant relief and which are not refuted by the record, "since counsel failed to investigate his case and told [Lowery] he had no choice but to plead guilty."

         The issue for our determination is whether the motion court clearly erred in denying Lowery's Rule 24.035 motion, without an evidentiary hearing, based on the allegations in Lowery's motion regarding defense counsel's comments as to the plea deal, and counsel's alleged insufficient investigation.

         Standard of Review

We review the denial of a Rule 24.035 motion for post-conviction relief to determine whether the motion court's findings of facts and conclusions of law are clearly erroneous. A motion court's findings are presumed correct and we will overturn the ruling only if we are left ...

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