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Barcelona v. State

Court of Appeals of Missouri, Western District, First Division

July 25, 2017

GIOVANNI BARCELONA, Appellant,
v.
STATE OF MISSOURI, Respondent.

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

          Before: Gary D. Witt, Presiding Judge, Alok Ahuja, Judge and Edward R. Ardini, Jr., Judge.

          GARY D. WITT, JUDGE.

         Giovanni Barcelona ("Barcelona") appeals the motion court's denial, without an evidentiary hearing, of his Rule 29.15 motion for post-conviction relief ("Amended Motion") by the Circuit Court of Lafayette County. Barcelona was convicted after a jury trial of class D felony of unlawful use of drug paraphernalia, class D felony of failure to appear, and misdemeanor offenses of operating a vehicle without a valid license and making a false police report. On direct appeal, this Court reversed in part, finding that the evidence was insufficient to support a conviction for felony possession of drug paraphernalia and that conviction and sentence were reversed. State v. Barcelona, 463 S.W.3d 442 (Mo. App. W.D. 2015). The court affirmed the remaining convictions and sentences. Id. In his Amended Motion, as relevant to this appeal, Barcelona claimed his trial counsel was ineffective for failing to investigate information pertaining to an ankle injury that could have established a defense to the failure to appear charge. The two misdemeanor convictions and sentences are not a subject of this appeal. On appeal, Barcelona argues the motion court erred in denying his Amended Motion without granting an evidentiary hearing. We affirm.

         Factual Background

         Barcelona was convicted following a jury trial of the class D felony of unlawful use of drug paraphernalia, class D felony of failure to appear, and misdemeanor offenses of operating a vehicle without a valid license and making a false police report. These charges arise from Deputies Dean Koch ("Deputy Koch") and Darren McFatrich ("Deputy McFatrich) being dispatched to a home in Odessa, Missouri in response to a call from a homeowner. Barcelona, who was being held by the homeowner at gunpoint, identified himself to the deputies as Jerry Hill and claimed that he ended up on the homeowner's property because he had gotten lost on his way to Topeka, Kansas after dropping a female off in Kansas City, Missouri. The deputies pointed out that he was traveling the wrong way from Kansas City to end up in Topeka. The deputies led Barcelona to I-70 and directed him toward Topeka, Kansas.

         Shortly thereafter Barcelona exited I-70 onto north Highway D in Bates City, Missouri for no apparent reason heading in a direction where there were no amenities or stores. Deputy Koch initiated a traffic stop and, with Barcelona's permission, searched the vehicle. Deputy Koch found a backpack in the backseat which contained syringes and a spoon with residue and a cotton ball rolled up in the center, as well as paperwork with Barcelona's true identity.

         Barcelona posted bond on April 17, 2012 and a hearing was set for his motion to suppress ("Motion Hearing") on June 18, 2012. On June 18, 2012, Barcelona failed to appear at the Motion Hearing. Barcelona's counsel[1] informed the court that Barcelona had broken his ankle, developed an infection, and was in the hospital, but acknowledged that she had not verified the information. The court advised counsel that Barcelona had until noon on June 19, 2012, to appear before the court otherwise a warrant would be issued. Barcelona faxed hospital "Discharge Instructions" to the court, addressed to counsel, on June 18, 2012, at approximately 9:55 p.m. On June 19, 2012, Barcelona failed to appear and a warrant for his arrest was ordered. Barcelona again failed to appear on July 16, 2012, for the Motion Hearing. The warrant was served on September 20, 2012. Following a hearing his motion to suppress was denied and the matter proceeded to jury trial on all counts.

         On direct appeal, this Court reversed the conviction and sentence on the charge of unlawful use of drug paraphernalia and affirmed Barcelona's remaining convictions. State v. Barcelona, 463 S.W.3d 442 (Mo. App. W.D. 2015). On October 6, 2015, Barcelona filed a timely motion for post-conviction relief. The public defender's office was appointed to represent Barcelona and filed an Amended Motion. As relevant to this appeal, Barcelona claimed in his Amended Motion that trial counsel was ineffective for failing to investigate information pertaining to his ankle injury that could have established a defense to the failure to appear charge. On March 7, 2016, his Amended Motion was denied without an evidentiary hearing.

         Standard of Review

         This Court will affirm the judgment of the motion court unless its findings and conclusions are clearly erroneous. Rule 29.15(k). The motion court's judgment is clearly erroneous only if this Court is left with a definite and firm impression that a mistake has been made. The motion court's findings are presumed correct. Additionally, a movant bears the burden of proving the asserted "claims for relief by a preponderance of the evidence." Rule 29.15(f).

         Roberts v. State, 502 S.W.3d 734, 737 (Mo. App. W.D. 2016) (quoting Christian v. State, 455 S.W.3d 523, 525-26 (Mo. App. W.D. 2015)).

         Analysis

         In his sole point on appeal, Barcelona argues the motion court erred in denying his Amended Motion, without an evidentiary hearing, in that he pleaded facts, not conclusions, which are not ...


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