Court of Appeals of Missouri, Western District, First Division
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.
D. WITT, JUDGE.
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
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
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.
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 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.
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.
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
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)).
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