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Kennicutt v. State

Court of Appeals of Missouri, Western District, Third Division

September 12, 2017

RICKEY KENNICUTT, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of Lafayette County, Missouri Honorable Dennis Allen Rolf, Judge

          Before Three: Alok Ahuja, P.J., Thomas H. Newton, and Cynthia L. Martin, JJ.

          Thomas H. Newton, Judge

         Mr. Rickey Kennicutt appeals the motion court's judgment denying the Rule 24.035 amended motion for post-conviction relief without an evidentiary hearing in the Circuit Court of Lafayette County, Missouri. Mr. Kennicutt was sentenced to ten years in prison for first-degree child molestation[1] after he plead guilty on September 22, 2014. We affirm.

         During the guilty-plea hearing, Mr. Kennicutt admitted that he "knowingly subjected [victim], who was then less than 14 years of age, to sexual contact by touching her breast." At the November 3, 2014 sentencing hearing plea counsel made an oral motion to withdraw Mr. Kennicutt's guilty plea. Plea counsel told the court that having reviewed Mr. Kennicutt's sentencing assessment report (SAR), he was concerned that Mr. Kennicutt still maintained his innocence[2] and, therefore, he felt ethically bound to attempt to withdraw the guilty plea. Plea counsel told the court that he wanted Mr. Kennicutt to testify. After Mr. Kennicutt was sworn in, Judge Dennis A. Rolf warned him that if he testified contrary to his testimony in September, he was potentially subject to perjury charges. Plea counsel asked the court for a brief moment to discuss this issue with Mr. Kennicutt. Mr. Kennicutt alleges that plea counsel advised him not to testify because of the potential for perjury charges. Plea counsel informed the court that Mr. Kennicutt would not be testifying and that plea counsel felt the SAR report provided enough support for the withdrawal. Judge Rolf ultimately denied the motion to withdraw the guilty plea, noting:

[C]onsidering the statements made by the Defendant under oath on September 22nd, 2014, as opposed to the statements that are contained in the SAR which are, if nothing else, hearsay, but even if not objected to for hearsay definitely were not made under oath, the Court is going to choose to believe the statements that he made on September 22, 2014, and the Court is denying the Defendant's counsel's motion to set aside the guilty plea.

         Mr. Kennicutt filed a Form 40 on January 23, 2015 and the motion court appointed counsel. Appointed counsel filed an amended motion on June 16, 2015. The amended motion raised two claims: (1) insufficient factual basis for first-degree child molestation; and (2) ineffective assistance of counsel based on plea counsel's mistaken advice regarding the perjury statute. On June 9, 2016, the motion court denied Mr. Kennicutt's amended motion without an evidentiary hearing. Mr. Kennicutt appeals.

         We review a motion court's decision in a Rule 24.035 proceeding to determine if the findings of fact and conclusions of law are clearly erroneous. Dodson v. State, 364 S.W.3d 773, 776 (Mo. App. W.D. 2012). This Court will reverse only if, after review, we are left with a definite and firm impression that a mistake has been made. Id. Mr. Kennicutt has the burden to show "by a preponderance of the evidence that the motion court clearly erred in its ruling." Id.

         Mr. Kennicutt claims that the motion court erred in denying his amended motion without an evidentiary hearing. The motion court is not required to grant an evidentiary hearing unless "(1) the motion… allege[s] facts, not conclusions, warranting relief; (2) the facts alleged must not be refuted by the files and records of the case; and (3) the allegations must have resulted in prejudice." Wilkes v. State, 82 S.W.3d 925, 928 (Mo. banc 2002).

         Mr. Kennicutt first alleged in the amended motion that a factual basis for the charge of first-degree child molestation developed during the guilty plea hearing was insufficient. Specifically, Mr. Kennicutt alleged that although he admitted to knowingly subjecting a victim younger than age 14 to sexual contact by touching her breasts, he did not admit that he did so for the purpose of arousing or gratifying a sexual desire, the definition of "sexual contact." The essence of Mr. Kennicutt's argument was that admitting to "sexual contact" was insufficient as a matter of law to constitute an admission of the specific intent required to commit the crime of first-degree child molestation.

         On appeal, Mr. Kennicutt has elected not to pursue this claim in light of Wray v. State, 474 S.W.3d 230 (Mo. App. W.D. 2015). In Wray, this Court held that the term "sexual contact" provided a sufficient factual basis for the crime of child molestation, because the terms were such that a layman would understand that the contact alleged was for the purpose of arousal or gratification of sexual desires. Id. at 235. Thus, the amended motion's first claim has been foreclosed as a matter of law.

         Still, Mr. Kennicutt's first claim remains inextricably interwoven with his second claim. Mr. Kennicutt's second claim alleges that but for plea counsel's mistaken understanding of the perjury statute, he would have testified in support of the motion to withdraw his guilty plea. Mr. Kennicutt's amended motion alleges that he would testify at an evidentiary hearing that:

[H]ad he been called as a witness in support of the motion to withdraw his guilty plea, he would have testified he never touched [victim's] breast with the purpose of arousing or gratifying sexual desire of any person. Given the deficiency in the factual basis discussed in [connection with the first claim], supra, this would not have been directly contrary to his testimony at the guilty plea, because the factual basis of the guilty plea never touched on the specific intent element of first-degree child molestation. Further, Mr. Kennicutt's testimony in support of the motion to withdraw his guilty plea would have fit under the paragraph four defense [to perjury] of correcting his testimony in the course of the official proceeding.

         The amended motion thus alleges that counsel's misunderstanding of the perjury statute resulted in Mr. Kennicutt not testifying in support of the motion to withdraw the guilty plea.

         To be entitled to an evidentiary hearing, we must first determine whether these facts could warrant relief. Mr. Kennicutt alleges that plea counsel misunderstood paragraph four of the perjury statute, resulting in plea counsel advising Mr. Kennicutt not to testify in support of the motion to withdraw the guilty plea. Mr. Kennicutt thus alleges that had he testified in support of the motion to withdraw as alleged in the amended motion, he would not have committed perjury, and plea counsel was ineffective for advising him to the contrary. We do not agree.

         The perjury statute, § 575.040.1 RSMo (2000), provides as follows:

A person commits the crime of perjury if, with the purpose to deceive, he knowingly testifies falsely to any material fact upon oath or affirmation legally administered, in any official proceeding before any court, public body, notary public or other officer authorized to administer oaths.

         The retraction clause, § 575.040.4 RSMo (2000), reads as follows:

It is a defense to a prosecution under subsection 1 of this section that the actor retracted the false statement in the course of the official proceeding in which it was made provided he did so before the falsity of the statement was exposed. Statements made in separate hearings at separate stages of the same proceeding, including but not limited to statements made before a grand jury, at a preliminary hearing, at a deposition or at previous trial, are made in the course of the same proceeding.

(emphasis added). The record at the sentencing hearing establishes that the basis for Mr. Kennicutt's "retraction" of his admission of guilt was information contained in the SAR--information that had already been exposed before Mr. Kennicutt desired to testify at the sentencing hearing. Counsel's recommendation that Mr. Kennicutt not testify did not fall below an objective standard of reasonableness, the first prong required to establish a claim for ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). Plea counsel could reasonably have been concerned that paragraph 4 of the perjury statute, the retraction defense, would not have protected his client.

         Even if that were not the case, Mr. Kennicutt would be required to show prejudice to establish entitlement to an evidentiary hearing. To show prejudice, Mr. Kennicutt must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. Mr. Kennicutt has not sustained this burden.

         Mr. Kennicutt alleges that had plea counsel called him to testify in connection with the motion to withdraw, he would have testified that "he never touched [victim's] breast with the purpose of arousing or gratifying sexual desire." In effect, Mr. Kennicutt's claim is that although he admitted to "sexual contact" during the guilty plea hearing, he did not admit to the specific intent required to commit first-degree child molestation. As we have ...


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