Court of Appeals of Missouri, Western District, Third Division
from the Circuit Court of Lafayette County, Missouri
Honorable Dennis Allen Rolf, Judge
Three: Alok Ahuja, P.J., Thomas H. Newton, and Cynthia L.
H. Newton, Judge
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 after he plead guilty on September 22,
2014. We affirm.
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 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.
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.
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.
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).
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
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
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.
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.
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.
perjury statute, § 575.040.1 RSMo (2000), provides as
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.
retraction clause, § 575.040.4 RSMo (2000), reads as
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.
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.
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