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Hutcherson v. Norman

United States District Court, W.D. Missouri, Central Division

October 10, 2017

JEFF NORMAN, Respondent.



         Petitioner Earl Hutcherson, an inmate at the Missouri Department of Corrections' Boonville Correctional Center, has filed a petition for writ of habeas corpus under 28 U.S.C. § 2254. Hutcherson pleaded guilty on June 24, 2013, in the Circuit Court of Boone County, Missouri to two counts of involuntary manslaughter and was sentenced to two concurrent terms of ten years' imprisonment. He filed a motion for post-conviction relief pursuant to Mo. Sup. Ct. R. 24.035, which was denied and upheld on appeal.

         Hutcherson raises two ground for relief: (1) that his plea counsel was ineffective for misleading him as to the amount of time he would have to serve before becoming eligible for parole, and affirmatively suggesting that he would only have to serve a small fraction of his sentence before becoming eligible; and (2) that his plea counsel was ineffective for failing to provide him pretrial motions and evidence, rendering his plea involuntary. The petition is denied.

         I. Background

         The pertinent facts were summarized as follows by the Missouri Court of Appeals in connection with Hutcherson's appeal of the order denying his Rule 24.035 motion:

While represented by retained counsel's partner Mr. Matthew Fry, Mr. Hutcherson pleaded guilty to two counts of the Class B felony of involuntary manslaughter in the first degree in June 2013. He had been charged with two counts of murder in the second degree. He admitted during the plea colloquy that he was under the influence of alcohol in July 2011 when driving on Interstate 70 near Columbia, Missouri, leaving his traffic lane, and striking and killing two individuals who were not passengers in his vehicle. The court sentenced him, in accordance with a plea agreement, to two concurrent terms of ten years' imprisonment. Mr. Hutcherson had two prior convictions for driving while intoxicated.
Mr. Hutcherson's post-conviction retained counsel filed a motion to vacate, set aside, or correct the judgment or sentence in December 2013. This motion claimed ineffective assistance of counsel and an involuntary plea. According to the motion, Mr. Hutcherson was denied the effective assistance of counsel because his retained counsel, Mr. Scott Rosenblum, was not present during the plea hearing and Mr. Fry did not fully explain to Mr. Hutcherson that by pleading guilty he was waiving a presentence investigation report and sentencing assessment report. He also claimed ineffective assistance because trial counsel, Mr. Rosenblum and Mr. Fry, did not fully investigate his case, including the admissibility and reliability of the evidence obtained from a blood-alcohol test. Mr. Hutcherson claimed that his plea was involuntary because he had taken prescription pain medication for a headache some thirty or forty-five minutes before the hearing and that this impaired his ability to concentrate on the proceedings.
The motion court permitted two extensions for counsel to file an amended motion, which was filed, in compliance with Rule 24.035 in April 2014. This motion added details to Mr. Hutcherson's claim that trial counsel did not fully investigate his case, including sobriety testing, the positions of the victims and their vehicles, whether a flat tire could have caused Mr. Hutcherson's vehicle to swerve, his phone records, and additional accident reconstruction analysis. Mr. Hutcherson also claimed that, because counsel failed to conduct such an investigation, counsel's advice to plead guilty was not reasonably effective assistance of counsel. Other alleged representational shortcomings included that … counsel failed to provide Mr. Hutcherson with copies of motions filed on his behalf, discovery received from the State, and the results of trial counsel's investigation. Mr. Hutcherson further claimed that his plea was involuntary because he did not understand the evidence against him and the evidence that could be presented at trial, and he had not been given the opportunity to review the discovery or pleadings his counsel had filed. Among other matters, he claims that he was unaware that the Department of Revenue certified officer on site was not certified when she tested him, hospital emergency room cameras were blocked and did not record sound when his blood was drawn, an independent laboratory questioned the accuracy of the blood alcohol test, and after the accident it appeared that his right rear tire was flat and a witness driving behind him said that Mr. Hutcherson veered as if a tire had blown out.

Doc. 10-4, pp. 2-5.

In the first point, Mr. Hutcherson argues that counsel was ineffective for failing to advise him about numerous aspects of the evidence and defense, including the circumstances under which his blood was tested, available evidence as to how the accident occurred, and motions filed and depositions taken in connection with the case. Regarding Mr. Hutcherson's claim that he did not have sufficient information on which to base his decision to plead guilty, the evidentiary hearing testimony shows, to the contrary, that he was actively engaged in his defense and plea counsel thoroughly investigated the circumstances giving rise to the charges. Mr. Hutcherson's plea counsel was not the first retained counsel on the case. Previously retained counsel had gone so far as to conduct discovery and engage the services of an accident reconstruction firm, which produced a report and concluded that Mr. Hutcherson's vehicle had veered off the road; a company representative even advised plea counsel that he should not be called as a witness, because counsel would not want “us on the stand in this case.” Still, plea counsel did not believe that the case was ready for trial on the basis of the work prior counsel had done, so they consulted with other experts, conducted depositions, and took steps to preserve his legal defenses, including filing a motion to suppress. Mr. Hutcherson's plea counsel advised him that he had a triable case, no recommendation would be made to him about whether he should accept the plea agreement that the State had offered, and counsel would fully support him whatever decision he made. Mr. Rosenblum also testified that “Mr. Hutcherson was an engaged client and was in the office frequently reviewing his case with me and with Mr. Fry, so if he didn't actually take a physical copy [of the motion to suppress], I'm sure he was aware of it.”
Mr. Fry testified that, while he was unsure whether Mr. Hutcherson was given a copy of the motion to suppress, “I do know that we went over the document and we discussed it, but I don't know if he physically read it all.” This motion to suppress sought to exclude the results of blood alcohol tests taken at the hospital about two hours after the accident, which occurred at 7:58 p.m. It was based on a claim of illegal detention and Mr. Hutcherson's repeated refusals, based on counsel's advice, to undergo sobriety testing, and included information about the lack of audio when Mr. Hutcherson allegedly consented to have his blood drawn. Mr. Hutcherson's plea counsel also testified that he consulted with three different experts regarding the admissibility of the blood-test evidence, but ultimately did not believe that they would help the defense. No hearing was ultimately sought on the motion because the State said there would be no further plea offers if a suppression hearing were held. Plea counsel further testified that during the firm's representation of Mr. Hutcherson, the attorneys met with him or spoke with him on the phone frequently, went over all of the discovery the State produced, as well as the depositions the firm had conducted and all of the information received from various experts. They considered with Mr. Hutcherson the pros and cons of going to trial and the pros and cons of accepting a plea. Counsel agreed that their “consultations with Mr. Hutcherson probably ranked some of the highest that [they] have had with clients over the years with this type of charges [sic].” Plea counsel stated that on at least two occasions he left depositions at the front desk for Mr. Hutcherson to pick up and review.

Id., pp. 6-8.

Mr. Hutcherson testified that counsel did not provide all of the documents to him, but the [motion] court was free not to believe his testimony. And in fact, as to the efforts that trial counsel undertook to work the case up for trial, the court specifically found Mr. Fry credible. The motion court also found Mr. Hutcherson not credible as to whether he had been kept informed and had seen all of the documents and evidence in the case. While Mr. Hutcherson claims that uncontradicted testimony (his own) proves that he did not receive all of the information and documents needed to make an informed decision to plead guilty, plea counsel did contradict his testimony, and the court found counsel's testimony credible. Plea counsel were seasoned defense lawyers with experience in DWI accident cases. Mr. Hutcherson has not shown that they were ineffective. They did what he asked them to do, they fully investigated the case, and they spent a great deal of time exploring every avenue of defense with him so that his decision to plead would be voluntary and made on the basis of all the facts.

Id., pp. 8-9.

As to the second point, whether counsel's investigation of the case was constitutionally defective for failing to conduct another accident reconstruction, counsel testified that a second accident reconstruction company was contacted, but that no follow-up occurred because they were negotiating a plea agreement with the State shortly after the initial contact was made and because “Mr. Hutcherson had indicated that he wanted us to work something out on the case [with the State].” Mr. Hutcherson introduced the testimony of Mr. Travis Jones, a retired police officer, who discussed the additional factors he would have included in such a reconstruction. …. Significantly, Mr. Jones testified that it was only “possible” that something besides impaired driving caused the accident, and that, despite the presence of traffic preceding Mr. Hutcherson in his lane of travel, Mr. Hutcherson's vehicle was the only one that struck the pedestrians on the highway's shoulder
Counsel's strategic choices, made “after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” McLaughlin v. State, 378 S.W.3d 328, 342 (Mo. banc 2012). … Even if the witness's testimony would have been more favorable, “counsel is not required to shop around for an expert who might provide more favorable testimony.” Dorsey v. State, 448 S.W.3d 276, 294 (Mo. banc 2014). Mr. Hutcherson did not establish that counsel was aware of Mr. Jones or that his testimony would have assisted his defense. Moreover, as noted above, plea counsel aborted their effort to secure a second accident reconstruction report because active plea negotiations had begun, and Mr. Hutcherson had indicated his preference to enter a plea. Counsel would have wasted his resources under these circumstances if they had paid a second accident reconstruction expert to prepare a report.

Id., pp. 10-12.

In the third point, Mr. Hutcherson argues that his consumption of Vicodin before the plea hearing rendered his plea involuntary. … A review of the plea hearing transcript shows that Mr. Hutcherson was actively engaged in responding to the court during the plea colloquy, answering in some cases more than just “yes” or “no.” Thus, any contention that his cognition was impaired during the hearing rests solely on his testimony, which the motion court was free to believe or to discredit. The motion court found his testimony on this point not credible. This point is denied.
Because the court did not err in denying Mr. Hutcherson's post-conviction motion, [the Court of Appeals] affirm[s].

Id., pp. 12-13.

         II. ...

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