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Cork v. State

Court of Appeals of Missouri, Southern District, Second Division

December 6, 2017

KAYLA S. CORK, Movant-Appellant,
v.
STATE OF MISSOURI, Respondent-Respondent.

         APPEAL FROM THE CIRCUIT COURT OF WRIGHT COUNTY Honorable R. Craig Carter, Circuit Judge

          WILLIAM W. FRANCIS, JR., J.

         Kayla S. Cork ("Cork") appeals from the judgment of the motion court denying her amended Rule 24.035[1] motion to set aside her conviction of the class A felony of abuse of a child, resulting in death. Because the motion court's denial of Cork's Rule 24.035 motion without an evidentiary hearing was not clearly erroneous, we affirm.

         Facts and Procedural Background

         The "facts"-for purposes of our review-are those allegations of fact contained in Cork's amended Rule 24.035 motion, excluding from consideration such allegations as are refuted by the record or are mere conclusions. Lowery v. State, 520 S.W.3d 474, 478 (Mo.App. S.D. 2017). We set forth facts not otherwise imputed by this standard as necessary for context.

         Cork was indicted on the class C felony of endangering the welfare of a child in the first degree (Count I), pursuant to section 568.045.1(1);[2] the class A felony of abuse of a child (Count II), pursuant to section 568.060.1; and the class A felony of murder in the second degree (Count III), pursuant to section 565.021.1.

         Cork entered into a plea agreement with the State whereby the State would dismiss Counts I and III, and Cork would plead guilty to Count II, for which the State would recommend a 20-year sentence.

         A plea hearing was held on August 8, 2013. At the plea hearing, in response to questions from the trial judge, Cork stated she understood the charges against her, she had discussed those charges with her attorney, and she understood her sentence under her plea agreement to be "Twenty years, DOC, of guilty."

         At the trial court's request, the State then outlined the evidence that would be presented if the case went to trial: On August 3, 2012, medical personnel were dispatched to Cork's home where they found an unresponsive child who was then pronounced deceased at the scene. The child's injuries included bruising, multiple broken bones in various stages of healing, a lacerated small bowel, fluid field and infected abdominal cavity, significant blood loss, and an overdose ingestion of diphenhydramine. Cork was the primary care provider, and the child was in her care, custody and control when these injuries occurred. Cork was also responsible for the administration of the overdose of diphenhydramine.

         Cork admitted that the State's statement was correct and that she was "part of" what had happened to the child. The State indicated this was a class A felony and the range of punishment was 10 to 30 years in the Department of Corrections. The State suggested, per the plea agreement, that in exchange for Cork's plea of guilty to Count II, the State would recommend a sentence of 20 years and would dismiss Counts I and III. Cork indicated that was her understanding as to the plea agreement.

         Cork further indicated that she had not been promised anything else in exchange for her guilty plea other than what was contained in the plea agreement; that she had discussed her case fully with her attorney; her attorney had explained her legal rights and what happens as the result of her plea of guilty; and she had no complaints regarding her attorney and was satisfied with his services. She also suggested her attorney had a good grasp of the facts and the law in the case, had explained the facts of the case, the State's evidence, and how the evidence would be presented to a jury. Cork indicated she understood all her rights to a jury trial, including all rights attendant thereto. Cork stated that she was pleading guilty of her own free will, and she was guilty as charged.

         The trial court accepted Cork's plea of guilty, finding that the plea was voluntary, intelligently made, and made with a full understanding of the charge and the consequences of the plea. The trial court then sentenced Cork to 20 years in the Department of Corrections.

         On January 24, 2014, Cork timely filed a pro se Rule 24.035 motion. That same day, the motion court appointed the public defender to represent Cork. The transcript of the guilty plea and sentencing hearing was filed on November 6, 2014. Thus, any amended motion was due by January 5, 2015. See Rule 24.035(g).

         Numerous "case review" hearings were scheduled by the motion court. Post-conviction counsel filed multiple motions for continuance, and on April 8, 2016, the ...


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