Court of Appeals of Missouri, Southern District, Second Division
KAYLA S. CORK, Movant-Appellant,
STATE OF MISSOURI, Respondent-Respondent.
FROM THE CIRCUIT COURT OF WRIGHT COUNTY Honorable R. Craig
Carter, Circuit Judge
WILLIAM W. FRANCIS, JR., J.
S. Cork ("Cork") appeals from the judgment of the
motion court denying her amended Rule 24.035 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.
and Procedural Background
"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.
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); 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.
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
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
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
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.
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
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.
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).
"case review" hearings were scheduled by the motion
court. Post-conviction counsel filed multiple motions for
continuance, and on April 8, 2016, the ...