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Spicher v. State

Court of Appeals of Missouri, Southern District, Second Division

March 28, 2018

CASEY A. SPICHER, Movant-Appellant,
v.
STATE OF MISSOURI, Respondent-Respondent.

          APPEAL FROM THE CIRCUIT COURT OF HICKORY COUNTY Honorable Michael Hendrickson, Circuit Judge

          WILLIAM W. FRANCIS, JR., J.

         Casey A. Spicher ("Spicher") appeals from the judgment of the motion court, following an evidentiary hearing, denying his amended Rule 24.035[1] motion to set aside his convictions for felony sexual assault and deviate sexual assault. In one point on appeal, Spicher asserts the motion court clearly erred in denying his post-conviction motion, because plea counsel was ineffective for failing to inform him that filing a motion to suppress statements he gave to law enforcement would "constitute a viable defense to the charged crime." Because the motion court's denial of Spicher's Rule 24.035 motion was not clearly erroneous, we affirm.

          Facts and Procedural Background

         Spicher was initially charged with one count of forcible rape (Count I), pursuant to section 566.030, [2] in that on or about March 14, 2012, in Hickory County, he knowingly had sexual intercourse with Victim by the use of forcible compulsion.

         On March 14, 2014, Spicher entered into a plea agreement whereby he agreed to plead guilty to the class C felony of second-degree rape (Count I), and deviate sexual assault (Count II), [3]in exchange for two consecutive sentences of seven years imprisonment, with execution suspended as to each, and five years' probation.

         At the plea hearing on March 14, 2014, Spicher agreed that he committed second-degree rape in that he had non-consensual sexual intercourse with Victim on March 14, 2012, in Hickory County. Spicher also agreed that he committed deviate sexual assault in that he touched the genitals of Victim with his hand without consent. Spicher testified that he wanted to plead guilty to the two charges, pursuant to the plea agreement; that he understood the rights he was waiving by pleading guilty; and no one had coerced him into pleading guilty. Spicher stated he understood the range of punishments for these crimes. Spicher affirmed that he received discovery from the State and he went over the discovery with his attorney. Spicher told the plea court that he understood his right to a jury trial. Spicher also testified that he was satisfied with plea counsel's services and that they had not "done anything wrong in this case that has hurt [him] in any way[.]"

         On April 8, 2014, Spicher reappeared before the trial court due to an error in the classification of "rape in the second degree" in Count I as that classification no longer existed at the time of Spicher's offense. The trial court set aside Spicher's guilty plea to Count I, second-degree rape, and the State filed a second amended information charging Spicher with the class C felony of sexual assault for "knowingly having sexual intercourse with [Victim] without her consent."[4] Spicher stated he understood that he was charged with the same crime under Count I, but with "a different name on the charge[.]"

         Spicher stated he wished to continue with his plea of guilty to Count I, as reclassified, and that he still understood the rights he was waiving by entering the plea. The trial court found that Spicher's guilty plea to the class C felony of sexual assault was voluntarily and intelligently made, and the court sentenced Spicher, in accordance with the plea agreement, to the same sentence that he was given at the end of the previous plea hearing: seven years consecutive to Count II, with execution of the sentences suspended and five years' probation.

         On May 28, 2014, Spicher appeared for a probation revocation hearing. Following the revocation hearing, the trial court revoked Spicher's probation and executed his two consecutive seven-year sentences. Spicher testified that he was satisfied with his plea counsel, but that he was not satisfied with an investigator for the public defender's office. Spicher testified that he would have taken his case to trial, but the investigator told him that his neighbor would not testify he had seen Victim kissing Spicher after the offense was alleged to have occurred. Spicher testified that he pleaded guilty because "without that testimony, then I didn't think I had a shot." The trial court found no probable cause of ineffective assistance of counsel.

         On November 3, 2014, Spicher filed a timely pro se Rule 24.035 motion for post-conviction relief. On December 22, 2014, post-conviction counsel was appointed. The transcripts were filed on April 22, 2015. After an extension was granted, post-conviction counsel filed an amended motion on July 22, 2015, one day late.[5]

On July 8, 2016, following an abandonment hearing, the motion court found:
RECORD MADE ON RESPONDENT'S MOTION TO DISMISS. MOVANT AND RESPONDENT'S COUNSEL EACH MAKE ARGUMENT. COURT ALSO INQUIRES OF MOVANT'S COUNSEL REGARDING NEGLIGENCE ATTRIBUTABLE TO HIM AS OPPOSED TO ANY BY MOVANT. COURT FINDS COUNSEL HAS NOT ABANDONED MOVANT AFTER THE COURT INQUIRES. SAID INQUIRY WAS NECESSARY. SAYRE V. STATE, WD78975 (Mo BANC 2016) [SIC]. DESPITE THIS FINDING COURT NEED NOT DETERMINE WHETHER TO HEAR ONLY CLAIMS IN ORIGINAL MOTION OR ONLY CLAIMS IN AMENDED MOTION AS COURT DETERMINES NEGLIGENCE OF LATE FILING OF AMENDED MOTION IS COMPLETELY ATTRIBUTABLE TO MOVANT'S COUNSEL AND NOT MOVANT AS COUNSEL STIPULATE THE FILING OF THE AMENDED MOTION WAS DUE TO HIS WORKING UPON IT UP UNTIL THE FILING DEADLINE AND DUE TO HIS INATTENTION TO THE TIME AND COMPLIANCE WITH LOCAL RULE 4.7 AND SUPREME COURT RULE REGARDING FACSIMILY FILING. SANDERS V STATE, 807 S.W.2d 493 (MoBANC 1991) RESPONDENT'S M.T.D. IS OVERRULED. CASE SET FOR HEARING ON AMENDED MOTION 11/18/16 AT 9 A.M. MOH. cs

         Spicher asserted in his amended motion that plea counsel was ineffective for failing to file a motion to suppress his statements to police because they were the fruit of the poisonous tree of an unconstitutional search of his residence without a warrant.

         An evidentiary hearing[6] was held on December 12, 2016, at which Spicher and plea counsel testified. Plea counsel testified that Spicher had long discussions with her and with his family about pleading guilty. She did not recall any discussions with Spicher regarding filing a motion to suppress. She did not remember a motion to suppress "ever being a part of a strategy decision." Plea counsel testified that Spicher did not want to enter a guilty plea unless he could get probation because he feared he would be declared a "sexual violent predator"-due to a prior sexual offense-and if sent to prison, "there was a chance that he would have to go before the civil review board and may not get out of prison."

         Spicher testified he had a discussion with plea counsel and an investigator at the public defender's office in Bolivar where he raised the issue of the deputies illegally searching his house. Spicher stated that the investigator drew a picture of a target and told him that if he pursued that claim, he would be a target. Spicher testified that later he found out that he could have filed a motion to suppress and that "would have totally changed the game." ...


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