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State v. Geist

Court of Appeals of Missouri, Southern District, First Division

April 30, 2019

STATE OF MISSOURI, Plaintiff-Respondent,
v.
ROBERT EUGENE GEIST, Defendant-Appellant.

          APPEAL FROM THE CIRCUIT COURT OF CRAWFORD COUNTY Honorable Kelly W. Parker, Circuit Judge.

          OPINION

          Nancy Steffen Rahmeyer, J.

         Shortly before the State completed the presentation of its evidence to a jury, Robert Eugene Geist ("Defendant") chose to enter a plea of guilty to each of the four offenses for which he was being tried. Slightly more than four months later on the day of sentencing, Defendant's trial counsel orally requested to withdraw from representing Defendant. The trial court denied counsel's request, and Defendant then orally requested to withdraw his guilty pleas. The trial court denied that request as well, and, later that same day, imposed sentence on Defendant. Defendant appeals from the judgment contending in two points that the trial court erred in denying defense counsel's oral request to withdraw, and in denying Defendant's oral request to withdraw his guilty pleas. We deny Defendant's points, and affirm the trial court's judgment.

         Facts and Procedural Background

         A trial to a jury commenced on December 7, 2016, on a second amended information. The prosecutor announced that he "anticipate[d]" calling three witnesses, and defense counsel stated, "It's hard to say at this point[, ] sir[, ] it just depends on what the, I don't anticipate my client testifying. I think we both knew that but I don't believe I have any other witnesses but it's hard to say at this point."

         The trial court informed Defendant he was charged with (1) one count of the class B felony of possession of methamphetamine with the intent to distribute with a range of punishment from five to fifteen years in prison, and (2) three counts of the class C felony of unlawful possession of a firearm with a range of punishment for each count of up to seven years in prison (Defendant was alleged to have knowingly possessed three separate firearms - a shotgun, a pistol and an assault rifle). All the offenses were alleged to have occurred on February 18, 2016. Defendant entered a plea of not guilty to each count. Defendant also was informed that, if he was found to be a prior and persistent offender, the range of punishment would be increased to from "ten to thirty years or life imprisonment" on count one and "five to fifteen years" on each of counts two through four. Defendant acknowledged that he had received and rejected a plea offer, and "want[ed] to continue with the trial."

         The prosecutor then introduced evidence of Defendant's alleged two prior felony convictions without objection by defense counsel, and the trial court found "beyond a reasonable doubt that the defendant is a prior and a persistent offender." Two law enforcement officers then testified - a former detective for the Crawford County Sheriff's Department, [1] and "an investigator with the Lake Area Narcotics Enforcement Group assigned to Crawford County."

         The former detective told the jury that he served a search warrant at Defendant's residence on February 18, 2016. Defendant was present at his residence during the search. In the course of the search, Defendant showed the officer a "cache" of "illegal drugs and drug paraphernalia," including "methamphetamine and weed," "two bags of crystalline sub[s]tance that tested positive for methamphetamine," "a bag containing marijuana," and "scales," in a "display case" in the garage, and a shotgun "that was next to that area." The officer also "went into the residence and located" a total of thirty-seven firearms. The firearms found included a second shotgun located in "a back gun safe" that the officer believed was open, a "Colt Gold Cup 1911 45 automatic handgun" seized from Defendant's residence, and an "AK 47 assault rifle" found in the residence along with a "drum magazine." Defendant told the officer he "knew" about the handgun, and that the "guns did belong to him." Defendant also told the officer that the second shotgun "was his." The second shotgun did not have a serial number as the shotgun had been "defaced." Defendant told the officer that Defendant "was the owner" of the assault rifle.

         Following discovery of the firearms, the officer read Defendant his "Miranda rights" after which Defendant made a statement. The statement included Defendant telling the officer that "the guns were his," and "he knew he shouldn't have them but he wanted to pass them on to his son." In a later interview at the Sheriff's Department, Defendant also told the officer "he purchased some of the weapons," "some of the weapons were very expensive," and "he traded [dope] sometimes for guns that he believed were probably stolen." Defendant also told the officer that "he sold meth to a[n] unidentified person in the prior six months."

         At the time of the search, Defendant's wife told the officer that "some of the weapons in the safe did belong to her," but she was unable to describe the weapons and "then conceded that the weapons belonged to Defendant."

         The investigator testified as follows. From Defendant's garage, the investigator collected

[four] small bags with a crystalline substance which field tested positive for the presence of methamphetamine and was later sent to the lab and came back as methamphetamine. And then items of drug paraphernalia . . . There was numerous bags which I associate to the packing of illegal substances for distribution as well as scales with residue which field tested positive for meth.

         The "numerous bags" were "too many to count." The investigator showed the jury the "numerous bags" and the "small bags" he collected. The investigator also collected "some larger bags" with residue. In the investigator's experience, "[l]arger bags are an indication of large quantities of drugs being kept in those bags," and the presence of smaller bags indicates "smaller quantities being broke down from the larger quantities for distribution." The significance of the scales was "to verify the weight of various amounts, smaller amounts."

         The investigator also collected a bag of marijuana. In a post-Miranda interview that was recorded, Defendant told the investigator the drugs seized were "just his personal use" and "he hadn't done larger quantities in quite a while." However, Defendant also told the investigator that an unnamed "friend" still "owed him money for drugs." Based on the evidence, the investigator opined that Defendant's operation "was still involved in the distribution of methamphetamine," and "the amount [Defendant] had" "is more than what we normally see on a personal use case." On cross, the investigator acknowledged the amount "could go either way" - "either a personal use amount or a distribution amount."

         Following the completion of the investigator's testimony, the prosecutor announced that the State had "one more witness" - "the lab technician." Defense counsel then asked "if we could take a recess," and the trial court granted "a short break." Before the jury was brought back into the courtroom, an exchange between counsel, Defendant and the trial court occurred where Defendant plead guilty to each of the four offenses being tried. See Appendix A (attached).

         The trial court accepted the guilty pleas after taking judicial notice of all the evidence and asking Defendant if he agreed that is what the evidence was. The trial court found that Defendant's pleas of guilty were made freely, voluntarily and intelligently, with full understanding of the charges and consequences of the pleas and with full understanding of his rights attending a jury trial, and the effect of the pleas of guilty on those rights. The trial court also found that there was a factual basis for the pleas. The trial court then ordered the Board of Probation and Parole to prepare a sentencing assessment report, and scheduled sentencing for February 27, 2017. The trial court released the parties, and subsequently discharged the jury.

         Following at least two continuances of sentencing, Defendant appeared for sentencing on April 19, 2017. At the outset of the hearing, defense counsel orally[2] announced to the trial court that Defendant "has directed me to withdraw as counsel and he wishes to seek alternate counsel. He feels that I unduly pressured him to plead guilty in this case so he will also be seeking to withdraw his guilty plea. I know that you will not allow me to withdraw until alternate counsel has entered." The prosecutor "oppose[d] the request unless he has another counsel that's going to enter for him today," and also argued that Defendant "had ample time to get another attorney if he wanted one." The trial court then stated "[o]kay the request to withdraw is denied at this time because this matter has been going on way too long."

         Defense counsel then orally informed the trial court that Defendant "wishes to withdraw his guilty plea, that's our second request Your Honor." The following discussion between the trial court, counsel, and Defendant then occurred:

[Defense Counsel]: He does not believe he's guilty of this offense and he believes I unduly influenced him into pleading guilty. He was unhappy during my performance during trial and he believes that's one of the reasons that he pled guilty and that unduly influenced him.
The Court: Okay. Do you wish to be heard further on that?
[Defense Counsel]: [Defendant] probably does Your Honor. I think I've laid out the . . .
Defendant: That's pretty much everything.
The Court: Okay[, Defendant, ] do you wish to be heard further on that, do you join in your attorney's request to withdraw your guilty plea?
Defendant: Yes I do.
The Court: Anything else?
Defendant: I pled guilty to something I'm not guilty of. It was just a highly pressured time and I didn't have no choice and the longer I think about it the worse I get.
The Court: Okay[, ] State wish to be heard?
[Prosecutor]: Yes[, ] Your Honor. We are opposed to that request[.]
The Court: Okay the request to withdraw guilty plea is overruled and denied[.]

         Later that same day after a recess, the trial court recalled the case for sentencing. At the sentencing, Defendant took the witness stand and testified about a number of topics including that Defendant disagreed with "pretty much" the entire statement of facts in the sentencing assessment report. Defendant also testified that he felt defense counsel's "assistance was ineffective" because:

I can't get a phone call usually, late for court, this, that and the other. I don't know how to say, she's not open with me I guess is what I want to say. I mean I like to know everything ahead of time before I get caught up in the middle of something and it's just my nature and she's not met my expectations.

         Defendant requested probation.

Defendant's wife also testified, and told the trial court,
[The] guns were mine. I was the only one who had the combination to the safe and I was the one who gave them that combination to the safe when they asked for it. They belong to me, not anybody else. They were forfeited over to me whenever my husband got in trouble years ago. He hasn't touched a gun. He knows better. I kept them locked in a safe for a reason[.]

         In line with the prosecutor's agreement at the time of Defendant's guilty pleas, the prosecutor recommended fifteen years on Count I and ten years on each of Counts II through IV with the sentences to run concurrently. The trial court imposed a sentence of fifteen years on possession of methamphetamine with the intent to distribute (Count I), and a sentence of ten years on each of the three counts of unlawful possession of a firearm (Counts II through IV), with the sentences to run concurrently.

         During the trial court's questioning of Defendant in making its determination of whether there was probable cause to believe defense counsel was ineffective, Defendant told the trial court: "It was just that day of the trial, we went to lunch and when we come back it was like the whole room, a whole new ball game, I mean everybody did a 180, she was doing great and then all of a sudden poof, you need to plea. I was feeling like I didn't know what to do." The State had not made a new offer; "I just don't know what it was, I still don't know." Defense counsel did not "do something that [Defendant] requested her not to do." When asked if defense counsel "fail[ed] to do something that [Defendant] requested her to do," Defendant replied:

Other than return phone calls and be here when she was supposed to be you know I just, I was not informed real fully of everything that I could have done. I could have had a change of venue or something, none of that was ever explained. I had two choices that day of the trial.
The Court: I think I asked you when we took your guilty plea whether you understood you have a right to a change of venue.
Defendant: Yeah and I was probably in a mode, you know my wife was upset and I couldn't get them to cooperate you know I had two choices so I took the best of the two that I thought was the best but apparently it wasn't.

         Defense counsel did not respond to Defendant's complaints about her performance. The trial court subsequently found that "there is no probable cause of ineffective assistance of counsel."

         Analysis

         In his first point, Defendant asserts that the trial court erred in denying defense counsel's oral request to withdraw, "or in the alternative, by failing to grant [Defendant] a continuance," "in that an irreconcilable conflict existed between [Defendant] and [defense] counsel, where [defense] counsel was required to argue a motion that was predicated on [defense] counsel's own alleged impropriety, and the denial was an abuse of discretion."

         Rule 84.04(e)[3] requires that the argument portion of the brief "include a concise statement describing whether the error was preserved for appellate review; if so, how it was preserved; and the applicable standard of review." Defendant's first point fails to comply with this requirement. At sentencing, defense counsel's stated ground for her request to withdraw was that Defendant "feels [she] unduly pressured him to plead guilty." Neither defense counsel nor Defendant claimed that defense counsel had an irreconcilable conflict with Defendant at the time of sentencing, or requested a continuance from the sentencing. Defendant's first point was not presented to the trial court. Defendant does not request plain error review, and, in the absence of a request, we decline to exercise our discretion to review for plain error.

         Defendant's first point is denied.[4]

         In his second point, Defendant asserts that the trial court erred in denying Defendant's oral request to withdraw his guilty pleas on the day of sentencing "in that the full record available to the trial court established that [Defendant's] plea of guilty was the product of misapprehension, fear, and undue influence, and/or that the trial court wrongfully believed that a motion for post-conviction relief was ...


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