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Durst v. State

Court of Appeals of Missouri, Southern District, First Division

September 25, 2019

COLBY DEAN DURST, Movant-Appellant,
v.
STATE OF MISSOURI, Respondent-Respondent.

          APPEAL FROM THE CIRCUIT COURT OF MISSISSIPPI COUNTY Honorable David A. Dolan.

          GARY W. LYNCH, P.J.

         Colby Dean Durst ("Movant") appeals the motion court's judgment denying his Rule 24.035 motion for post-conviction relief alleging ineffective assistance of plea counsel.[1] On appeal, Movant claims that the motion court clearly erred in finding that Movant failed to meet his burden of proof. Finding no clear error, we affirm.

         Factual and Procedural Background

         As part of a negotiated plea agreement with the State ("the plea agreement"), Movant pleaded guilty to one count of first-degree assault, one count of first-degree domestic assault, and one count of resisting arrest. He was sentenced to a seven-year sentence for each assault, to run concurrently, and a three-year sentence for resisting arrest, to run consecutive to the assault sentences.

         Thereafter, Movant timely sought post-conviction relief ("PCR"). His timely amended PCR motion alleged, in pertinent part, that "[p]lea counsel, Travis Bargeon, was ineffective for failing to negotiate a good plea agreement for [Movant] and failed to properly advise [Movant] about the State's offer and the negotiations" and "[t]here is a reasonable probability that, but for counsel's ineffectiveness, the result of the proceedings would have been different."

         At the evidentiary hearing held on Movant's amended PCR motion, the motion court received testimony from Movant by way of a transcript from an earlier telephone deposition. According to his deposition testimony, Movant learned from Bargeon, after pleading guilty under the terms of the plea agreement, that the prosecutor was "aggravated and upset" because the victims' stories "didn't really make sense" and were not "adding up." According to Movant, had he known this information, he would not have pleaded guilty and instead would have gone to trial.

         Bargeon testified in person at the evidentiary hearing. According to Bargeon, Movant wanted to enter into the plea agreement at the preliminary hearing stage even though Bargeon "begged him not to" and explained to him that "if [they] played the waiting game for a while, [they] may be able to shave some of that off." On the issue of Movant's allegation that the prosecutor had misgivings concerning the victims, Bargeon testified, "I have none, absolutely no recollection of that. I can tell you I can't remember a single time in my career that a Prosecutor has told me that his witnesses would not do well or would not have done well."

         In its judgment, the motion court found that Movant had failed to meet his burden of proving his claim and affirmatively found that "[Bargeon] did in fact exercise []the customary skill and diligence of a reasonably competent attorney under similar circumstances, and Movant cannot show that he was prejudiced in any way by [Bargeon]'s performance." Specifically noting the testimony of Movant and Bargeon detailed in this opinion, supra, the motion court "[did] not find Movant's testimony to be credible" and "[found] Bargeon's testimony to be credible[.]" The motion court, therefore, ultimately denied Movant's PCR claim. Movant timely appeals.

         Applicable Principles of Review and Governing Law

         The movant in a PCR case has the burden of proving his claims by a preponderance of the evidence. Rule 24.035(i). Appellate review of the motion court's denial of Movant's Rule 24.035 PCR motion is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 24.035(k). The motion court's findings are presumed correct and will be overturned only after, upon review of the entire record, the reviewing court is left with a definite and firm impression that a mistake has been made. Vaca v. State, 314 S.W.3d 331, 334 (Mo. banc 2010). Furthermore, we will defer to the motion court's determinations of credibility, and the motion court is free to believe all, part, or none of the witnesses' testimony. Zink v. State, 278 S.W.3d 170, 192 (Mo. banc 2009).

         To prove ineffective assistance of counsel, a movant must demonstrate (1) that counsel's representation failed to conform to the degree of skill, care, and diligence of a reasonably competent attorney rendering similar services under similar circumstances (performance prong); and (2) that the movant was prejudiced as a result of counsel's failure (prejudice prong). Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987). Where a movant's conviction results from a guilty plea, "any claim of ineffective assistance of counsel is immaterial except to the extent that it impinges [upon] the voluntariness and knowledge with which the plea was made." State v. Roll, 942 S.W.2d 370, 375 (Mo. banc 1997).

         Discussion

         Movant's sole point contends that the motion court clearly erred in denying post-conviction relief because Movant "presented credible, uncontradicted evidence" that Bargeon "was ineffective for unreasonably failing to inform him that the prosecutor had doubts regarding the credibility of the victims, which would have bolstered his confidence in mounting a ...


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