Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF MISSISSIPPI COUNTY Honorable David
W. LYNCH, P.J.
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. 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.
and Procedural Background
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.
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."
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.
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."
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.
Principles of Review and Governing Law
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.
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.
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 ...