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Hounihan v. State

Supreme Court of Missouri, En Banc

October 15, 2019

DONNIE WAYNE HOUNIHAN, Appellant,
v.
STATE OF MISSOURI, Respondent.

          Appeal From the Circuit Court of Pemiscot County The Honorable W. Keith Currie, Judge.

          Mary R. Russell, Judge.

         Donnie Hounihan appeals the motion court's judgment overruling his Rule 29.15 motion for postconviction relief. Hounihan was convicted of driving while intoxicated under sections 577.010 and 577.023 and driving while revoked under section 302.321.[1] In his Rule 29.15 motion, Hounihan argued his trial counsel was ineffective for failing to call his physician to testify that medications he took for his illnesses made him appear intoxicated by alcohol on the night he was arrested. Because there is not a reasonable probability the trial court's finding would have been different had the physician testified at Hounihan's trial, the motion court did not err in denying Hounihan's Rule 29.15 claim for postconviction relief relating to his driving while intoxicated conviction.

         Hounihan further asserted his appellate counsel was ineffective for failing to argue there was insufficient evidence to enhance his driving while revoked misdemeanor to a felony pursuant to section 302.321.2 because the evidence did not establish (1) he was represented by counsel or filed a written waiver of counsel before his prior municipal court conviction and (2) whether he had served more than 10 days on either of the prior convictions for driving while revoked. Because appellate counsel's failure to raise the sufficiency of evidence claim constituted deficient performance by which Hounihan was prejudiced, the motion court erred in denying Hounihan's Rule 29.15 claim for postconviction relief for the driving while revoked conviction.

         Background

         Hounihan was charged with the class B felony of driving while intoxicated under sections 577.010 and 577.023 and the class D felony of driving while revoked under section 302.321. Evidence adduced at trial demonstrated that, in September 2014, a patrolman observed Hounihan driving a vehicle that crossed the center line at least three times. The patrolman stopped the vehicle and observed that Hounihan had cigarette ashes in his lap and smelled of alcohol. The patrolman asked for Hounihan's driver's license and insurance. Hounihan replied that he had neither and that he believed his driver's license was revoked. The patrolman then instructed Hounihan to step outside his vehicle and walk to the patrol vehicle. Hounihan swayed as he walked. Inside the patrol vehicle, the patrolman observed Hounihan's eyes were bloodshot, watery, and glassy. Hounihan admitted he had consumed several beers and a pint of whiskey before driving.

         The patrolman placed Hounihan under arrest and took him to a hospital for a blood sample, which showed a blood alcohol content level of 0.15. During questioning at the hospital, Hounihan again admitted he drank beer and whiskey within three hours of being stopped. He further stated he took hydrocodone, Klonopin, and other prescription drugs.

         Hounihan testified regarding his many mental and physical illnesses, including chronic obstructive pulmonary disease, asthma, black mold poisoning, memory loss, and bulging spinal disks. He stated his medications had made his eyes watery and red on the day the patrolman stopped him.

         The trial court found Hounihan guilty as charged and sentenced him to seven years' imprisonment for driving while intoxicated and four years' imprisonment for driving while revoked, to run concurrently. Hounihan's convictions were affirmed on direct appeal. In his amended Rule 29.15 motion for postconviction relief, Hounihan argued trial counsel was ineffective for failing to call his physician to testify that the medications he took for his illnesses made him appear intoxicated by alcohol on the night he was arrested. He further asserted appellate counsel was ineffective for failing to argue there was insufficient evidence to enhance his driving while revoked misdemeanor to a felony pursuant to section 302.321.2. Hounihan claimed the State failed to present evidence establishing (1) Hounihan was represented by counsel or filed a written waiver of counsel before a prior municipal court conviction and (2) he had served more than 10 days on either of the prior convictions for driving while revoked, as required under section 302.321.2, to enhance the misdemeanor to a felony.

         At the evidentiary hearing, trial counsel testified she was aware prior to trial that Hounihan wanted his physician to testify. She stated she wrote a letter to Hounihan advising she would not ask his doctor to testify "[d]ue to the high amount of unpaid fees." She admitted she had not contacted the physician and, accordingly, was unware whether he charged a fee. Trial counsel further stated she did not believe the physician's testimony would have aided Hounihan's defense because there was substantial evidence of his intoxication. The physician testified Hounihan had a number of physical conditions affecting his balance and gait. He stated he did not charge a fee to testify and, if called at Hounihan's trial, he would have testified similarly.

         In an affidavit, appellate counsel conceded he should have argued on direct appeal that there was insufficient evidence to convict Hounihan of the felony of driving while revoked under section 302.321. He stated that he failed to raise the claim "under a mistaken understanding of the quantum of proof necessary" for the trial court to enhance Hounihan's driving while revoked misdemeanor to a felony and that he had "no strategic or other legal reason" for failing to raise the issue.

         The motion court overruled Hounihan's motion for post-conviction relief. Hounihan appeals.[2]

         Standard of Review

         A motion court's judgment denying postconviction relief will be affirmed unless its findings and conclusions are clearly erroneous. Rule 29.15(k); Meiners v. State, 540 S.W.3d 832, 836 (Mo. banc 2018). Findings and conclusions are clearly erroneous only when "this Court is left with a definite and firm impression that a ...


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