Browning v. State

685 S.W.3d 639

Mary L. BROWNING, Appellant,

v.STATE of Missouri, Respondent.

WD 85859

Missouri Court of Appeals, Western District.

Filed: March 5, 2024

APPEAL FROM THE CIRCUIT COURT OF DAVIESS COUNTY, THE HONORABLE RYAN W. HORSMAN, JUDGE

Rosemary E. Percival, Kansas City, for Appellant.

Shaun Mackelprang, Jefferson City, for Respondent.

BEFORE DIVISION THREE: LISA WHITE HARDWICK, PRESIDING JUDGE, KAREN KING MITCHELL, JUDGE, AND CYNTHIA L. MARTIN, JUDGE

Lisa White Hardwick, Judge

Mary Browning appeals from the judgment denying her Rule 24.035 motion after she pleaded guilty to two counts of stealing and two counts of forgery. She contends the motion court clearly erred in denying her claim that plea counsel was ineffective for failing to advise her that she had a viable defense to the class C felony of stealing. For reasons explained herein, we affirm.

Factual and Procedural History

In December 2017, the City of Coffey requested that the Missouri State Auditor’s Office ("SAO") investigate discrepancies within the City’s financial accounts. The SAO’s report found that between September 2015 and August 2017, Browning, in her official capacity as the City Clerk of the City of Coffey, forged the City of Coffey Board Minutes, appropriated excess payroll funds, and misappropriated $33,000¹ in utility payments meant to be credited to the utility accounts of the City’s residents. The State charged Browning as a prior and persistent offender with the class D felony of stealing (Count I), the class C felony of stealing (Count II), and two counts of the class D felony of forgery (Counts III and IV).

In November 2020, Browning entered a guilty plea pursuant to a plea agreement. The agreement stipulated that in exchange for Browning’s guilty plea, the State would withdraw the prior and persistent offender allegations, recommend a total sentence of 15 years in prison, and would not object to Browning arguing for any disposition within that cap. Browning also agreed to restitution of approximately $55,000, with the exact amount to be determined in the Sentencing Assessment Report.

During the guilty plea hearing, the State informed Browning that the range of punishment for Counts I, III, and IV was up to seven years in the Department of Corrections, up to one year in the regional jail, a fine of up to $10,000, or any combination of fine and incarceration; and the range of punishment for Count II was three to ten years in the Department of Corrections, a fine of up to $10,000, or any combination of the fine and incarceration up to those maximums. The court restated the ranges of punishment, and Browning affirmed that she understood and still wished to plead guilty. Browning asserted that she was entering the plea freely, voluntarily, and with understanding of her rights. She stated that she understood the charges, plea counsel had answered all her questions regarding the charges, and she had no further questions. Browning affirmed that she reviewed the guilty plea petition and waiver of rights with plea counsel, plea counsel handled her case in a thorough and competent manner, and she had no complaints. The court accepted Browning’s guilty plea.

In February 2021, the court sentenced Browning to five years in prison on Count I, to run concurrently with five-year prison sentences on Counts III and IV, and consecutively with a ten-year prison sentence on Count II. During the sentencing hearing, the court questioned Browning about counsel’s representation and found no probable cause to believe that she received ineffective assistance of counsel. Following a subsequent restitution hearing, the court ordered that Browning pay restitution of $60,249.

Browning filed a pro se Rule 24.035 motion, which was later amended by ap- pointed counsel. In her amended motion, Browning claimed her guilty plea was entered unknowingly and involuntarily due to plea counsel’s failure to advise her that she could successfully seek dismissal of Count II based on the Missouri Supreme Court’s decision in State v. Bazell, 497 S.W.3d 263 (Mo. banc 2016). An evidentiary hearing was held, during which Browning and plea counsel consistently testified that plea counsel did not believe there were any strong defenses to the charges against her, counsel never informed her of the Bazell defense to lower the class of felony stealing, and accordingly, counsel advised her to plead guilty. Browning testified that she would not have pleaded guilty if counsel had advised her she had a meritorious defense.

Following the evidentiary hearing, the motion court entered its findings of fact and conclusions of law denying Browning’s Rule 24.035 motion. In the judgment, the court found that Bazell presents no defense to Browning’s case because Section 570.030.11² specifically permits amounts stolen "pursuant to one scheme or course of conduct" to be aggregated for determining which class of offense the stealing may be charged. The court concluded that Browning’s individual occasions of theft between September 2015 and August 2017 were properly aggregated pursuant to the statute. Finding that plea counsel’s performance was not deficient and that Browning suffered no prejudice, the court denied the claim. Browning appeals.

Standard of Review

[1–4] We review the denial of a post-conviction motion for clear error. Rule 24.035(k). The motion court’s findings and conclusions are clearly erroneous only if a review of the entire record leaves us with a definite and firm impression that a mistake was made. Dobbins v. State, 187 S.W.3d 865, 866 (Mo. banc 2006). We defer to the motion court’s determination of the witnesses’ credibility. Cooper v. State, 621 S.W.3d 624, 630 (Mo. App. 2021). We will affirm the motion court’s judgment if it is sustainable on any legal ground supported by the record. Swallow v. State, 398 S.W.3d 1, 3 (Mo. banc 2013).

[5–7] To be entitled to post-conviction relief for ineffective assistance of counsel, Browning had to establish that plea counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under the same or similar circumstances and that she was thereby prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct 2052, 80 L.Ed.2d 674 (1984). "After a plea of guilty, the issue of ineffective assistance of counsel is only relevant to the extent that it affected the voluntariness of the guilty plea." Hernandez v. State, 588 S.W.3d 467, 471 (Mo. App. 2019). "The prejudice prong is met if the movant shows that but for counsel’s ineffective assistance, he or she would … not have pleaded guilty but would have instead insisted on going to trial." Id. Browning had to prove both the performance and prejudice prongs of this test to prevail, and if she failed to satisfy either prong, we need not consider the other. Cone v. State, 316 S.W.3d 412, 415 (Mo. App. 2010).

[8–10] To satisfy the performance prong of the Strickland test, Browning had to demonstrate that plea counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under the same or similar circumstances. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. This standard is intentionally vague and "highly deferential" to counsel. Id. at 689, 104 S.Ct. 2052. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time." Id. Browning "must overcome the strong presumption that [plea] counsel’s conduct was reasonable and effective." Hosier v. State, 593 S.W.3d 75, 81 (Mo. banc 2019) (citation omitted). "Reasonable choices of trial strategy, no matter how ill-fated they appear in hindsight, cannot serve as a basis for a claim of ineffective assistance." Id. (citation omitted).

Analysis

In her sole point on appeal, Browning contends the motion court clearly erred in denying her claim that plea counsel was ineffective for failing to assert a Bazell defense to stealing $33,000 in utility payments in Count II, because any monies appropriated prior to the January 1, 2017 amendment to the stealing statute could not be used to enhance her conviction from a class D felony to a class C felony. Browning argues that, if plea counsel had informed her there might be a meritorious defense to any of the charges, she would not have pleaded guilty.

Browning’s crimes occurred between September 2015 and August 2017. During that time, the Supreme Court issued Bazell, 497 S.W.3d 263, which interpreted the felony enhancement provision of Section 570.030. In Bazell, the defendant was charged with class C felonies under Section 570.031.1, RSMo Supp. 2009, for stealing firearms. Id. at 266. At that time, stealing was defined as "appropriat[ing] property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion[.]" § 570.030.1, RSMo Supp. 2009. The enhancement provision stated that "[n]otwithstanding any other provision of law, any offense in which the value of property or services is an element is a class C felony," if certain conditions were met. § 570.030.3, RSMo Supp. 2009. Interpreting this language, the Court in Bazell found that "the felony enhancement provision, by its own terms, only applies if the offense is one in which the value of the property or services is an element." 497 S.W.3d at 266 (internal quotation marks omitted) (citing § 570.030.3, RSMo Supp. 2009). The Court held that the defendant’s two felony convictions for stolen firearms must be classified as misdemeanors because the value of property or services was not an element for which Section 570.030.3, RSMo Supp. 2009, could be used to enhance the offenses. Id. at 267.

Significantly, effective January 1, 2017, the legislature subsequently amended Section 570.030 to make the offense of stealing a class C felony when the...