Greer v. State

637 S.W.3d 472

Marcus GREER, Appellant,

v.STATE of Missouri, Respondent.

No. ED 109340

Missouri Court of Appeals, Eastern District, DIVISION FOUR.

Filed: October 26, 2021

Motion for Rehearing and/or Transfer to Supreme Court Denied December 6, 2021

Application for Transfer Denied February 8, 2022

FOR APPELLANT: Kristina S. Olson, 1010 Market Street, Suite 1100, Saint Louis, Missouri 63101.

FOR RESPONDENT: Eric Schmitt, Shaun J. Mackelprang, P.O. Box 899, Jefferson City, Missouri 65102.

James M. Dowd, Judge

Following his convictions for multiple sex crimes involving three minor girls for which he was sentenced to a total of 128 years in prison, Appellant Marcus Greer filed his amended Rule 29.15 motion in which he alleged that his trial counsel, of which there were three, were ineffective (1) for violating the duty of confidentiality by discussing the State's plea offer with his parents to enlist their assistance in convincing Greer to accept the offer, and (2) for failing to object to allegedly improper remarks made by the prosecutor during closing argument.

On October 26, 2020, the motion court issued its judgment which included findings of fact and conclusions of law denying without an evidentiary hearing Greer's post-conviction motion. This appeal follows.

We have reviewed Greer's second point and find that the motion court did not err in rejecting Greer's claim his counsel was ineffective for failing to object during the State's closing argument. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential or jurisprudential value. Pursuant to Rule 84.16(b), we have provided the parties with a memorandum, for their information only, setting forth the reasons for our decision on Greer's Point II. However, Greer's appeal of Point I requires our consideration in this published opinion.

Factual and Procedural Background

In the underlying case and in the light most favorable to the jury verdict, the following evidence was adduced: Sometime in April or May 2017, victim J.K., who was 12 years old at the time, went to the home of her friends, victims D.G. and J.G., to play with a volleyball. D.G. and J.G. are the biological daughters of Kate Cheshire with whom Greer lived. When J.K. arrived, Greer told her that the girls were not home, so J.K. left. Later that day, Greer saw J.K. playing outside alone and lured her to his home by convincing her to try on a tank top and shorts he claimed he purchased for J.G. After changing into the clothes, Greer instructed J.K. to enter his bedroom, bend over, and touch her toes. J.K. complied. Greer told her not to tell anyone about the incident.

A couple of weeks later, while J.K. was watching a movie with D.G. and J.G. in their bedroom, Greer convinced J.K. to follow him into the bathroom where he instructed her to expose her breasts which he then touched with his hands. Upon returning to the bedroom, J.K. told D.G., who was 10 years old at the time, that "something weird" happened. Greer, who had been listening from outside the door, later told D.G. not to tell anybody what had happened.

A week or so later, while J.K. and D.G. were together in the yard, J.K. told D.G. what Greer had done to her. D.G. responded that something similar had also happened to her. Later that day, they both told D.G.’s mother, Katie Cheshire. J.K. also told her own mother, who contacted the Children's Services division.

D.G. told Cheshire that on more than 10 occasions Greer had come into her bedroom at night and sexually assaulted her, which included Greer touching and penetrating D.G. with his fingers and Greer making D.G. touch his private parts. These incidents generally happened while Cheshire was at the gas station, at work, or at school. Greer instructed D.G. to not tell anyone about what he was doing to her.

Cheshire confronted Greer and recorded the conversation on her cell phone. Greer initially denied the allegations. After Cheshire called the police, Greer told D.G. that he was sorry, and implored Cheshire not to take any action. When the police arrived and approached Greer, he said that he was the one they were there for and to put him in cuffs.

A few days later, Cheshire found at her house a phone belonging to Greer. On it she found images of her daughters D.G. and J.G. in their underwear, and photos depicting Greer's hands on J.G.’s private areas. After Cheshire reported what she found to the Division of Family Services, a detective arrived and seized the phone.

Greer was charged, tried by jury, and convicted in the Circuit Court of the Ste. Genevieve County of three counts of the unclassified felony of statutory sodomy in the first degree in violation of section 566.062,¹ the class C felony of child molestation in the third degree in violation of section 566.069, and four counts of the class D felony of possession of child pornography in violation of section 573.037. The trial court sentenced Greer to consecutive terms of imprisonment in the Missouri Department of Corrections of thirty years each on Counts I, II, and III, ten years on Count IV, and seven years each on Counts V, VI, VII, and VIII, for a total of 128 years in prison. We affirmed his convictions and sentences in State v. Greer , 590 S.W.3d 437 (Mo. App. E.D. 2019) and issued our mandate on January 2, 2020.

Standard of Review

Appellate review of a judgment overruling a motion for post-conviction relief is limited to a determination of whether the findings of fact and conclusions of law issued by the motion court are "clearly erroneous." Rule 29.15(k);² see also Morrow v. State , 21 S.W.3d 819, 822 (Mo. banc 2000). The motion court's findings and conclusions are presumptively correct and will only be considered clearly erroneous if, after a full review of the record, the appellate court is left with the definite and firm impression that a mistake was made. Id. ; see also State v. Johnson , 968 S.W.2d 686, 695 (Mo. banc 1998). Allegations contained in a motion for post-conviction relief are not self-proving; instead, a movant bears the burden of proving his post-conviction claims by a preponderance of the evidence. Ervin v. State , 423 S.W.3d 789, 793 (Mo. App. E.D. 2013).

In instances where ineffective-assistance-of-counsel claims for post-conviction relief are the focus of our attention, we apply the Strickland test. See Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Johnson , 406 S.W.3d at 898. To be entitled to relief, the movant must show by a preponderance of the evidence that (1) his counsel failed to exercise the level of skill and diligence that a reasonably competent counsel would in a similar situation, and (2) he was prejudiced by that failure. Johnson , 406 S.W.3d at 898-99. To overcome the strong presumption that counsel's conduct was reasonable and effective, the movant must identify specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professionally competent assistance. Id. To show prejudice, the movant must demonstrate that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. If a movant fails to establish either prong, the claim of ineffective assistance must fail. Roberts v. State , 535 S.W.3d 789, 797 (Mo. App. E.D. 2017).

I. Counsel's disclosure of the State's plea offer to Greer's parents did not constitute the ineffective assistance of counsel because the information was not confidential and its disclosure did not prevent Greer from accepting the plea.

In Point I on appeal, Greer argues that counsel was ineffective because he improperly discussed the State's plea offer with Greer's parents without first obtaining his permission to do so. Greer contends this undermined his trust and confidence in his counsel and that but for counsel's conduct in this regard, he would have accepted the State's plea offer which bore a sentence of 20 years, instead of the 128 years he received at trial. We disagree because Greer's assertion is refuted by the record, is illogical, and constitutes rank speculation.

A criminal defendant has no constitutional right to a plea bargain or to a plea agreement. Rowland v. State, 129 S.W.3d 507, 510 (Mo. App. S.D. 2004). So, failed plea negotiations do not implicate the Constitution. Id. Rather, it is the ensuing plea of guilty arising from such negotiations that is of constitutional significance. Id. And to show prejudice where a plea offer has lapsed or been rejected because of counsel's alleged deficient performance, a defendant must demonstrate a reasonable probability he would have accepted the earlier plea offer had he been afforded effective assistance of counsel. Missouri v. Frye , 566 U.S. 134, 147, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012).

Turning to the record here, we find that Greer has failed to demonstrate (1) that his counsel was ineffective when he enlisted Greer's parents’ assistance in an effort to convince him to take the plea offer, and (2) that he would have accepted the plea offer but...