McMullan v. State

648 S.W.3d 919

Thomas F. MCMULLAN, Appellant,

v.STATE of Missouri, Respondent.

No. ED 109685

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: August 9, 2022

FOR APPELLANT: Abraham P. Copi, Missouri Public Defender's Office, 1010 Market Street, Suite 1100, St. Louis, Missouri 63101.

FOR RESPONDENT: Sarah E. Ernst, Assistant Attorney General, PO Box 899, Jefferson City, Missouri 65102.

Philip M. Hess, Presiding Judge

Introduction

Thomas McMullan ("Movant") appeals the motion court's denial of his Rule 24.035 motion for post-conviction relief following an evidentiary hearing.¹ In his sole point relied on, Movant contends the motion court erred by denying his motion because Plea Counsel failed to advise him of a possible trial defense before he pled guilty, rendering his plea involuntary. He asserts he would not have pled guilty and would have proceeded to trial but for Plea Counsel's deficient performance.

We affirm.

Factual Background

On April 11, 2019, Movant was charged with first-degree arson under section 569.040 for starting a couch fire that damaged a neighbor's trailer.² At the preliminary hearing, Plea Counsel argued there was not probable cause to believe a felony was committed so the case should be charged as third-degree arson, a misdemeanor. Movant was present at the preliminary hearing. The court rejected Plea Counsel's argument, finding probable cause to believe Movant committed arson in the first degree. Arson in the first degree occurs when a person knowingly "damages a building or inhabitable structure, and when any person is then present or in near proximity thereto, by starting a fire or causing an explosion and thereby recklessly places such person in danger of death or serious physical injury[.]" § 569.040.1. Arson in the second degree occurs when a person "knowingly damages a building or inhabitable structure by starting a fire or causing an explosion." § 569.050.1. Arson in the third degree occurs when a person "knowingly starts a fire or causes an explosion and thereby recklessly damages or destroys a building or an inhabitable structure of another." § 569.053.1.

Following the preliminary hearing, the State offered Movant a plea to second-degree arson, with a recommended maximum punishment of four years’ imprisonment. The offer would allow Plea Counsel to argue for probation.

At his plea hearing on September 20, 2019, Plea Counsel noted the amended information charging arson in the second degree under a plea agreement. At the hearing, Movant testified he understood the charge he was pleading guilty to and the range of punishment stemming from his guilty plea. He stated his plea resulted from negotiations between himself, his attorney, and the prosecuting attorney. He testified no one threatened him or promised him anything in exchange for his plea. He stated he understood his rights pertaining to trial. The plea court stated:

[Movant], the essential elements of the charge filed against you are as follows:

That you did on or about April 11, 2019, in the County of St. Francois, State of Missouri, you knowingly damaged an inhabitable structure, consisting of a residential trailer home possessed by Marilyn Cunningham and located at 723 Maple Street, and you did so by starting a fire.

Movant admitted to every element of second-degree arson and the plea court found him guilty.

On November 15, 2019, the sentencing court heard arguments from both parties. The State recommended four years’ imprisonment or alternative long-care treatment. Plea Counsel argued for a suspended execution of sentence. The sentencing court sentenced Movant to four years’ imprisonment under section 217.362 and indicated if he successfully completed long-term drug treatment he would be released and placed on five years’ probation. Following sentencing, the sentencing court examined Movant about assistance of counsel. Movant stated he had enough time to speak with Plea Counsel about pleading guilty and Plea Counsel did as he wanted her to do. He then contradicted himself, stating he planned to file for post-conviction relief. Movant said he was unhappy with the outcome but satisfied with his counsel's services.

Movant timely filed his pro se motion for post-conviction relief on January 21, 2020. Motion Counsel was appointed and timely filed an amended motion on August 21, 2020, alleging Plea Counsel was ineffective for failing to advise Movant of the possibility of proceeding to trial on a lesser-included offense theory of third-degree arson.

On January 22, 2021, the motion court held an evidentiary hearing, at which Movant and Plea Counsel both testified they could not remember if Plea Counsel advised Movant of lesser-included offenses. Movant testified Plea Counsel did not discuss defenses with him but discussed a possibility of probation for Movant. Movant testified he would not have pled guilty if he knew there was a chance he could have been convicted of third-degree arson at trial instead of first-degree arson.

During the hearing, Movant stated he had never been in legal trouble but later admitted he had been found guilty of several prior charges. He also testified the couch was not originally within reach of the trailer, and someone had kicked the couch toward the trailer while the couch was already on fire. Plea Counsel testified Movant could have faced life imprisonment at trial because the evidence strongly supported first-degree arson and he could have been charged as a prior and persistent offender. She advised Movant to take the offer rather than go to trial.

The motion court found Plea Counsel's testimony credible and Movant's testimony not credible. Specifically, the motion court did not believe Movant's testimony Plea Counsel failed to advise him of his defenses or that he would have gone to trial had he known of those defenses. In finding Movant not credible in his testimony regarding Plea Counsel's alleged failure, the motion court specified its decision was influenced by Movant's stated intention to file for post-conviction relief at the sentencing hearing. The motion court found while Plea Counsel could not recall whether she discussed defenses with Movant, arson in the third degree was part of "her representation" because she argued for its application at the preliminary hearing. The motion court denied Movant's motion for post-conviction relief due to Movant's failure to meet his burden of proof.

This appeal follows.

Standard of Review

Review of a Rule 24.035 post-conviction motion denial determines only whether the findings and conclusions of the motion court are clearly erroneous. Rule 24.035(k). A motion court's findings of fact and conclusions of law are clearly erroneous when a review of the entire record leaves a definite and firm impression a mistake has been made. Reliford v. State , 186 S.W.3d 301, 304 (Mo. App. E.D. 2005). The movant bears the burden of proving his post-conviction claims by a preponderance of the evidence. Copas v. State , 15 S.W.3d 49, 54 (Mo. App. W.D. 2000). On appeal, this Court defers to the motion court's determinations of credibility, as the motion court has a better opportunity to make witness credibility judgments. Tate v. State , 461 S.W.3d 15, 24 (Mo. App. E.D. 2015).

Discussion

In his sole point, Movant contends the motion court clearly erred in denying his ineffective counsel claim because Plea Counsel failed to advise him of the possibility of proceeding to trial with a defense theory of third-degree arson, a lesser-included offense. Movant states this failure violated his rights to effective assistance of counsel and due process of law under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and Article I, sections 10 and 18(a) of the Missouri Constitution, as the failure rendered his plea involuntary, unintelligent, and unknowing.

In response, the State asserts the motion court did not clearly err because Plea Counsel acted in a competent manner and Movant failed to prove by a preponderance of the evidence he was not advised of a lesser-included offense theory. The State argues there is no prejudice from Plea Counsel's alleged failure because Movant likely would not have gone to trial as there was sufficient evidence to convict him of first-degree arson. The State also asserts a trial could have resulted in a life imprisonment sentence for Movant given his potential prior and persistent offender status, making it reasonable for Plea Counsel to advise Movant to consider a plea agreement lessening his potential punishment range.

To prevail on a claim of ineffective assistance of counsel, Movant must show: (1) his counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances, and (2) he was prejudiced. Strickland v. Washington , 466 U.S. 668, 687–88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To satisfy the first prong, Movant must establish Plea Counsel's performance fell below an objective standard of reasonableness. Id. at 688–89, 104 S.Ct. 2052. To satisfy the second prong, Movant must show there is a "reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Deck v. State , 68 S.W.3d 418, 426 (Mo. banc 2002) (quoting Strickland , 466 U.S. at 694, 104 S.Ct. 2052 ). The motion court's judgment will be affirmed if it is sustainable on any grounds. Swallow v. State , 398 S.W.3d 1, 3 (Mo. banc 2013).

1. Plea Counsel's Effectiveness

To demonstrate ineffective assistance of counsel, Movant must overcome a strong presumption Plea Counsel provided competent representation. Anderson v. State , 196 S.W.3d 28, 33 (Mo. banc 2006). To overcome this presumption, Plea Counsel's representation must have fallen below an objective standard of reasonableness. Id. Movant must identify specific acts or omissions of Plea Counsel that, given the circumstances, are not encompassed by the scope of professional competent assistance....