Tinsley v. State

685 S.W.3d 56

Terrence Tyrell TINSLEY, Jr., Appellant,

v.STATE of Missouri, Respondent.

No. SD 38095

Missouri Court of Appeals, Southern District, In Division.

Filed: March 4, 2024

APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY, Honorable Gayle L. Crane, Judge

ATTORNEY FOR APPELLANT – ANNETTE M. WALLACE, Kansas City, MO.

ATTORNEY FOR RESPONDENT – ALEX D. BEEZLEY, Jefferson City, MO.

MARY W. SHEFFIELD, J.

Terrence Tyrell Tinsley, Jr. appeals the denial of his Rule 24.035 motion for postconviction relief after an evidentiary hearing.¹ In a single point, Tinsley asserts plea counsel was ineffective in failing to investigate and depose a co-defendant ("J.C."). Finding no merit in Tinsley’s point, we affirm the motion court’s denial of Tinsley’s motion for post-conviction relief.

Background

[1, 2] Tinsley was charged with (Count 1) robbery in the first degree, (Count 2) armed criminal action, and (Count 3) resisting arrest, as a prior and persistent offender. Following a hearing, the plea court found beyond a reasonable doubt that Tinsley was a prior and persistent offender and would be sentenced as such if convicted at trial. That same day, Tinsley entered a plea agreement in which he agreed to enter an Alford guilty plea on Counts 1 and 2, and the State agreed to dismiss Count 3.²

At the plea hearing, Tinsley testified he understood the plea agreement, that no one was forcing him to plead guilty, and that he was pleading guilty on his behalf, "with a free mind[.]" The plea court reviewed Tinsley’s rights to trial, including his right to call witnesses to testify on his behalf. Tinsley acknowledged he would be forfeiting those rights by pleading guilty and indicated he believed a jury verdict might result in a greater punishment than the punishment imposed by the court pursuant to the plea agreement.³

Tinsley was also asked about plea counsel’s representation. Tinsley informed the plea court he had no complaints about the representation of his plea counsel, that plea counsel had done everything he had asked, that plea counsel had not done anything he had asked him not to do, that he had sufficient time to meet with plea counsel, and that he was happy with plea counsel’s performance.

The State recited the factual basis for the guilty plea. According to the State, the evidence would show that Tinsley and a codefendant held guns to the heads of two people (the "Victims") and threatened to kill Victims if they did not comply. One of the Victims dropped a wallet and another co-defendant picked it up. Tinsley and the co-defendants then ran to a car and left the scene with Tinsley driving. Victims followed the car and noticed at least two guns were being waved out the windows of Tinsley’s car. Victims eventually called the police, and the police later arrested Tinsley, who was found hiding in a shed after he crashed the car. In the shed, police also found a gun within arm’s reach of where Tinsley was found. Tinsley also signed a written plea agreement reiterating that he was freely, knowingly, and voluntarily agreeing to the plea agreement.

The plea court found Tinsley’s guilty plea was made voluntarily and intelligently with full understanding of the charges, the consequences of pleading guilty, and his rights regarding a jury trial. During his sentencing hearing, Tinsley again affirmed he had no complaints about plea counsel’s representation. Tinsley was sentenced to consecutive sentences of ten years in prison for robbery and three years in prison for armed criminal action.

Tinsley timely filed his pro se motion and amended motion for post-conviction relief.⁴ The amended motion claimed, in relevant part, "Tinsley was denied the effective assistance of counsel … by plea counsel’s failure to investigate [J.C.]." Tinsley claimed if the case had gone to trial, J.C. would have testified that Tinsley did not intend to rob Victims and that no guns were drawn during the incident. According to Tinsley, had plea counsel investigated and deposed J.C., plea counsel would have discovered that J.C.’s testimony supported Tinsley’s planned trial testimony that he did not intend to rob Victims.

The motion court held an evidentiary hearing on the post-conviction motion. Tinsley, J.C., and plea counsel testified. J.C., who is Tinsley’s brother, testified he and Tinsley went to buy drugs from Victims. Unbeknownst to Tinsley, J.C. stole a bottle of Xanax during the drug transaction. J.C. claimed Victims began to follow them, so he and Tinsley flashed guns out of the car windows in an attempt to stop the pursuit. J.C. claimed this was the only time guns were displayed.

Tinsley testified he had contacted Victims in order to buy drugs. According to Tinsley, J.C. went to Victims’ car to get the drugs. Upon his return to Tinsley’s car, J.C. told Tinsley about the stolen Xanax bottle. Tinsley claimed that while Victims pursued them, it was J.C. and another co-defendant, not Tinsley, who flashed guns out of the car’s windows. Tinsley admitted he attempted to hide one of the guns after he got out of his car.

Regarding plea counsel’s representation, Tinsley testified he had asked plea counsel to contact J.C. but that plea counsel had not tried to do so until shortly before trial was scheduled to begin. Tinsley did not think plea counsel had ever spoken to J.C. Tinsley claimed he would have gone to trial had trial counsel deposed J.C. or had J.C. been available to testify at trial.

Plea counsel testified he attempted to locate J.C. but was unsuccessful. Plea counsel had spoken with J.C.’s relatives, who gave him the name of the building where J.C. was detained. Plea counsel was given a phone number for J.C.’s housing unit, but when he called that number, the person who answered did not know who J.C. was. Plea counsel also contacted J.C.’s juvenile court attorney, but that attorney did not have any information to help him locate J.C.

Plea counsel also expressed his concerns about calling J.C. as a witness. According to plea counsel, he generally did not call co-defendants as witnesses at trial because jurors often do not believe co-defendants who testify to exonerate a defendant and he did not want to take the risk of Tinsley being impeached or discredited if J.C.’s testimony was not consistent with Tinsley’s.

The motion court denied Tinsley’s amended motion. In its order, it found plea counsel’s testimony to be credible and Tinsley’s and J.C.’s testimony to not be credible. The motion court further found Tinsley’s responses to the plea inquiry showed his plea was knowing, intelligent, and voluntary, and emphasized that at the plea hearing, Tinsley did not indicate there was anything else he wanted plea counsel to do. Furthermore, the motion court found plea counsel adequately investigated J.C. by speaking with multiple individuals to try to locate J.C., and had a reasonable trial strategy for not calling J.C. as a witness, even if he could have located him.

Tinsley appeals from that order. In a single point, Tinsley argues the motion court erred in denying his amended motion for post-conviction relief because plea counsel was ineffective in failing to investigate and depose J.C.

Standard of Review

[3–6] On appeal, review of a denial of a Rule 24.035 post-conviction relief motion is "limited to a determination of whether the findings and conclusions of the [motion] court are clearly erroneous." Johnson v. State, 580 S.W.3d 895, 900 (Mo. banc 2019) (quoting Latham v. State, 554 S.W.3d 397, 401 (Mo. banc 2018)). A motion court’s findings and conclusions are clearly erroneous if this Court is left with the definite and firm impression that a mistake has been made. McFadden v. State, 619 S.W.3d 434, 445 (Mo. banc 2020). The motion court may believe or disbelieve any portion of testimony. Borneman v. State, 554 S.W.3d 535, 538 (Mo. App. S.D. 2018). We will defer to the motion court on determinations of credibility. Id. The movant bears the burden of demonstrating clear error by a preponderance of the evidence. Cooper v. State, 356 S.W.3d 148, 152 (Mo. banc 2011); Rule 24.035(i).

Discussion

[7] To prevail on a claim of ineffective assistance of counsel, a movant must show by a preponderance of the evidence: (1) that counsel’s performance fell below an objective standard of reasonableness; and (2) that counsel’s deficient performance actually prejudiced the movant. Hefley v. State, 626 S.W.3d 244, 249 (Mo. banc 2021). "To establish prejudice in a guilty-plea case, the movant must prove that he would not have pleaded guilty and would have demanded a trial, but for counsel’s errors." Easley v. State, 623 S.W.3d 211, 216 (Mo. App. S.D. 2021).

[8–10] Furthermore, "[a] claim of ineffective assistance of counsel is immaterial except to the extent it impinges the voluntariness and knowledge with which the plea was made." Id. "[T]he essential inquiry in a guilty plea proceeding is whether the plea was knowing and voluntary." Id. (quoting Martin v. State, 568 S.W.3d 78, 81 (Mo. App. S.D. 2019)). "A guilty plea generally waives any future complaint the defendant might have about trial counsel’s failure to investigate his case." Gooch v. State, 353 S.W.3d 662, 666 (Mo. App. S.D. 2011) (quoting Simmons v. State, 100 S.W.3d 143, 146 (Mo. App. E.D. 2003)). Thus, because Tinsley pleaded guilty, our review of his claim regarding trial counsel’s failure to depose J.C. is limited to whether it affected the voluntariness and knowledge with which Tinsley entered his guilty plea.

[11] Tinsley’s argument that the motion court erred in denying his amended motion for post-conviction relief fails for multiple reasons. First, Tinsley does not explain how plea counsel’s alleged failure to investigate J.C. affected the voluntariness and knowledge with which he entered his guilty plea. Instead of addressing how it impacted his decision to plead guilty, Tinsley focuses entirely on whether plea counsel had a reasonable trial strategy in not calling J.C. as a witness:

The motion court

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