Webber v. State

628 S.W.3d 766

Maurice P. WEBBER, Appellant,

v.STATE of Missouri, Respondent.

WD 83591

Missouri Court of Appeals, Western District.

OPINION FILED: June 29, 2021

Motion for Rehearing and/or Transfer to Supreme Court Denied July 27, 2021

Application for Transfer Denied October 5, 2021

Damien De Loyola, Kansas City, MO, for appellant.

Shaun Mackelprang, Jefferson City, MO, for respondent.

Before Division Four: Cynthia L. Martin, Chief Judge, Presiding, Lisa White Hardwick, Judge and Thomas N. Chapman, Judge

Cynthia L. Martin, Judge

Maurice P. Webber ("Webber") appeals from a judgment denying his Rule 29.15¹ motion for post-conviction relief following an evidentiary hearing. Webber claims that the motion court clearly erred in denying the motion because his trial counsel was ineffective for failing to raise the statute of limitations as a viable defense to sexual offense charges involving a minor victim. Because Webber did not sustain his burden to prove that trial counsel's performance fell below that of a reasonably competent attorney or to prove that there is a reasonable likelihood the outcome of his case would have been different had the statute of limitations been raised as a defense at trial, we affirm.

Factual and Procedural History

In May 2015, a jury found Webber guilty of three counts of forcible rape, three counts of forcible sodomy, and one count of attempted forcible sodomy based on his participation in the September 2, 1991 rape, sodomy, and attempted sodomy of L.O. ("Victim") in Kansas City, Missouri. The trial court sentenced Webber to a total of thirty-four years’ imprisonment: twenty-four years’ imprisonment for each of the rape counts, two of the sodomy counts, and the attempted sodomy count, with the sentences to run concurrently, and ten years’ imprisonment for the remaining sodomy count, to run consecutively to the other sentences. On direct appeal, we affirmed the convictions, vacated the sentences, and remanded for the purpose of resentencing. State v. Webber , 504 S.W.3d 221 (Mo. App. W.D. 2016). We issued our mandate on December 28, 2016.

Webber prematurely filed a pro se Rule 29.15 post-conviction motion on February 27, 2017, while his remanded case was still pending. See McKay v. State , 520 S.W.3d 782, 785-86 (Mo. banc 2017) (holding that a Rule 29.15 motion is premature if filed before the final mandate in the case, including the entry of sentence). The motion court nonetheless appointed counsel to represent Webber and afforded a thirty-day extension of time to file an amended motion. On July 20, 2017, appointed counsel filed an amended motion ("Amended Motion") that alleged Webber's trial counsel was ineffective for failing to raise as a defense that the statute of limitations had expired for each of Webber's charges. Specifically, the Amended Motion contended that section 556.037, RSMo Supp. 1997, was the statute of limitations applicable to each of Webber's offenses, that this statute of limitations had expired by the time Webber was indicted, and that the outcome of Webber's case would have been different had the statute of limitations been asserted as a defense.

While the Amended Motion was pending, Webber waived jury sentencing in his remanded case, and on November 21, 2018, the trial court entered a judgment sentencing Webber to twenty years’ incarceration on each of the forcible rape and forcible sodomy counts, with the terms to run concurrently. The State dismissed the attempted forcible sodomy count. Webber did not appeal this judgment.

Accordingly, Webber's prematurely filed pro se Rule 29.15 motion was deemed filed on November 21, 2018. See Rule 29.15(b) ("If the motion is filed prematurely, such motion shall be considered as filed immediately after sentence is entered if no appeal is taken, including if no appeal is taken after any remand of the judgment or sentence following a prior appeal...."). On January 8, 2019, Webber and the State agreed that, pursuant to guidance in McKay , Webber should be allowed to file another amended motion. Webber's appointed counsel filed a second amended motion ("Second Amended Motion") the same day. The Second Amended Motion set forth the same claim of ineffective assistance of counsel as the Amended Motion.

The motion court held an evidentiary hearing on the Second Amended Motion on August 29, 2019. The parties stipulated that Victim was born on November 4, 1973, making her seventeen years old at the time of Webber's offenses on September 2, 1991. In addition, the motion court took judicial notice of the file in Webber's underlying criminal proceedings. Webber and his trial counsel testified.

Webber testified that he twice asked his trial counsel about a statute-of-limitations defense. Webber testified that trial counsel first said he would have to research the issue, and then said that the statute of limitations was not available as a defense to Webber's crimes. Webber's trial counsel testified that he was sure that he had discussed the possibility of a statute-of-limitations defense with Webber, and that he had ultimately concluded, based on his research, that the defense had no merit. Webber's trial counsel was not asked which statute of limitations he researched, or why he reached the conclusion that the statute of limitations was not an available defense.

The motion court issued its findings of fact, conclusions of law, and judgment denying the Second Amended Motion on January 23, 2020 ("Judgment"). The Judgment found that Webber had been charged with and convicted of the class A felonies of forcible rape pursuant to section 566.030, RSMo Supp. 1990, and forcible sodomy pursuant to section 566.060, RSMo Supp. 1990. The motion court concluded that the statute of limitations applicable to Webber's crimes was section 556.036.1, RSMo 1986, which provided that a prosecution for murder or any class A felony "may be commenced at any time." As such, the motion court rejected Webber's contention that section 556.037, RSMo Supp. 1997, described the statute of limitations applicable to Webber's offenses. The motion court concluded that Webber failed to sustain his burden to prove that trial counsel's performance was deficient or that he suffered prejudice from trial counsel's performance.

Webber appeals.

Standard of Review

Our review of a motion court's denial of a Rule 29.15 post-conviction motion is "limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous." Rule 29.15(k). "A judgment is clearly erroneous when, in light of the entire record, [we are] left with the definite and firm impression that a mistake has been made." Morrison v. State , 619 S.W.3d 605, 609 (Mo. App. W.D. 2021) (quoting Shockley v. State , 579 S.W.3d 881, 892 (Mo. banc 2019) ). "Even if the stated reason for a motion court's ruling is incorrect, this Court will affirm the judgment if it is sustainable on other grounds." Dorsey v. State , 448 S.W.3d 276, 282 (Mo. banc 2014) (citing Swallow v. State , 398 S.W.3d 1, 3 (Mo. banc 2013) ).

Analysis

Webber argues in a single point on appeal that the motion court clearly erred when it denied the Second Amended Motion because section 556.037, RSMo Supp. 1997, and not section 556.036.1, RSMo 1986, was the statute of limitations applicable to the crimes Webber committed. According to Webber, if section 556.037, RSMo Supp. 1997, applied to his offenses, the statute of limitations expired on November 4, 2001, ten years after Victim turned eighteen years old, and well before the State charged Webber via indictment on August 22, 2014. Because the statute of limitations would have afforded Webber with a viable defense, Webber argues that trial counsel was ineffective for failing to raise the defense and that Webber suffered prejudice as a result.

We need not determine whether the motion court committed clear error when it reached the legal conclusion that section 556.036.1, RSMo 1986, applied to Webber's offenses instead of section 556.037, RSMo Supp. 1997. The motion court's Judgment denying the Second Amended Motion can be sustained on other grounds established by the record. Dorsey , 448 S.W.3d at 282.

The standard for proving ineffective assistance of counsel

The standard for a claim of ineffective assistance of counsel was announced in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A claim of ineffective assistance of counsel requires the movant to prove by a preponderance of the evidence both that: (1) "his or her counsel failed to exercise the level of skill and diligence that a reasonably competent counsel would in a similar situation"; and (2) "he or she was prejudiced by that failure." Kelley v. State , 618 S.W.3d 722, 731 (Mo. App. W.D. 2021) (quoting Johnson v. State , 406 S.W.3d 892, 898-99 (Mo. banc 2013) ). The performance prong requires the movant to overcome the strong presumption that his trial counsel's actions were reasonable and effective. Id. The prejudice prong requires the movant to establish that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 732 (quoting Johnson , 406 S.W.3d at 898-99 ). If the movant fails to establish either the performance prong or the prejudice prong, we need not address or consider the other.

State v. Dawson , 611 S.W.3d 761, 769 (Mo. App. W.D. 2020).

Webber's claim of ineffective assistance of counsel would require us to determine that section 556.037, RSMo Supp. 1997, describes the statute of limitations applicable to his offenses, and not section 556.036.1, RSMo 1986, as the motion court found. Whether a statute of limitations applies in a criminal case is a question of law. State v. Donelson , 343 S.W.3d 729, 733 (Mo. App. E.D. 2011) (citing State v. Maples , 306 S.W.3d 153, 155 (Mo. App. W.D. 2010) ).

Section 556.036, RSMo 1986, was in effect on September 2, 1991, the date Webber's offenses were committed. The statute...