Romell Bates v. State of Missouri , 421 S.W.3d 547 ( 2014 )

In the Missouri Court of Appeals
Eastern District
DIVISION TWO
ROMELL BATES, ) No.ED100153
)
Appellant, ) Appeal from the Circuit Court
) of St. Louis County
vs. )
) Hon. Ellen L. Siwak
STATE OF MISSOURI, )
) Filed:
Respondent. ) February 25, 2014
Romell Bates appeals the judgment of the motion court denying his Rule 24.035
motion for post-conviction relief without an evidentiary hearing. Bates argues that his
guilty pleas had no factual basis, violated his right to be free from double jeopardy and
were involuntary due to ineffective assistance of counsel. We affirm.
Bates was charged with robbery in the first degree, assault in the first degree,
unlawful use of a weapon, three counts of armed criminal action and two stealing counts.
Bates pled guilty to all counts and was sentenced to a total of eighteen years of
imprisonment. After sentencing, Bates filed an amended Rule 24.035 motion for post-
conviction relief, asserting that (1) the facts he admitted at his guilty plea hearing did not
constitute both first-degree assault and unlawful use of a weapon and, therefore,
accepting his pleas on those counts without a factual basis violated his right to due
process and being sentenced on both counts for the same conduct violated his right to be
free from double jeopardy; (2) plea counsel was ineffective because she advised him his
sentence would be twelve years and he received eighteen years instead; and (3) plea
counsel was ineffective because she failed to call witnesses and introduce other evidence
related to Bates’s Attention-Deficit/Hyperactivity Disorder (“ADHD”), social history and
learning difficulties.
The motion court denied Bates’s request for an evidentiary hearing and entered
findings of fact and conclusions of law. It found that (1) first-degree assault and unlawful
use of a weapon are crimes with distinct elements and, therefore, a defendant may be
convicted of both for the same conduct and, moreover, Bates acknowledged that the facts
recited by the State at the plea hearing were substantially correct; (2) the record refuted
Bates’s claim regarding plea counsel’s sentencing advice because Bates acknowledged
that the plea court was not bound by any sentencing recommendation, was aware that the
court could impose more or less time than was recommended and also admitted that no
one promised him what sentence he would receive; and (3) Bates’s claim regarding plea
counsel’s failure to call witnesses at sentencing was also refuted by the record. This
appeal follows.
Our review of the motion court’s findings of fact and conclusions of law in
denying a Rule 24.035 motion for post-conviction relief is limited to a determination of
whether the findings and conclusions are clearly erroneous. Rule 24.035(k); Worthington
v. State, 166 S.W.3d 566, 572 (Mo. banc 2005). A motion court’s findings and
conclusions are clearly erroneous only if, after a full review of the record, we are left with
a definite and firm impression that a mistake has been made. Worthington, 166 S.W.3d
at 572. To obtain an evidentiary hearing on a post-conviction motion the movant must
raise facts, not conclusions, warranting relief, the allegations must not be refuted by the
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record and the claims must have resulted in prejudice to the movant. Roberts v. State,
276 S.W.3d 833, 835 (Mo. banc 2009).
In Point I, Bates argues that the first-degree assault and unlawful use of a weapon
charges were based on the same conduct. Bates claims his rights to due process and to be
free from double jeopardy were violated because there was an insufficient factual basis
for his guilty pleas to those charges. We disagree.
The indictment charged Bates and his co-defendants (collectively “the
Defendants”) with assault in the first degree under Section 565.050. The indictment
alleged—and Bates agreed at the plea hearing that the State would have proven at trial—
that the Defendants shot at the victim, which was a substantial step toward the crime of
attempting to kill or cause serious injury to the victim and which was done for the
purpose of committing assault. The indictment also charged them with unlawful use of a
weapon under Section 571.030.1(3). It alleged—and again Bates agreed the State would
have proven—that the Defendants shot a firearm into a dwelling house. In his post-
conviction motion and here on appeal, Bates argues that only one shot was fired at the
hotel window in which the victim was standing. He contends that one shot cannot
constitute both the crime of assault and the crime of unlawful use of a weapon without
violating double jeopardy protections. But the police report Bates cites in support of the
fact that there was only one shot does not appear to have been part of the record before
the motion court and is not part of the record on appeal.
Even assuming that Bates’s convictions were based on a single shot fired into the
dwelling house and at the victim, there was no double jeopardy violation. “The United
States Supreme Court has determined that the federal double jeopardy clause protects
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defendants not only from successive prosecutions for the same offense after either an
acquittal or a conviction, but also from multiple punishments for the same offense.
Typically, to determine whether multiple charges constitute the same offense, courts
consider whether each offense necessitates proof of a fact which the other does not.”
State v. Liberty, 370 S.W.3d 537, 546 (Mo. banc 2012) (citing Blockburger v. United
States, 284 U.S. 299, 304 (1932) (other internal citations and quotation marks omitted));
see also State v. Burns, 877 S.W.2d 111, 112 (Mo. banc 1994) (Blockburger’s “same-
element” test appears to have been codified in Sections 556.041 and 556.046.1(1)).
Each of the offenses in this case has an element different from the other, and they
are separate offenses. “A person commits the crime of unlawful use of weapons if he or
she knowingly . . . [d]ischarges or shoots a firearm into a dwelling house.” Section
571.030.1(3). “A person commits the crime of assault in the first degree if he attempts to
kill or knowingly causes or attempts to cause serious physical injury to another person.”
Section 565.050.1. Thus, one statute requires proof that the shot was fired at a dwelling
house and the other requires proof that the shot was fired in attempt to injure another
person. These statutes criminalize two different kinds of conduct—shooting at a
dwelling and trying to kill or injure another person. Thus, even when a single shot is
fired at a person standing in a dwelling house, two crimes have been committed. In Yates
v. State, we concluded that a single shot fired from a car and into a house could support
conviction under two subsections of the unlawful use of a weapon statute. 158 S.W.3d
798, 802 (Mo. App. E.D. 2005). Because one subsection required proof that the firearm
was shot into a dwelling house and the other subsection required proof that the firearm
was shot from a motor vehicle, they were different offenses and there was no double
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jeopardy violation. Id. (citing State v. Gordon, 948 S.W.2d 673, 675 (Mo. App.
E.D.1997) (no double jeopardy violation for prosecution of sodomy and incest based on
same conduct because elements of each offense are different)). Likewise, in this case,
there is no double jeopardy violation.
Bates relies heavily on State v. Sloan, in which one shot was fired into a trailer
and at the victim. 786 S.W.2d 919, 920-21 (Mo. App. W.D. 1990). The defendant was
convicted of assault in the first degree and unlawful use of a weapon. Id. at 920. On
appeal, the defendant raised a double jeopardy issue, claiming that unlawful use of
weapon was a lesser-included offense of the assault charge and, therefore, he could not be
convicted of both. Id. at 923. The State conceded that “based on the facts of the instant
case” there was a double jeopardy violation. Id. The Court “therefore reverses Sloan’s
conviction for unlawful use of a weapon while affirming his conviction for assault in the
first degree.” Id. The Court did not provide any analysis under double jeopardy
principles or otherwise explain how unlawful use of a weapon was a lesser included
offense of first degree assault in that case, except to cite to State v. Williams, seemingly
for the proposition that a conviction may not be returned on both an inclusive offense and
the included offense. 1 784 S.W.2d 276, 280-81 (Mo. App. E.D. 1989).
While we take no issue with the Sloan court’s handling of that case given the
State’s concession, we are hesitant to base our decision here on the one-sentence
conclusion reached in that case. Sloan does not contain the double jeopardy analysis
under Blockburger and its progeny that we must apply to the facts of this case—a case in
which there is no concession by the State that a double jeopardy violation has occurred.
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The court in Williams concluded that forcible stealing was a lesser included offense of first degree
robbery and reversed the stealing conviction.
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We cannot assume that had the Sloan court conducted that analysis absent the State’s
concession, it would have reached the same conclusion. Having conducted that analysis
ourselves, we conclude these crimes had separate elements and there was no double
jeopardy violation.
Bates also discusses State v. Mayo, which was cited by the motion court in its
findings. 829 S.W.2d 474 (Mo. App. E.D. 1992). In Mayo, the defendant was convicted
of unlawful use of a weapon, assault in the first degree and armed criminal action. Id. at
475. On appeal, this Court “summarily” denied the claim that conviction on all three
charges was a violation of double jeopardy and provided only a brief explanation:
The argument is without merit where the three offenses have different
elements all of which were proven. The state may, in a single proceeding,
charge and convict a defendant under separate statutes for the same
conduct if the legislature has expressly authorized cumulative punishments
under each statute. This is true even if those statutes may be construed to
proscribe the same conduct under the Blockburger test.
Id. (internal citations and quotation marks omitted). Bates suggests that the Court’s
conclusion could have been based on the fact that, according to the opinion in the first
Mayo appeal, the defendant fired one shot at two officers, thereby providing a basis for
two offenses and distinguishing it from this case. See State v. Mayo, 784 S.W.2d 897
(Mo. App. E.D. 1990). That suggestion is pure speculation as the Court did not address
those facts in its brief discussion of double jeopardy in the second appeal.
We also find that there was a sufficient factual basis to support Bates’s guilty
pleas for each offense as required by Rule 24.02(e). The indictment laid out all of the
elements of the crimes; Bates acknowledged that he understood the charges; the State
indicated that it would prove all of the elements of both offenses, including that the
Defendants shot at the victim in an attempt to kill or seriously injure him and shot at a
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dwelling; Bates acknowledged that those facts were substantially true and correct; and
Bates stated that he pled guilty to each charge because he was, in fact, guilty. This is
more than enough to establish the necessary factual basis. See Wilder v. State, 301
S.W.3d 122, 130 (Mo. App. E.D. 2010) (factual basis established where indictment sets
forth elements, defendant understands nature of charges and defendant pleads guilty to
each).
In sum, we find no clear error in the motion court’s findings and conclusions on
this claim. This record refutes Bates’s claim that his convictions were not supported by a
factual basis or violated his right to be free from double jeopardy, and he is not entitled to
an evidentiary hearing on that claim. Point I is denied.
In Points II and III, Bates contends that his counsel was ineffective in advising
him about and handling his sentencing. “To obtain an evidentiary hearing for claims
related to the ineffective assistance of counsel, the movant must allege facts, not refuted
by the record, showing that counsel’s performance did not conform to the degree of skill,
care, and diligence of a reasonably competent attorney and that the movant was thereby
prejudiced.” Morrow v. State, 21 S.W.3d 819, 823 (Mo. banc 2000) (internal citations
omitted). There is a strong presumption that counsel’s strategy was reasonable.
Strickland v. Washington, 466 U.S. 668, 689 (1984). “To demonstrate prejudice, the
facts must show a reasonable probability that, but for counsel’s unprofessional errors, the
results of the proceedings would have been different. We presume that counsel’s conduct
was reasonable and effective, and that any challenged action was part of counsel’s
reasonable trial strategy.” McKee v. State, 336 S.W.3d 151, 153-54 (Mo. App. E.D.
2011).
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Bates claims that counsel advised him he would be sentenced to twelve years if he
pled guilty and, instead, he received eighteen. He argues that he would not have pled
guilty if he had known the sentence would be eighteen years and that he is also
prejudiced by having to serve a longer sentence. When a movant claims to have pled
guilty based on a mistaken belief about the sentence, the test is whether a reasonable
basis exists in the record for such belief. Cope v. State, 989 S.W.2d 265, 266 (Mo. App.
E.D. 1999). A “plea does not become involuntary because a movant expects a lighter
sentence than that actually received,” and “mere prediction or advice of counsel does not
constitute legal coercion nor render a guilty plea involuntary.” Id.
Here, the record refutes Bates’s claim that counsel’s advice rendered his plea
involuntary. Bates said he understood that because he refused the plea bargain and this
was an open plea, the court could impose any sentence it thought appropriate, regardless
of recommendations. Bates confirmed that he was pleading guilty of his own free will.
He agreed that no threats or promises had been made to induce him to plead guilty and,
specifically, that no one had promised him what sentence he would receive. Bates argues
that we cannot rely on this record to refute his allegations because his ADHD caused him
to be confused and scared when he gave those answers at the plea hearing. But the record
refutes that argument as well: Bates told the court he understood everything that was
going on and, when asked directly if there was anything that would make it hard for
Bates to understand or would confuse him about the proceedings, he said no. If he was
scared or confused because of his ADHD or for any other reason, he could have told the
judge about it then.
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Bates cites several cases for the proposition that he is entitled to a hearing simply
by alleging that he received erroneous advice about his sentence. In each of those cases,
the movant alleged that counsel made an affirmative misrepresentation about the
consequences of the sentence, which is quite different than the bad advice or unfulfilled
prediction that Bates alleges he received here. See Fogle v. State, 124 S.W.3d 509 (Mo.
App. S.D. 2004) (State conceded that allegations of counsel’s misinformation as to
whether new sentence under plea agreement would run concurrent with existing sentence
required hearing); Hao v. State, 67 S.W.3d 661 (Mo. App. E.D. 2002) (State conceded
that allegation of counsel’s misstatements about percentage of sentence movant would
serve warranted evidentiary hearing); Beal v. State, 51 S.W.3d 109 (Mo. App. W.D.
2001) (movant alleged counsel misinformed him about applicability of eighty-five
percent rule, which counsel admitted in motion court). Also, the errors by counsel in
those cases were not refuted by the records in those cases. Here, Bates’s alleged reliance
on counsel’s advice that he would receive twelve years is refuted by the record
demonstrating that Bates knew the length of his sentence was completely at the judge’s
discretion and that no particular sentence was promised. The record demonstrates that
Bates had no reasonable basis to expect any particular sentence and, therefore, refutes his
claim that counsel’s advice rendered his plea involuntary.
Bates also argues that counsel was ineffective for failing to call two witnesses and
introduce certain records, which Bates claims would have established his social history
and his ADHD diagnosis and caused the court to impose a more lenient sentence. There
is a strong presumption that counsel’s decision not to call a witness at sentencing is a
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matter of reasonable trial strategy and will not support an ineffective assistance of
counsel claim. See Pittman v. State, 331 S.W.3d 361, 366 (Mo. App. W.D. 2011).
At sentencing, the State recommended a twenty-year sentence, and the sentencing
assessment recommended between sixteen and thirty years. Bates’s counsel asked the
court to consider a reduced sentence of twelve years because Bates was not the principal
actor (his co-defendants had actually pulled the trigger and drove the getaway car).
Counsel also argued that Bates had only a single prior felony, had never been to prison,
was only twenty-one, had been in a special education program and had a family history of
mental illness and substance abuse. Counsel further pointed out Bates’s below-average
risk score due to his age and educational level. Bates himself addressed the court as well.
He told the court he was living on the streets and had no one to help him: his mother was
also on the streets, his father was not in his life, his brother was in prison and his
grandmother was dead. Bates said he did not know any better growing up.
The court expressed concern about the seriousness of the charges against Bates,
the danger his crimes posed to the community and the fact that he committed them while
on probation. The court explained that, nevertheless, the sentence would be reduced from
the recommended twenty years based on the arguments of counsel. The reduction was
not as much as counsel requested, the court elaborated, because Bates was on probation at
the time of the crime and because of his prior conviction.
This record refutes Bates’s claim in multiple ways. First, it demonstrates that the
court was already aware of Bates’s family history and educational level. Further
testimony on those matters could be considered cumulative, and failure to put on
cumulative witnesses is not ineffective assistance of counsel. See Deck v. State, 381
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S.W.3d 339, 351-52 (Mo. banc 2012). Second, the record demonstrates that even if the
court had been aware of the additional fact of Bates’s ADHD diagnosis, it is not likely
that information would have resulted in a different sentence. The court was clear that its
main concern was the seriousness of the crime and the fact that it occurred while Bates
was on probation. The court expressly noted that it was persuaded by counsel’s
arguments to reduce the sentence by two years, which included arguments regarding his
background and his role in the crime. It is doubtful that Bates’s ADHD diagnosis would
have outweighed the court’s concerns about the nature of the crime and resulted in an
even further reduction in the sentence when similar factors already before the court did
not. Moreover, to the extent counsel could have focused more on Bates’s background
over his role in the crime, that choice in pursuing one trial strategy over another does not
amount to ineffective assistance in this case.
In sum, we find no clear error in the motion court’s findings that the record
refutes Bates’s ineffective assistance of counsel claims and that he is not entitled to an
evidentiary hearing. Points II and III are denied.
The judgment of the motion court is affirmed.
ROBERT G. DOWD, JR., Judge
Lawrence E. Mooney, P.J. and
Sherri B. Sullivan, J., concur.
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