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Date: 01-05-2018

Case Style:

CHRISTOPHER L. JONES v. STATE OF MISSOURI

Case Number: WD80191

Judge: Cynthia L. Martin

Court: Missouri Court of Appeals Western District

Plaintiff's Attorney: Daniel N. McPherson

Defendant's Attorney: Natalie H. Hoge

Description: On October 23, 2015, Jones pled guilty to the Class C felony of tampering in the
first degree. After finding that Jones entered his plea knowingly and voluntarily, the trial
court accepted the plea and ordered a sentencing assessment report. A sentencing hearing
was held on December 22, 2015.
At the sentencing hearing, defense counsel highlighted Jones's newfound sobriety
since entering custody, and requested a three-year sentence with Jones possibly being
assessed for drug court upon release. Jones presented his own statement accepting
responsibility for his crime. The trial court noted Jones's prior history of drug use and
criminal activity. The trial court specifically admonished Jones for using drugs while out
on bond. The trial court expressed concern that Jones had continued to use drugs despite
being given opportunities to succeed. The trial court sentenced Jones to a seven-year term
of imprisonment.
The trial court then advised Jones of his rights under Rule 24.035 to challenge his
conviction and sentence. In response to questions from the trial court, Jones testified that
there was nothing counsel did that Jones did not want him to do; there was nothing counsel
failed to do that Jones wanted him to do; there were no witnesses to whom Jones wanted
counsel to talk; there was no evidence Jones wanted counsel to present; and Jones was
completely satisfied with counsel's assistance, even in light of the trial court's sentencing.
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Based on Jones's testimony, the trial court held that there was no probable cause to find
that Jones received ineffective assistance of counsel.
Jones thereafter filed a pro se Rule 24.035 motion. Appointed counsel filed an
Amended Motion to Vacate, Set Aside, or Correct Judgment and Sentence on May 24,
2016 ("Amended Motion"). The Amended Motion argued that Jones received ineffective
assistance of counsel because counsel did not investigate or present testimony from Jones's
girlfriend and father at the sentencing hearing. According to the Amended Motion, these
witnesses were present in the courtroom on the day of sentencing, and were prepared to
provide mitigating testimony that would have resulted in a reasonable probability that
Jones would have received a lesser sentence.
The motion court denied Jones's Amended Motion without an evidentiary hearing
and entered findings of fact, conclusions of law, and a judgment ("Judgment"). The motion
court held that Jones's claim was refuted by the record based on his sentencing hearing
testimony.
This timely appeal follows.
Standard of Review
Appellate review of the denial of a post-conviction relief motion is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 24.035(k); Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009). Findings and conclusions are clearly erroneous only if, after a review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made. Roberts, 276 S.W.3d at 835. The movant bears the burden of showing by a preponderance of the evidence that the motion court clearly erred. Id.

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Dunlap v. State, 452 S.W.3d 257, 261-62 (Mo. App. W.D. 2015). "The motion court's
findings of fact and conclusions of law are presumed to be correct." Hays v. State, 360
S.W.3d 304, 309 (Mo. App. W.D. 2012) (quoting Edwards v. State, 200 S.W.3d 500, 509
(Mo. banc 2006)).
Analysis
To sustain his burden to prove that he received ineffective assistance of counsel,
Jones "must prove by a preponderance of the evidence that: (1) counsel failed to exercise
the level of skill and diligence of a reasonably competent attorney; and (2) that he was
thereby prejudiced." Dunlap, 452 S.W.3d at 262 (citing Zink v. State, 278 S.W.3d 170,
175 (Mo. banc 2009)). "A movant claiming ineffective assistance must overcome a strong
presumption that counsel provided competent representation." Id. (citing Worthington v.
State, 166 S.W.3d 566, 573 (Mo. banc 2005)). "To prove prejudice the movant must
demonstrate that 'there is a reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different.'" Id. (quoting Strickland v.
Washington, 466 U.S. 668, 694 (1984)). Because a movant must establish both deficient
performance by counsel and prejudice, if a movant fails to establish one prong, a court need
not address or consider the other. O'Neal v. State, 766 S.W.2d 91, 92 (Mo. banc 1989).
Jones raises three points on appeal. In Point I, Jones argues that the motion court
erred in denying his Amended Motion because the motion court applied an incorrect
standard to determine whether he was prejudiced by his counsel's deficient performance
during sentencing. In Point II, Jones contends that the motion court erroneously denied his
Amended Motion without an evidentiary hearing because his testimony during the
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sentencing hearing expressing satisfaction with counsel applied only to whether his plea
was voluntary. In Point III, Jones alternatively contends that the motion court erroneously
denied his Amended Motion without an evidentiary hearing because the record did not
conclusively refute his claim of ineffective assistance of counsel during sentencing.
Point One
Jones's first point on appeal implicates Strickland's prejudice prong. Jones argues
that the motion court applied an incorrect standard to determine whether he was prejudiced
by counsel's deficient performance during sentencing. We disagree.
As noted, to establish the Strickland prejudice prong, a movant must demonstrate
that "there is a reasonable probability that, but for counsel's unprofessional errors, the result
of the proceeding would have been different." Strickland, 466 U.S. at 694. Applied to
claims of ineffective assistance of counsel at sentencing, a movant must "show that but for
sentencing counsel's errors . . . the result of the sentencing would have been different,
specifically, that his sentence would have been lower." Dunlap, 452 S.W.3d at 262 (citing
Cherco v. State, 309 S.W.3d 819, 827, 829-30 (Mo. App. W.D. 2010)).
Here, the motion court's Judgment, in generally addressing Jones's burden to prove
ineffective assistance of counsel, stated that "following a guilty plea, any claim of
ineffective assistance of counsel is immaterial except to the extent it impinges upon the
voluntariness and knowledge with which the plea was made." Though true with respect to
the majority of post-conviction claims following a guilty plea, this standard cannot be read
to preclude the assertion of a cognizable claim that counsel's deficiencies detrimentally
impacted the length of the sentence imposed, while not affecting the knowing and
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voluntary nature of the guilty plea. Cherco, 309 S.W.3d at 829-30. Here, Jones does not
argue that his decision to plead guilty was involuntary or unknowing. Instead, the
Amended Motion argues only that counsel's failure to investigate and present mitigation
testimony during the sentencing hearing detrimentally impacted the length of his sentence.
The motion court's stated standard for assessing prejudice is not applicable to this scenario.
We addressed a similar issue in Dunlap. The Rule 24.035 movant in Dunlap alleged
that counsel was ineffective for failing to investigate and present mitigation evidence at
sentencing. Id. at 258. The motion court denied the motion, observing that "the question
is whether the constitutionally ineffective performance affected the outcome of the plea
process, not the outcome of the sentencing phase of the proceedings." Id. at 261. The
motion court then found that "[m]ovant offer[ed] no proof or persuasive argument that any
decision his attorney made with respect to sentencing . . . would have affected his decision
to plead guilty." Id. The court in Dunlap held that the motion court applied an incorrect
standard to deny the movant's motion. Id. at 262. We reversed and remanded the matter
to the motion court "with instructions that it apply the appropriate standard and issue
findings of fact and conclusions of law in accordance with that standard." Id.
The result in Dunlap does not require reversal of the motion court's Judgment in this
case. Though the motion court articulated the wrong standard for assessing prejudice
where a claim of ineffective assistance concedes the voluntariness of a guilty plea and is
directed only to the length of an imposed sentence, the motion court did not rely on that
standard to deny the Amended Motion. The Judgment instead focused exclusively on
7
Jones's failure to establish Strickland's performance prong. The motion court found as
follows:
At the sentencing hearing Movant was specifically asked about his plea counsel, and expressed satisfaction in his services. . . . [T]he Movant was questioned under oath as follows:

The Court: Is there anything he (plea counsel) did in your case you didn't want him to do?

Movant: No.

The Court: Anything he did not do that you did want him to do?

Movant: No.

The Court: Any witnesses you wanted him to talk to?

Movant: No.

The Court: Any evidence you wanted him to present?

Movant: No.

The Court: Are you completely satisfied with the help he gave you, whether or not you're happy with what I've done here today?

Movant: Yes, sir.

The Court: Anything else you want to tell me about his representation of you?

Movant: No, sir.

Given these responses, Movant's claim is completely without merit. Movant's own words demonstrate this.

The motion court thus denied the Amended Motion because Jones's sentencing
hearing testimony refuted his claim that counsel's performance was deficient. Having
found that the record refuted Jones's ability to establish Strickland's performance prong,
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the Judgment was not required to alternatively address whether Jones was prejudiced by
counsel's allegedly deficient performance during sentencing. O'Neal, 766 S.W.2d at 92
(holding that a court need only find that one of the required Strickland prongs cannot be
established). This case is thus distinguishable from Dunlap, where the motion court's
judgment expressly applied the erroneously stated prejudice standard to deny the movant's
motion. Thus, the Judgment's reference to an erroneous prejudice standard does not
warrant reversal as the motion court did not rely on the erroneous standard to deny the
Amended Motion.
Point One is denied.
Points Two and Three
Jones's second and third points on appeal claim error in denying the Amended
Motion without an evidentiary hearing. "To be entitled to an evidentiary hearing on a
motion for post-conviction relief: (1) the movant must allege facts--not conclusions-
which, if true, warrant relief; (2) the facts alleged must establish that the movant's case was
prejudiced; and (3) the facts must not be refuted by the record." Bogard v. State, 356
S.W.3d 850, 853 (Mo. App. W.D. 2012) (quoting Finley v. State, 321 S.W.3d 368, 371
(Mo. App. W.D. 2010)). We have already explained that in denying the Amended Motion
without an evidentiary hearing, the motion court found that Jones's claim that counsel's
performance was deficient, the first Strickland prong, was refuted by the record.
Jones's Amended Motion claimed that counsel's performance was deficient because
counsel should have investigated and presented testimony from Jones's girlfriend and
father during the sentencing hearing. In order to establish constitutionally deficient
9
performance warranting relief, Jones "must demonstrate that trial counsel's failure to
[investigate and] call character witnesses at his sentencing hearing fell below an objective
standard of reasonableness." Cherco, 309 S.W.3d at 825.
To succeed on a claim of ineffective assistance of counsel for failure to investigate
a witness, Jones was required to show: "(1) that counsel's failure to investigate was
unreasonable and (2) that [he] was prejudiced as a result of counsel's unreasonable failure
to investigate." Barton v. State, 432 S.W.3d 741, 759 (Mo. banc 2014). "Only rarely does
a court find that failure to interview witnesses is sufficient to justify the finding of
ineffective assistance of counsel." Sanders v. State, 738 S.W.2d 856, 858 (Mo. banc 1987).
"To succeed on a claim of ineffective assistance of counsel for failure to call a witness,
[Jones] must show that: (1) counsel knew or should have known of the existence of the
witness, (2) the witness could be located through a reasonable investigation, (3) the witness
would testify, and (4) the testimony of the witness would have produced a viable defense."
Hays, 360 S.W.3d at 309-10. As a matter of strategy, the decision not to call a witness is
"virtually unchallengeable." Cherco, 309 S.W.3d at 825 (quoting State v. Gilpin, 954
S.W.2d 570, 576 (Mo. App. W.D. 1997)); see also Hays, 360 S.W.3d at 310 ("The selection
of witnesses is a virtually unchallengeable question of trial strategy.") (quotation omitted).
The decision not to call a witness is presumptively a matter of strategy and "will not support
a claim of ineffective assistance of counsel unless the defendant clearly establishes
otherwise." Radmer v. State, 362 S.W.3d 52, 56 (Mo. App. W.D. 2012) (quoting Hutchison
v. State, 150 S.W.3d 292, 304 (Mo. banc 2004)).
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Here, the Amended Motion identified two witness (Jones's girlfriend and father);
claimed that both witnesses were in the courtroom during the sentencing hearing and would
have testified if called; explained that each would have testified about Jones's supportive
nature, dependability, and character growth, and that Jones had housing and potential
employment in place; and alleged that counsel "had their contact information easily
available to him" and "failed to talk with them about [Jones]." Presuming, arguendo, that
these allegations constitute "facts" sufficient to warrant relief, Jones was not entitled to an
evidentiary hearing if any one of the factual allegations necessary to warrant relief was
refuted by the record. See Bogard, 356 S.W.3d at 853. As the motion court accurately
noted, Jones expressly testified during the sentencing hearing that there were no witnesses
that his counsel failed to investigate, and that there was no evidence that his counsel failed
to present.
Jones argues in his second point on appeal that his testimony during the sentencing
hearing was only relevant to determine whether he knowingly and voluntarily entered a
guilty plea, and not to whether he was satisfied with counsel's performance during
sentencing. Jones offers no authority for this proposition. Though he cites to authority
addressing trial counsel's general duty to investigate,1 he cites no authority for the
proposition that a movant's affirmative assurance that counsel did not fail to talk to

1Jones relies on Porter v. McCollum, 558 U.S. 30, 40 (2009) for the proposition that he "may have been fatalistic or uncooperative, but that does not obviate the need for defense counsel to conduct some sort of mitigation investigation." In Porter, the United States Supreme Court found that standby counsel, who represented the defendant only during sentencing, who had only a short meeting with the defendant before sentencing, and who "did not obtain any of [the defendant's] school, medical, or military service records or interview any of [the defendant's] family," provided constitutionally deficient performance, given the defendant's extensive military history, and evidence that the defendant was suffering from mental health issues. Id. at 39-40. Porter did not involve a scenario where a defendant affirmatively represented the lack of any dissatisfaction with counsel at the time of sentencing.
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witnesses, or to present evidence, carries no weight in determining whether counsel's
performance was reasonable. Beatty v. State Tax Comm'n, 912 S.W.2d 492, 498-99 (Mo.
banc 1995) ("Where a party fails to support a contention with relevant authority or
argument beyond conclusions, the point is considered abandoned."). Here, the sentencing
court's questioning of Jones after sentence was imposed was directed to Jones's satisfaction
with the entire guilty plea proceeding, including sentencing. The sentencing court
expressly asked Jones whether he was "completely satisfied with the help [counsel] gave
you, whether or not you're happy with what I've done here today," referring to the
imposition of a sentence that was in excess of the sentence sought by Jones's counsel. The
trial court did not error in denying the Amended Motion without an evidentiary hearing in
light of Jones's testimony. Jones's second point on appeal is denied.
Jones alternatively argues in his third point on appeal that his claim of ineffective
assistance of counsel was not refuted by the record. We have already explained, however,
that Jones's testimony during the sentencing hearing expressly refuted an essential
component of his claim for ineffective assistance of counsel based on the failure to
investigate or call witnesses to testify--that counsel knew or should have known of Jones's
girlfriend and father, and of their desire to provide character evidence testimony during
sentencing, and that it was unreasonable for counsel not to interview or present them.
Jones argues that his testimony during the sentencing hearing that there were no
witnesses his counsel failed to talk to, or evidence his counsel failed to present, was not
conclusive of the claim in his Amended Motion that counsel failed to investigate or present
testimony from his girlfriend and father. Jones cites to State v. Driver, 912 S.W.2d 52, 55
12
(Mo. banc 1995), for the proposition that questions asked of a movant during a sentencing
hearing "must be specific enough to elicit responses from which the motion court may
determine that the record refutes conclusively the allegation of ineffectiveness asserted in
the [post-conviction] motion." Driver is distinguishable. There, a movant claimed
ineffective assistance of counsel based on having advised trial counsel of a childhood
medical condition that, had it been investigated, could have afforded evidence that would
have resulted in her acquittal. Id. Our Missouri Supreme Court concluded that questions
asked of the movant at sentencing about whether counsel "did . . . a good job," "[d]id . . .
anything that you didn't want them to do," or "[d]id . . . everything you wanted them to do"
were too broad and non-specific to refute the movant's claim conclusively as to deprive her
of an evidentiary hearing on the claim. Id. at 55-56; see id. at 57 (Limbaugh, J., concurring
in part and dissenting in part) (quoting the questions asked of the movant). In so holding,
however, the Supreme Court also observed that unlike sentencing hearings following a
conviction at trial, "the thoroughness of the questioning conducted in most guilty plea
proceedings [results in] significant numbers of Rule 24.035 motions [being] appropriately
overruled without evidentiary hearing[s] because the inquiry conducted by the trial court
upon taking the guilty plea elicits responses that conclusively refute allegations in a later
filed Rule 24.035 motion." Id. at 56.
Jones was specifically asked during the sentencing hearing following his guilty plea
whether there were specific witnesses that counsel should have talked to, or specific
evidence that counsel should have presented. These questions were sufficiently specific to
permit the motion court to rely on Jones's response to refute his Rule 24.035 claim that
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counsel failed to investigate and call witnesses whose testimony would allegedly have
impacted the length of his imposed sentence. That is particularly so because Jones was
aware (based on the allegations in the Amended Motion) that his girlfriend and father were
present in the courtroom and prepared to testify about his character in the hopes of
influencing his sentence.
The trial court did not error in denying the Amended Motion without an evidentiary
hearing. Jones's third point on appeal is denied.

Outcome: The motion court's Judgment is affirmed.

Plaintiff's Experts:

Defendant's Experts:

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