Bliss v. State

367 S.W.3d 190, 2012 WL 2087197, 2012 Mo. App. LEXIS 775
CourtMissouri Court of Appeals
DecidedJune 11, 2012
DocketNo. SD 31359
StatusPublished
Cited by5 cases

This text of 367 S.W.3d 190 (Bliss v. State) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bliss v. State, 367 S.W.3d 190, 2012 WL 2087197, 2012 Mo. App. LEXIS 775 (Mo. Ct. App. 2012).

Opinion

WILLIAM W. FRANCIS, JR., P.J.

Michael Sean Bliss (“Bliss”) appeals the motion court’s denial of his Rule 24.0351 motion for post-conviction relief. Finding no merit to Bliss’s appeal, we affirm the motion court.

Factual and Procedural History

Bliss was charged by information, filed January 15, 2009, with two counts of first-degree statutory sodomy for having deviate sexual intercourse with two children, both of whom were under 12 years old.

The parties executed a plea agreement in which Bliss pled guilty to both counts in exchange for concurrent 12-year sentences. The agreement also provided that the State would oppose any request for probation.

Bliss and plea counsel appeared before the plea court to enter guilty pleas pursuant to this agreement. Bliss stated that he had sufficient time to discuss the “charges” and “all the facts” of his case with plea counsel and that he was satisfied with her services. Bliss also acknowledged the rights he was waiving by pleading guilty, including the right to subpoena and cross-examine witnesses. He affirmed that he understood that by pleading guilty, his right to a trial would “be lost forever” and that he could not later “change [his] mind and plead not guilty[.]” The prosecutor explained the range of punishment to Bliss, which was a 10-year minimum sentence with no limit on the maximum sentence that could be imposed, and that because the crimes to which Bliss was pleading guilty were classified as dangerous felonies, Bliss would be required to serve 85 percent of his sentence before being eligible for parole. The prosecutor also stated the factual basis for Bliss’s plea was that the two victims were present in Bliss’s apartment when Bliss told both girls that he would take them swimming if they rubbed his penis with lotion, which they did until Bliss ejaculated.

The plea court explained the terms of the plea agreement to Bliss, and Bliss denied that any promises, other than what was in the agreement, or threats had been made to him to obtain his plea. The court accepted Bliss’s guilty plea.

During the sentencing hearing, Bliss’s plea counsel asked the court to place Bliss on probation, which the prosecutor opposed. Plea counsel also told the court that Bliss knew his life would be difficult even if probation was granted since he already knew that he would be required to register as a sex offender. The court sentenced Bliss in accordance with the plea agreement to 12 years’ imprisonment on each count, to run concurrent with each other and any existing sentences. The sentencing court also denied probation.

Bliss filed his pro se motion for post-conviction relief on May 3, 2010. An amended motion filed and supplemented by appointed counsel alleged, in part, that Bliss’s plea was involuntary in that he was not advised he would be subjected to lifetime supervision due to his convictions, and that Bliss received ineffective assistance of counsel in that plea counsel failed to investigate his underlying claims.

An evidentiary hearing was held and the motion court was directed to the sentencing transcript where no mention was made of lifetime supervision. Bliss testified that his plea counsel did not discuss lifetime supervision with him. Bliss testified that his plea counsel did not investigate his case and that he told her about several witnesses, but she did not contact them. Bliss testified that he continued to tell his plea counsel that he was not guilty, and [193]*193identified a letter he wrote to her in which he maintained his innocence.

Plea counsel testified that she was familiar with the lifetime-supervision requirement and that she would have discussed it with Bliss. She agreed that she “did, in fact, inform Mr. Bliss of that requirement....” She explained that she also discussed the lifetime-supervision requirement with the prosecutor during the negotiating process in an attempt to get that requirement removed. However, once the prosecutor notified her that he could not get “rid of the lifetime-supervision requirement” she would have again discussed that with Bliss. Plea counsel mentioned there was an email from the State regarding the lifetime-supervision requirement. She agreed that lifetime supervision was not mentioned at the guilty plea hearing. Counsel testified that she had the discovery in the ease, but she did not do depositions because the “offer would have been affected.... ”

The motion court entered findings of fact and conclusions of law overruling Bliss’s postconviction motion. The findings held that Bliss’s claim that his plea was involuntary because he was not informed of the lifetime-supervision requirement was refuted by plea counsel’s testimony at the hearing because she testified that she would have discussed lifetime supervision with Bliss. The motion court specifically found that: “This Court believes that [Bliss] was aware of the lifetime-supervision requirement when he pled guilty.” The motion court further found that Bliss did not prove any failure to investigate would have aided his defense, and that plea counsel’s strategy in failing to fully investigate his case was reasonable under the circumstances. This appeal followed.

Bliss claims the trial court clearly erred in denying Bliss’s motion for post-conviction relief because he was denied ineffective assistance of counsel in that plea counsel failed to: (1) advise Bliss that as a result of his guilty pleas he would be subject to lifetime supervision; and (2) fully investigate Bliss’s defense. The primary issues for our determination are:

1. Whether Bliss demonstrated that plea counsel’s alleged failure to advise him of the lifetime-supervision requirement rendered his plea involuntary and unknowing?
2. Whether Bliss demonstrated plea counsel’s alleged failure to investigate affected the voluntariness of his plea?

Standard of Review

This Court reviews the motion court’s findings and conclusions denying a Rule 24.035 motion to determine whether they are clearly erroneous. Chrisman v. State, 288 S.W.3d 812, 820 (Mo.App. S.D.2009). The motion court’s findings and conclusions are presumptively valid and will be reversed only if this Court, after reviewing the complete record, is left with a definite and firm impression a mistake has been made. Id. The movant bears the burden of proving, by a preponderance of the evidence, the motion court erred. Stuart v. State, 263 S.W.3d 755, 757 (Mo.App. S.D.2008). “At a post-conviction relief evidentiary hearing, the motion court determines the credibility of the witnesses and is free to believe or disbelieve the testimony of any witness, including that of the Movant.” Hurst v. State, 301 S.W.3d 112, 117 (Mo.App. E.D.2010).

Analysis

Bliss raises two points on appeal. In both points, Bliss asserts that he was denied his right to effective assistance of counsel.

[194]*194In order to prevail on a claim of ineffective assistance of counsel, movant must show: “(1) Counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise in similar circumstances, and (2) Counsel’s failure prejudiced Movant.” Rivera v. State,

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Cite This Page — Counsel Stack

Bluebook (online)
367 S.W.3d 190, 2012 WL 2087197, 2012 Mo. App. LEXIS 775, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bliss-v-state-moctapp-2012.