Johnny M. Thomas v. State of Missouri

• Court: Missouri Court of Appeals
• Decided: November 21, 2023
• Docket: ED111245
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION ONE

JOHNNY M. THOMAS, ) No. ED111245 ) Appellant, ) Appeal from the Circuit Court of ) St. Charles County vs. ) ) Honorable Michael J. Fagras STATE OF MISSOURI, ) ) Respondent. ) Filed: November 21, 2023

Introduction

Johnny M. Thomas (“Movant”) appeals the motion court’s judgment after it overruled his

amended Rule 24.035 post-conviction relief motion following an evidentiary hearing.1 In his sole

point on appeal, Movant alleges the motion court clearly erred in overruling his amended motion

finding his plea counsel (“Counsel”) was not ineffective for failing to advise him he could proceed

to trial with the viable defense he was guilty of first-degree child molestation rather than plead

guilty to attempted first-degree statutory rape because there was no evidence of penetration or

attempted penetration to support his conviction. Because Movant did not carry his burden of

proving Counsel was ineffective for failing to advise him of this defense, we deny Point I. We

affirm.

1 All Rule references are to the Missouri Supreme Court Rules (2020), unless otherwise indicated. Factual and Procedural History

In September 2018, Movant was indicted on one count of first-degree statutory rape for

knowingly having sexual intercourse with [Victim], a child less than twelve years old. Victim was

nine years old at the time of the offense. Victim’s mother told police she walked in on the assault

and saw Movant penetrating Victim. Victim gave a forensic interview in which she stated

Movant’s penis “went into a hole.” Movant told police his penis was “trying to go in” at the time

of the assault.

On September 16, 2019, the State filed a substitute indictment alleging Movant committed

one count of attempted first-degree statutory rape when he knowingly attempted to have sexual

intercourse with Victim. That same day, Movant filed a petition to enter a guilty plea. The petition

included several statements, which Movant indicated his agreement with by his signature at the

bottom of each page. Movant indicated, “My attorney has explained to me the nature of each

charge, any lesser included charge(s), and all possible defenses that I might have in this case.”

Movant also indicated, “I am satisfied with my attorney’s services” and “I have no complaints

whatsoever about my attorney’s services on my case.”

At the plea hearing addressing the factual basis for his plea, Movant stated, “I rubbed my

penis on her vagina and attempted to have sexual intercourse.” Counsel testified she reviewed all

defenses with Movant.

At the sentencing hearing, the plea court noted Movant made inconsistent statements in his

sentencing assessment report on whether he committed the offense. After discussing additional

details of the sentencing assessment report, the plea court sentenced Movant to twenty years’

imprisonment. After pronouncing the sentence, the plea court questioned Movant about Counsel’s

2 performance. Movant stated Counsel did everything he required of her, she investigated and

explained his case, and she shared discovery with him.

On January 17, 2020, Movant timely filed his pro se Rule 24.035 motion for post-

conviction relief. The motion court appointed counsel (“initial counsel”) who did not file an

amended motion. In the spring of 2021, substitute postconviction counsel (“substitute counsel”)

entered her appearance and moved to seek a finding initial counsel abandoned Movant and

requesting counsel be reappointed so an amended motion could be filed on Movant’s behalf. The

motion court sustained the motion. Substitute counsel filed a timely amended motion, raising two

claims of ineffective assistance of counsel alleging Counsel: (1) failed to investigate and advise

Movant of the defense there was no penetration or attempted penetration and (2) failed to advise

Movant of the defense he was guilty of first-degree child molestation instead of attempted first-

degree statutory rape because there was “merely surface-level touching” and no penetration or

attempted penetration. The motion court granted Movant an evidentiary hearing on these claims.

Movant and Counsel testified at the evidentiary hearing. After the evidentiary hearing, the

motion court issued its findings of fact, conclusions of law, and judgment finding Movant not

credible and overruling Movant’s amended motion. Movant appeals.

Standard of Review

This Court’s review of a Rule 24.035 post-conviction relief motion is “limited to a

determination of whether the findings and conclusions of the trial court are clearly erroneous.”

Rule 24.035(k). “A motion court’s findings are presumed correct, and we will overturn the ruling

only if we are left with a definite and firm impression that a mistake has been made.” James v.

State, 462 S.W.3d 891, 893 (Mo. App. E.D. 2015) (quoting Nichols v. State, 409 S.W.3d 566, 569

(Mo. App. E.D. 2013)). Movant must prove claims “by a preponderance of the evidence.”

3 Rule 24.035(i). When reviewing the record, “[t]his Court defers to the motion court’s

determination of witness credibility, as it is in a superior position to evaluate such.” Lusk v. State,

655 S.W.3d 230, 235 (Mo. App. E.D. 2022) (quoting Porter v. State, 575 S.W.3d 731, 736

(Mo. App. E.D. 2019)). “The motion court is not required to believe the testimony of the movant

or any other witness, even if uncontradicted . . . .” Id. (quoting Smith v. State, 413 S.W.3d 709,

715 (Mo. App. E.D. 2013)).

When raising an ineffective assistance of counsel claim, the movant must allege facts, not

refuted by the record, showing “counsel’s performance did not conform to the degree of skill, care

and diligence of a reasonably competent attorney,” resulting in prejudice to the movant. Jackson

v. State, 660 S.W.3d 679, 682 (Mo. App. E.D. 2023) (quoting Matthews v. State, 175 S.W.3d 110,

113 (Mo. banc 2005)); see also Strickland v. Washington, 466 U.S. 668, 687 (1984). Prejudice

exists where the movant shows, “but for counsel’s ineffective assistance, he would not have

pleaded guilty and would have insisted on taking his case to trial.” Jackson, 660 S.W.3d at 682

(quoting Taylor v. State, 456 S.W.3d 528, 534 (Mo. App. E.D. 2015)). “If the movant fails to

satisfy either the performance prong or the prejudice prong, we need not consider the other.” Lusk,

655 S.W.3d at 234 (quoting Farr v. State, 408 S.W.3d 320, 322 (Mo. App. E.D. 2013)). “Where

there is a plea of guilty, a claim of ineffective assistance of plea counsel is immaterial ‘except to

the extent that the conduct affected the voluntariness and knowledge with which the plea was

made.’” Id. (quoting Worthington v. State, 166 S.W.3d 566, 573 (Mo. banc 2005)).

Discussion

Point I: Viable Defense Party Positions

In his sole point on appeal, Movant alleges the motion court clearly erred in overruling his

amended motion finding Counsel was not ineffective for failing to advise him he could proceed to

4 trial with the viable defense he was guilty of first-degree child molestation rather than plead guilty

to attempted first-degree statutory rape.2 Movant argues because there was no evidence of

penetration or attempted penetration of Victim’s vagina, Counsel was ineffective for failing to

advise him of the viable defense theory he committed first-degree child molestation rather than

attempted first-degree statutory rape. Movant also argues the motion court’s finding Counsel

testified she had not considered or advised Movant about presenting this lesser-included offense

defense theory because Counsel did not believe it would be successful at trial was not supported

by her evidentiary hearing testimony. Movant also urges this Court to reject the motion court’s

credibility determination regarding his testimony because the record supports he is entitled to relief

on this claim.

The State argues the motion court did not clearly err in denying relief on this claim because

Movant failed to meet his burden of proving Counsel was ineffective given Movant’s guilty plea

petition, Movant’s sentencing hearing testimony, and testimony adduced at the evidentiary

hearing. The State further argues Movant failed to carry his burden of demonstrating he was

prejudiced by Counsel’s alleged ineffectiveness.

Analysis

Movant argues Counsel was ineffective for failing to advise him of the viability of

proceeding to trial to assert he was guilty of first-degree child molestation rather than entering his

guilty plea to attempted first-degree statutory rape because there was no evidence of penetration

or attempted penetration. “It is counsel’s basic duty ‘to discuss the circumstances and possible

consequences of entering a plea in order to ensure that the defendant makes an informed and

intelligent decision about waiving the right to a trial.’” Lusk, 655 S.W.3d at 234 (quoting Wiggins

2 Movant does not appeal the motion court’s judgment denying his claim Counsel was ineffective for failing to investigate or advise him of the defense there was no penetration or attempted penetration.

5 v. State, 480 S.W.3d 379, 383 (Mo. App. E.D. 2015)). “Plea counsel’s failure to inform the movant

of the relevant and viable defense to the charges filed against the movant may negate the knowing

entry of a guilty plea.” Id. (quoting Rueger v. State, 498 S.W.3d 538, 543 (Mo. App. E.D. 2016)).

A plea may also be rendered unknowing and involuntary if plea counsel fails to advise a movant

of possible lesser-included offenses. Id. at 235.

This Court initially addresses Movant’s request to disregard the motion court’s

determination his testimony was not credible because “in isolated instances” appellate courts have

rejected credibility determinations. Movant relies on State v. Ivy, 869 S.W.2d 297, 301 (Mo. App.

E.D. 1994) and Madsen v. State, 62 S.W.3d 661, 667–68 (Mo. App. W.D. 2001), which are

distinguishable because those cases involved rejecting credibility determinations made without an

evidentiary hearing. Here, the motion court found Movant’s testimony he lied under oath at the

plea hearing regarding Counsel’s effectiveness hoping to get a lighter sentence damaged his

credibility at the evidentiary hearing. The law is well-settled this Court must defer to the motion

court’s credibility findings. Lusk, 655 S.W.3d at 235. This Court declines Movant’s request to

disregard the motion court’s credibility determinations after the motion court observed Movant’s

live testimony at the evidentiary hearing.

Movant next contends the record reflects Counsel failed to discuss any defenses with him

regarding his assertion no penetration or attempted penetration occurred during the offense.

Movant relies on his evidentiary hearing testimony he “took [his] genitals and [he] rubbed it on

the surface of a vagina” but denied attempting to penetrate Victim. Movant argues the lack of

penetration would support the defense he is guilty of the lesser-included offense of first-degree

child molestation.

6 Movant was convicted of attempted first-degree statutory rape under section 566.032.3

“Attempted statutory rape in the first degree occurs when a subject, with the purpose of committing

the offense, takes a substantial step towards having sexual intercourse with another person who is

less than fourteen years old.” State v. Smith, 330 S.W.3d 548, 555 (Mo. App. S.D. 2010) (internal

quotations omitted); section 566.032.1. “Sexual intercourse” is defined as “any penetration,

however slight, of the female genitalia by the penis.” Section 566.010(7).

A person commits the offense of first-degree child molestation “if he or she subjects

another person who is less than fourteen years of age to sexual contact and the offense is an

aggravated sexual offense.” Section 566.067.1. “Sexual contact” is defined as “any touching of

another person with the genitals or any touching of the genitals . . . of another person . . . for the

purpose of arousing or gratifying the sexual desire of any person . . . .” Section 566.010(6). First-

degree child molestation is a lesser-included offense of statutory rape. State v. Barbee, 568 S.W.3d

28, 33 (Mo. App. W.D. 2018).

Movant likens his case to Barbee, in which the Western District reversed a statutory rape

conviction after finding the evidence was insufficient to prove the defendant’s penis penetrated the

victim’s vagina when the record demonstrated the defendant’s penis only “touched” the victim’s

vagina. Barbee, 568 S.W.3d at 31–32. The court remanded the case with directions to vacate the

conviction and sentence, enter a conviction for the lesser-included offense of child molestation,

and resentence the defendant accordingly. Id. at 34.

While Barbee supports Movant’s assertion first-degree child molestation is a lesser-

included offense of attempted statutory rape, it does not aid in his argument the evidence here

demonstrated “mere surface-level touching” to support a finding Counsel was ineffective for

3 All statutory references are to RSMo Cum. Supp. 2017, unless otherwise indicated.

7 failing to discuss this possible defense with him. In Barbee, the court found “there was simply a

dearth of both facts and reasonable inferences to support a determination that penetration

occurred.” Id. at 32. In contrast, Counsel testified she examined the State’s evidence which

included Victim’s mother walking in on the assault and witnessing penetration, Victim’s forensic

interview stating Movant’s penis “went into a hole,” and Movant’s statement to police his penis

was “trying to go in.” Movant also testified at the plea hearing, “I rubbed my penis on her vagina

and attempted to have sexual intercourse” when reciting the factual basis for his plea. The only

evidence to support Movant’s defense was his evidentiary hearing testimony stating he “took [his]

genitals and [he] rubbed it on the surface of a vagina,” which the motion court rejected as

noncredible. Hence, the motion court did not err in finding Counsel was not ineffective for failing

to advise Movant about this lesser-included offense defense theory because there was evidence of

penetration or attempted penetration.

Movant further argues the motion court erred in denying his Rule 24.035 motion because

the motion court’s finding Counsel testified she had not considered or advised Movant about

presenting this lesser-included offense defense theory because Counsel did not believe it would be

successful at trial was not supported by the evidentiary hearing record. Movant cites State v.

Prince, 940 S.W.2d 534 (Mo. App. E.D. 1997), to support his claim this Court must reject any

motion court finding unsupported by the record. In Prince, this Court rejected a motion court’s

finding regarding counsel’s trial strategy without the benefit of an evidentiary hearing. Prince,

940 S.W.2d at 539. Here, the motion court held an evidentiary hearing and summarized Counsel’s

testimony. Movant is correct Counsel could not recall many specific details of Movant’s case or

whether she discussed the possibility of raising the defense his actions constituted child

molestation. Counsel testified, however, that after examining the State’s evidence, which she

8 characterized as “pretty detrimental,” and “pretty bad facts,” she “thought [Movant’s] chances

were better to [plead guilty] than to go to trial and face a worse sentence,” and she did not believe

Movant’s claim presented a viable defense. Hence, the motion court’s finding was supported by

the evidentiary hearing record.

Because this Court defers to the motion court’s credibility determinations and Movant did

not carry his burden of demonstrating the lesser-included defense theory of arguing he committed

first-degree child molestation provided a viable defense, the motion court did not clearly err in

overruling Movant’s Rule 24.035 motion. Point I is denied.

Conclusion

The motion court’s judgment is affirmed.

_______________________________ Philip M. Hess, Judge

Robert M. Clayton III, P.J. and Cristian M. Stevens, J. concur.