Joseph v. State

482 S.W.3d 457, 2016 Mo. App. LEXIS 131, 2016 WL 615798
CourtMissouri Court of Appeals
DecidedFebruary 16, 2016
DocketED 103047
StatusPublished
Cited by3 cases

This text of 482 S.W.3d 457 (Joseph 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
Joseph v. State, 482 S.W.3d 457, 2016 Mo. App. LEXIS 131, 2016 WL 615798 (Mo. Ct. App. 2016).

Opinion

Gary M. Gaertner, Jr., Judge

Introduction

Glenn Joseph (Movant) appeals from the motion court’s judgment denying his Missouri Rule of Criminal Procedure 29.151 motion for post-conviction relief after an evidentiary hearing. Movant claims his counsel was ineffective for failing to realistically advise him. of the strength of the State’s case against him and the probability he would be convicted after á trial, causing him to reject a plea offer from the State: We affirm.

Factual and Procedural Background

The State charged Mováñt 'as a prior and persistent offender with one count of burglary in the first degree, one count of misdemeanor stealing, and one count of misdemeanor property damage. Before trial, the State offered Movant a plea deal of fifteen years’ imprisonment, which he rejected. After a trial, a. jury convicted him .on all counts.2 The trial court, sentenced him to concurrent' sentences of twenty years’ imprisonment in the Missouri Department of Corrections on the count of first-degree burglary,' and to six months’ imprisonment in a medium security institution on each of the remaining counts. This Court affirmed his conviction and sentence ori appeal. State v. Joseph, 375 S.W.3d 833 (Mo.App.E.D. 2012).

The facts supporting Movant’s conviction were as follows. Peggy Ann Ashmore (Victim) managed ten apartment units, including one. above the ground-floor unit where she lived. Movant was a tenant and also worked for Victim, cleaning the apartments. The day before the burglary, Mov-ant cleaned the unit above Victim’s, After Movant finished cleaning, he went to Victim’s unit to return the key. Victim paid Movant $60 in cash that she retrieved from a portfolio on her,kitchen table containing $700 in cash. Around 5:45 a.m. the following morning, Victim was awake in her bed when she heard the latch on her gate into her yard open and heard a rock break her kitchen window. She saw the window blind in her kitchen move and a hand reach through the window blind toward the portfolio on the table. She ran into the kitchen and lookefi out the window where she' saw Movant'running out of her yard. She recognized Movant from his clothes — the navy blue Dickie pants and long-sleeve shirt he wore when cleaning, his body type, his coloring, his haircut, and his distinctive gait. After the break-in, Victim noticed the portfolio was gone; however, all but $20 of the money had fallen out of the portfolio onto the kitchen floor. Although Victim told the police she never saw the burglar’s, face, she testified at trial that she was. absolutely sure it yvas Movant she saw.

After this Court affirmed Movant’s conviction and sentences, Movant timely filed a pro se motion for post-conviction relief pursuant to Rule 29.15. ' His appointed counsel untimely filed an amended motion. After a‘hearing,'the trial'court determined the delay was riot attributable to Movant and permitted the untimely filing. The amended motion alleged that after the State offered him a plea deal, Movant’s trial counsel “failed to realistically advise [459]*459Movant of the strength of the [S]tate’s case and the probability that he would be convicted after trial.” He further alleged that but for counsel’s lapse, there was a reasonable probability that Movant would have pleaded guilty.

At an evidentiary hearing on the amended motion, Movant testified via deposition that his trial counsel had encouraged him to go to trial, telling him that she did not believe the State had enough evidence to prove its case against him and that he had a good' chance of “beating the case.” Based on this advice, he rejected the State’s plea offer of 15 years’ ‘imprisonment. He attested that his trial counsel explained he was charged with first-degree burglary because Victim told police she saw him reach his1 hand through her window.

Also at the evidentiary hearing, trial counsel testified via deposition that Mov-ant had maintained his innocence to the charges and “never'really wanted to entertain any other idea except for a trial.” She attested she offered him her opinion about the strength of the case, which was that it was “not the best casé for trial” because he had ho alibi witnesses and could not testify in his own defense without revealing his “20 plus” prior convictions. Nevertheless, she stated she did not want to push him into a plea deal when “he always maintained that he wanted a trial, he always maintained that he wasn’t there,” and thus she told him there were “some things [they] could potentially work with” régarding the identification. They discussed the possible range of punishment if he was convicted, but Movant, still wanted to go to trial. Moreover, trial counsel attested Movant was considering whether pleading guilty to. the State charges would have potentially put him a negative position with his pending federal probation-revocation case.

The motion, court denied the amended motion, finding that Movant’s testimony was generally not credible and that he failed to meet his burden' to show either that trial counsel’s performance was deficient or that he was prejudiced thereby. Specifically, the motion court found “there was no reasonable probability that different action of counsel would have resulted in [Movant’s] and this Court’s acceptance of the proffered' plea bargain.” This appeal follows.

Standard of Review

Appellate review of the motion -court’s denial of a Rule 29.15 motion is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 29.15(k). Findings and conclusions are clearly erroneous only if a full review of the record definitely and firmly reveals that a mistake was made. Forrest v. State, 290 S.W.3d 704, 708 (Mo. banc 2009). We defer. to the motion court’s greater ability to judge the credibility of witnesses. Bradley v. State, 292 S.W.3d 561, 566 (Mo.App.E.D. 2009).

Discussion

In his sole point on appeal, Movant argues the motion court erred in denying his post-conviction motion, because his trial counsel was ineffective for failing to realistically advise him of the strength of the State’s case and the probability that he would be convicted after a trial. He argues that but for his trial counsel’s erroneous advice, he would have pleaded guilty and received a lesser sentence. We disagree. .

Where a defendant-has been offered a plea deal by the State, he is entitled to effective assistance of counsel in determining whether to accept the offer. Williams v. State, 367 S.W.3d 652, 654 (Mo.App.E.D. 2012) (citing Lafler v. Coo[460]*460per, — U.S. —, 132 S.Ct. 1376, 1387, 182 L.Ed.2d 398 (2012)), For relief based on a claim of ineffective assistance of counsel, Movant must show by a preponderance of -the evidence both that his counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances, and that his counsel’s deficient performance prejudiced him. Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006) (citing Strickland v. Washington,

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Bluebook (online)
482 S.W.3d 457, 2016 Mo. App. LEXIS 131, 2016 WL 615798, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joseph-v-state-moctapp-2016.