Kulhanek v. State

560 S.W.3d 94
CourtMissouri Court of Appeals
DecidedOctober 23, 2018
DocketNo. ED 106220
StatusPublished
Cited by4 cases

This text of 560 S.W.3d 94 (Kulhanek 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
Kulhanek v. State, 560 S.W.3d 94 (Mo. Ct. App. 2018).

Opinion

SHERRI B. SULLIVAN, P.J.

Introduction

Brandon K. Kulhanek (Appellant) appeals the judgment denying his motion for post-conviction relief under Rule 24.0351 without an evidentiary hearing. Appellant argues he alleges facts in his motion, not refuted by the record, that establish his guilty plea was made unknowingly and involuntarily. Appellant also claims ineffective assistance of trial counsel at his sentencing hearing. We affirm in part and reverse in part, and remand to the motion court for an evidentiary hearing on Appellant's first point on appeal.

Background

Pursuant to a plea agreement with the State, Appellant pled guilty to one count of second-degree murder. Following a sentencing hearing, Appellant was sentenced to life imprisonment, to be served consecutive to a term of imprisonment Appellant was already serving for an unrelated offense.

Appellant was charged with first-degree murder and committing violence against an offender following an incident that occurred between him and his cellmate, Daniel Wilson (Victim), while they were incarcerated together in the Missouri Department of Corrections. During Appellant's guilty plea, he admitted to, on October 14, 2015, striking and strangling Victim in their shared cell, killing him. Appellant stated the reason for the fight was his learning the true reason for Victim's incarceration, which was causing the death of Victim's own child.

Appellant lays out a more detailed account of the incident in his amended Rule 24.035 motion. Appellant states when they first met, Victim was given to boasting about the offense for which he was incarcerated. Victim originally told Appellant he was incarcerated for killing a man with his bare hands after he attempted to assault Victim's wife.

On the day in question, Appellant learned Victim was not being truthful about the offense for which he was incarcerated. Appellant confronted Victim in their cell, demanding he admit to the truth. Victim became defensive, and the two argued. Appellant claims Victim swung at him and Appellant hit back. As they traded blows, Victim rushed Appellant as if to apply "a lethal bear hug"; Appellant continued to fight back, supposedly now in fear for his life. Appellant ultimately gained the upper hand, punching Victim unconscious. As Victim lay unconscious, Appellant stomped on Victim's throat several times and strangled him with his hands. Victim died as a result.

Appellant was originally charged with two counts: Count I, first-degree murder, and Count II, committing violence against an offender. The State agreed to drop the *98second count and reduce the first count to second-degree murder in exchange for Appellant's guilty plea. The State also agreed not to file two other cases pending against Appellant.

On January 9, 2017, Appellant pled guilty to second-degree murder in the Washington County Circuit Court. Pursuant to the plea agreement, the State recommended a sentence of life imprisonment. The decision whether that sentence would be served concurrent or consecutive with his existing term of incarceration was to be left with the trial court.

Later that day, the court held a sentencing hearing to determine whether his sentence would be imposed concurrently or consecutively. Appellant waived his right to a sentencing assessment report. The State recommended Appellant receive a term of life imprisonment to be served consecutively with his existing sentence. In support, the State discussed Appellant's alleged participation in a prison gang, reputed to target other inmates convicted of offenses against children and women. The State argued Appellant's affiliation with this gang was a substantial motive for his killing Victim, and that Appellant was proud and unremorseful for his actions. To back these claims, the State read from a letter purportedly authored by Appellant after he killed Victim in which he boasted about the killing, disclaimed any remorse, and stated a desire to commit future killings. The State did not call any witnesses to authenticate the letter as having been authored by Appellant. Instead, the State claimed the letter had been confiscated from another inmate who identified Appellant as its source, was signed with Appellant's prison nickname, and was written in handwriting identical to other letters known to have been written by Appellant. An excerpt from the letter was read to the court with no objection from Appellant or Appellant's trial counsel (trial counsel). However, trial counsel argued, given the State's failure to lay foundation for the letter's admission, the court should not consider the letter when deciding Appellant's sentence.

Before accepting Appellant's guilty plea, the court questioned Appellant about his legal representation. Appellant stated he understood the charges and had ample time to discuss his case with trial counsel; trial counsel investigated the case to Appellant's full satisfaction; and trial counsel had not refused to do anything Appellant asked of him. Appellant stated all defenses available to the charge had been discussed with and explained to him by trial counsel. Appellant stated he was fully satisfied with his representation and had no complaints whatsoever. Appellant was then read each element of the charge and admitted to each of them.

The court accepted Appellant's plea of guilty and sentenced Appellant to life imprisonment, to be served consecutively with his existing term of incarceration. On May 9, 2017, Appellant filed a timely pro se motion to set aside his guilty plea. The motion court appointed counsel, who filed an amended motion on Appellant's behalf to set aside the guilty plea. In his motion, Appellant claims trial counsel's performance was deficient because he did not discuss possible defenses with Appellant, and did not object to the State's reading of the letter at the sentencing hearing; as a result, his guilty plea and resultant sentence should be set aside. Appellant requested an evidentiary hearing to establish the factual claims in his motion. The motion court denied Appellant's motion without a hearing. This appeal follows.

Points on Appeal

Appellant makes three points on appeal. In Point I, he claims the motion court erred in denying an evidentiary hearing *99on his motion because he averred facts, not refuted by the record, establishing trial counsel was ineffective in that he failed to discuss with Appellant a viable trial defense that Appellant was guilty of the lesser included offense of voluntary manslaughter and, but for trial counsel's failure to do so, Appellant would have chosen to proceed to trial. Point II is identical, except Appellant claims trial counsel did not discuss with him a viable self-defense claim. In Point III, Appellant claims trial counsel was ineffective for failing to object to the State's reading from the letter purportedly authored by Appellant at his sentencing hearing.

Standard of Review

This Court's review of the motion court's ruling on a motion filed under Rule 24.035 is "limited to a determination of whether the findings and conclusions of law ... are clearly erroneous." Rule 24.035(k). The trial court's ruling is clearly erroneous when this Court is left with a "definite and firm impression that a mistake has been made." Worthington v. State,

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Cite This Page — Counsel Stack

Bluebook (online)
560 S.W.3d 94, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kulhanek-v-state-moctapp-2018.