Mary L. Browning v. State of Missouri

• Court: Missouri Court of Appeals
• Decided: March 5, 2024
• Docket: WD85859
• Status: Published

Opinion

MISSOURI COURT OF APPEALS WESTERN DISTRICT

MARY L. BROWNING, ) ) Appellant, ) ) v. ) WD85859 ) STATE OF MISSOURI, ) Filed: March 5, 2024 ) Respondent. )

APPEAL FROM THE CIRCUIT COURT OF DAVIESS COUNTY THE HONORABLE RYAN W. HORSMAN, JUDGE

BEFORE DIVISION THREE: LISA WHITE HARDWICK, PRESIDING JUDGE, KAREN KING MITCHELL, JUDGE, AND CYNTHIA L. MARTIN, JUDGE

Mary Browning appeals from the judgment denying her Rule 24.035 motion after

she pleaded guilty to two counts of stealing and two counts of forgery. She contends the

motion court clearly erred in denying her claim that plea counsel was ineffective for

failing to advise her that she had a viable defense to the class C felony of stealing. For

reasons explained herein, we affirm.

FACTUAL AND PROCEDURAL HISTORY

In December 2017, the City of Coffey requested that the Missouri State Auditor’s

Office (“SAO”) investigate discrepancies within the City’s financial accounts. The SAO’s report found that between September 2015 and August 2017, Browning, in her

official capacity as the City Clerk of the City of Coffey, forged the City of Coffey Board

Minutes, appropriated excess payroll funds, and misappropriated $33,0001 in utility

payments meant to be credited to the utility accounts of the City’s residents. The State

charged Browning as a prior and persistent offender with the class D felony of stealing

(Count I), the class C felony of stealing (Count II), and two counts of the class D felony

of forgery (Counts III and IV).

In November 2020, Browning entered a guilty plea pursuant to a plea agreement.

The agreement stipulated that in exchange for Browning’s guilty plea, the State would

withdraw the prior and persistent offender allegations, recommend a total sentence of 15

years in prison, and would not object to Browning arguing for any disposition within that

cap. Browning also agreed to restitution of approximately $55,000, with the exact

amount to be determined in the Sentencing Assessment Report.

During the guilty plea hearing, the State informed Browning that the range of

punishment for Counts I, III, and IV was up to seven years in the Department of

Corrections, up to one year in the regional jail, a fine of up to $10,000, or any

combination of fine and incarceration; and the range of punishment for Count II was

three to ten years in the Department of Corrections, a fine of up to $10,000, or any

combination of the fine and incarceration up to those maximums. The court restated the

ranges of punishment, and Browning affirmed that she understood and still wished to

1 The SAO’s report showed a total of $33,984.03 in misappropriated funds between 2015 and 2017. 2 plead guilty. Browning asserted that she was entering the plea freely, voluntarily, and

with understanding of her rights. She stated that she understood the charges, plea counsel

had answered all her questions regarding the charges, and she had no further questions.

Browning affirmed that she reviewed the guilty plea petition and waiver of rights with

plea counsel, plea counsel handled her case in a thorough and competent manner, and she

had no complaints. The court accepted Browning’s guilty plea.

In February 2021, the court sentenced Browning to five years in prison on Count I,

to run concurrently with five-year prison sentences on Counts III and IV, and

consecutively with a ten-year prison sentence on Count II. During the sentencing

hearing, the court questioned Browning about counsel’s representation and found no

probable cause to believe that she received ineffective assistance of counsel. Following a

subsequent restitution hearing, the court ordered that Browning pay restitution of

$60,249.

Browning filed a pro se Rule 24.035 motion, which was later amended by

appointed counsel. In her amended motion, Browning claimed her guilty plea was

entered unknowingly and involuntarily due to plea counsel’s failure to advise her that she

could successfully seek dismissal of Count II based on the Missouri Supreme Court’s

decision in State v. Bazell, 497 S.W.3d 263 (Mo. banc 2016). An evidentiary hearing

was held, during which Browning and plea counsel consistently testified that plea counsel

did not believe there were any strong defenses to the charges against her, counsel never

informed her of the Bazell defense to lower the class of felony stealing, and accordingly,

3 counsel advised her to plead guilty. Browning testified that she would not have pleaded

guilty if counsel had advised her she had a meritorious defense.

Following the evidentiary hearing, the motion court entered its findings of fact and

conclusions of law denying Browning’s Rule 24.035 motion. In the judgment, the court

found that Bazell presents no defense to Browning’s case because Section 570.030.112

specifically permits amounts stolen “pursuant to one scheme or course of conduct” to be

aggregated for determining which class of offense the stealing may be charged. The

court concluded that Browning’s individual occasions of theft between September 2015

and August 2017 were properly aggregated pursuant to the statute. Finding that plea

counsel’s performance was not deficient and that Browning suffered no prejudice, the

court denied the claim. Browning appeals.

STANDARD OF REVIEW

We review the denial of a post-conviction motion for clear error. Rule 24.035(k).

The motion court's findings and conclusions are clearly erroneous only if a review of the

entire record leaves us with a definite and firm impression that a mistake was made.

Dobbins v. State, 187 S.W.3d 865, 866 (Mo. banc 2006). We defer to the motion court's

determination of the witnesses’ credibility. Cooper v. State, 621 S.W.3d 624, 630 (Mo.

App. 2021). We will affirm the motion court's judgment if it is sustainable on any legal

ground supported by the record. Swallow v. State, 398 S.W.3d 1, 3 (Mo. banc 2013).

2 All statutory references are to the Revised Statutes of Missouri 2016, as updated by the 2020 Cumulative Supplement, unless otherwise indicated. 4 To be entitled to post-conviction relief for ineffective assistance of counsel,

Browning had to establish that plea counsel failed to exercise the customary skill and

diligence of a reasonably competent attorney under the same or similar circumstances and

that she was thereby prejudiced. Strickland v. Washington, 466 U.S. 668, 687 (1984).

“After a plea of guilty, the issue of ineffective assistance of counsel is only relevant to the

extent that it affected the voluntariness of the guilty plea.” Hernandez v. State, 588

S.W.3d 467, 471 (Mo. App. 2019). “The prejudice prong is met if the movant shows that

but for counsel's ineffective assistance, he or she would . . . not have pleaded guilty but

would have instead insisted on going to trial.” Id. Browning had to prove both the

performance and prejudice prongs of this test to prevail, and if she failed to satisfy either

prong, we need not consider the other. Cone v. State, 316 S.W.3d 412, 415 (Mo. App.

2010).

To satisfy the performance prong of the Strickland test, Browning had to

demonstrate that plea counsel failed to exercise the customary skill and diligence of a

reasonably competent attorney under the same or similar circumstances. Strickland, 466

U.S. at 687. This standard is intentionally vague and “highly deferential” to counsel. Id.

at 689. “A fair assessment of attorney performance requires that every effort be made to

eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's

challenged conduct, and to evaluate the conduct from counsel's perspective at the time.”

Id. Browning “must overcome the strong presumption that [plea] counsel's conduct was

reasonable and effective.” Hosier v. State, 593 S.W.3d 75, 81 (Mo. banc 2019) (citation

omitted). “Reasonable choices of trial strategy, no matter how ill-fated they appear in

5 hindsight, cannot serve as a basis for a claim of ineffective assistance.” Id. (citation

omitted).

ANALYSIS

In her sole point on appeal, Browning contends the motion court clearly erred in

denying her claim that plea counsel was ineffective for failing to assert a Bazell defense

to stealing $33,000 in utility payments in Count II, because any monies appropriated

prior to the January 1, 2017 amendment to the stealing statute could not be used to

enhance her conviction from a class D felony to a class C felony. Browning argues that,

if plea counsel had informed her there might be a meritorious defense to any of the

charges, she would not have pleaded guilty.

Browning’s crimes occurred between September 2015 and August 2017. During

that time, the Supreme Court issued Bazell, 497 S.W.3d 263, which interpreted the felony

enhancement provision of Section 570.030. In Bazell, the defendant was charged with

class C felonies under Section 570.031.1, RSMo Supp. 2009, for stealing firearms. Id. at

266. At that time, stealing was defined as “appropriat[ing] property or services of

another with the purpose to deprive him or her thereof, either without his or her consent

or by means of deceit or coercion[.]” § 570.030.1, RSMo Supp. 2009. The enhancement

provision stated that “[n]otwithstanding any other provision of law, any offense in which

the value of property or services is an element is a class C felony,” if certain conditions

were met. § 570.030.3, RSMo Supp. 2009. Interpreting this language, the Court in

Bazell found that “the felony enhancement provision, by its own terms, only applies if the

offense is one in which the value of the property or services is an element.” 497 S.W.3d

6 at 266 (internal quotation marks omitted) (citing § 570.030.3, RSMo Supp. 2009). The

Court held that the defendant’s two felony convictions for stolen firearms must be

classified as misdemeanors because the value of property or services was not an element

for which Section 570.030.3, RSMo Supp. 2009, could be used to enhance the offenses.

Id. at 267.

Significantly, effective January 1, 2017, the legislature subsequently amended

Section 570.030 to make the offense of stealing a class C felony when the value of

property stolen is $25,000 or more. § 570.030.4. The amendment also made stealing a

class D felony if the value of property stolen is $750 or more. § 570.030.5.

The record shows Browning was charged under the amended version of Section

570.030. Browning asserts that, under the post-Bazell statute, Count II could only be

charged as a class D felony because the amounts she appropriated after January 2017

totaled approximately $11,800. She argues that aggregating the monies taken in 2015

and 2016 with those taken after January 1, 2017, the effective date of the amended

statute, would violate the ex post facto clauses of the United States and Missouri

Constitutions.

When a statute increases the punishment for a crime after it has been committed

and before the defendant has been sentenced, it raises ex post facto concerns. Ex post

facto laws are prohibited under both the United States and Missouri Constitutions. U.S.

CONST. Art. I, § 9, Cl. 3, and Art. I, § 10 Cl. 1; MO. CONST. Art. I, § 13. “An ex post

facto law is a law that provides for punishment for an act that was not punishable when it

was committed or that imposes an additional punishment to that in effect at the time the

7 act was committed.” State v. Harris, 414 S.W.3d 447, 449-50 (Mo. banc 2013) (citation

omitted). The amended version of Section 570.030 is an ex post facto law as applied to

Browning if: “(1) it applies to conduct completed before the statute's enactment, and (2) it

increases the penalty for the crime beyond what the law provided when [s]he acted.” Id.

at 450.

Because Browning’s crimes were not completed before the effective date of the

amended statute, charging Browning under the amended statute does not violate the ex

post facto clause. The record shows the factual basis for the charge was Browning’s

conduct of stealing utility payments over a course of years. The amended version of the

stealing statute was applied to conduct that Browning continued until August 2017, eight

months after the amended statute’s effective date. Browning had fair notice that the

legislature deemed stealing amounts valued at more than $25,000 to be a felonious act.

She “cannot now avoid the consequences of violating [the amended statute] by claiming

that it is an ex post facto law.” State v. Harris, 414 S.W.3d 447, 451 (Mo. banc 2013).

Accordingly, aggregating the amounts Browning stole between 2015 and 2017

was not improper under the amended statute. The amended stealing statute provides that

“[t]he value of property or services appropriated pursuant to one scheme or course of

conduct, whether from the same or several owners and whether at the same or different

times, constitutes a single criminal episode and may be aggregated in determining the

grade of the offense[.]” § 570.030.11. The motion court properly found that Browning’s

individual occasions of theft between 2015 and 2017 constituted a “single criminal

8 episode” permitting the aggregation of amounts stolen pursuant to the amended stealing

statute.

Because the record indicates the amounts stolen were properly aggregated, plea

counsel’s decision to forgo a Bazell defense to Count II was reasonable trial strategy.

During the evidentiary hearing, plea counsel testified that the SAO report was the

primary evidence against Browning and the one defense he considered pursuing was

convincing the fact finder that someone other than Browning had access to the funds.

Plea counsel further testified that accepting the plea offer was a better avenue than going

to trial because he believed the odds of succeeding with such a defense was low. While

plea counsel was familiar with Bazell and its holding, he testified that he did not believe a

Bazell defense applied to Count II in Browning’s case. “[W]e will not convict [plea]

counsel of being deficient for failing to do a futile act.” Edgar v. State, 145 S.W.3d 458,

461 (Mo. App. 2004). The motion court correctly found that Bazell presents no valid

defense to Count II, and any attempt to assert such a defense would have been unavailing.

Accordingly, the motion court did not err in finding that counsel’s performance was not

deficient for failing to advise Browning that she ought to assert a Bazell defense. 3

3 Browning’s reliance on Barber v. State, 609 S.W.3d 795 (Mo. App. 2020), to support her contention that plea counsel’s failure to advise a defendant of a potential defense amounts to deficient performance is misplaced. In Barber, counsel failed to advise the defendant of a viable statute of limitations defense to a stealing charge during plea negotiations because counsel misunderstood recent case law developments and their application to his client’s case. Id. In Browning’s case, plea counsel testified that he did not believe the defense applied to Count II and the record establishes that plea counsel’s decision to forego a futile defense was reasonable. 9 Browning also is not entitled to relief on her post-conviction claim because there

was no showing of prejudice. The motion court found that even if Bazell applied to

Browning’s case, her plea was knowing and voluntary given the weight of the evidence,

the number of charges, and the State’s plea recommendation. The record shows

Browning was originally charged as a prior and persistent offender, which would have

enhanced the punishment for her four class D felonies to class C felonies. As a result, the

motion court found that Browning would have faced the prospect of forty years

imprisonment, and there was no reasonable probability that she would have chosen to

forego the plea offer for a 15-year maximum sentence. The court found that any

testimony to the contrary lacked credibility, and we must defer to the motion court’s

determination. Symington v. State, 638 S.W.3d 596, 599 (Mo. App. 2021). The motion

court properly found that Browning failed to show she was prejudiced by counsel’s

performance. Accordingly, we find no error in the denial of Browning’s Rule 24.035

motion. Point denied.

CONCLUSION

The judgment is affirmed.

_____________________________ LISA WHITE HARDWICK, JUDGE All Concur.