In the Missouri Court of Appeals Western District MICAH WYNES, ) ) Appellant, ) WD83891 ) v. ) OPINION FILED: July 6, 2021 ) STATE OF MISSOURI, ) ) Respondent. )
Appeal from the Circuit Court of Clinton County, Missouri The Honorable Daren L. Adkins, Judge
Before Special Division: Cynthia L. Martin, Chief Judge, Presiding, Lisa White Hardwick, Judge and Alok Ahuja, Judge
Micah Wynes ("Wynes") appeals the denial of his pro se Rule 24.0351 motion to
set aside his guilty plea to the charge of murder in the second-degree. Wynes alleges that
the motion court committed clear error because his guilty plea was not voluntarily made
because he was under duress at the time he entered the plea. Wynes also alleges that he
received ineffective assistance of counsel because he was not advised that the lesser-
included offense of voluntary manslaughter could have been submitted to the jury.
Finding no error, we affirm.
1 All references to Rules are to Missouri Court Rules, Volume I -- State, 2021 unless otherwise noted. Factual Background and Procedural History
Wynes was charged with murder in the first-degree on September 6, 2017, in
connection with the death of Donald Hadden ("Victim") on approximately July 5, 2015.
Victim's body was discovered on February 12, 2017, by hunters in the woods near
Cannonball Road and Missouri Highway 33 in Clinton County, Missouri.
On December 4, 2018, the first day of Wynes's trial, Wynes announced that he
wished to plead guilty pursuant to an agreement with the State to amend his charge from
first-degree murder to second-degree murder. The State's plea offer had been extended to
Wynes about a week prior to trial. As a part of the plea agreement, the State agreed to
argue for a sentence of no more than twenty years, though Wynes would be required to
enter an open plea, exposing Wynes to a sentence within the full range of punishment of
up to thirty years or life imprisonment.
During the guilty plea hearing, Wynes acknowledged reviewing the amended
information charging him with murder in the second-degree, and acknowledged having
had sufficient time to go over the document with his attorney. Wynes confirmed that he
understood the amended charge and the range of potential punishment. Wynes confirmed
on more than one occasion that he understood the trial court remained free to sentence
Wynes within the full range of punishment, and that if the court imposed a sentence in
excess of that argued by the State, Wynes would not be permitted to withdraw his guilty
plea.
Wynes identified the petition to enter plea of guilty and waiver of rights filed on
his behalf, and acknowledged his signature on the petition. Wynes acknowledged
2 reading and understanding the petition. The petition included two affirmations that are
material to this case. In paragraph 7, Wynes affirmed that his "attorney has counseled
and advised me on the nature of each charge, on all lesser-included offenses, if any, and
on all possible defenses that I might have in this case." In paragraph 15, Wynes affirmed
that "[n]either I, nor any of my friends or loved ones, has been mistreated, threatened,
coerced, or forced in any manner by anyone to get me to plead guilty, nor were there any
promises, inducements or representations made except as set forth in Paragraph 14
above."2
Wynes confirmed in response to questioning that he had "absolutely no
complaints" about how trial counsel handled his case, and that he had not been
"threatened or coerced in any manner" to plead guilty. Specifically, Wynes confirmed
that there had been no "threat of physical violence to you, family, friends, [or] relatives"
that had in any manner caused him to plead guilty.
When asked to explain his conduct giving rise to the amended charge, Wynes
admitted that he and another person (later described as Joseph Seward ("Seward")) had
Victim in a car and were driving around pleading with Victim to leave town and go to
Georgia. Wynes admitted that although he did not intend to take Victim's life, he was
"willing to do some harm to him" because he had heard Victim was a snitch. Wynes said
that when the car ran out of gas on a gravel road, he and Victim got out of the car.
Wynes said that he pulled out a shotgun, pointed it at Victim, pulled the trigger, and
2 Paragraph 14 acknowledged there had been no assurances of leniency; that Wynes was entering an open plea; and that although the State would be suggesting a cap of twenty years, the sentence imposed would be "solely a matter within the control of the Judge."
3 continued to pull the trigger as Victim ran until, after hearing bushes rustling, it became
silent. Wynes said an uninvolved bystander then came by and assisted he and Seward
with getting gas, and that Wynes and Seward left the area. Wynes did not know whether
he had, in fact, shot Victim, but acknowledged that Victim "went missing" after this
altercation, and that as a result, Wynes believed he caused Victim's death with the
shotgun.
The State added that its evidence would be that witnesses saw Victim, Wynes, and
Seward leave a hotel in the north part of Kansas City in a car, and that this was the last
time anyone besides Wynes or Seward saw Victim alive. The State advised that Seward
would testify that after driving for a long while in unfamiliar areas, the car ran out of gas,
and Wynes and Victim got out of the car. Seward heard a shotgun blast, and then saw
Victim react as if he had been hit in the arm or face. Victim started to run to nearby
woods, and Wynes took steps in the same direction and continued firing. Seward said
that he and Wynes later tried to find Victim's body, but could not determine exactly
where they were at the time Victim was shot, though Seward was able to generally
describe the area, including the unique orientation of the gravel road. The State noted
that when hunters found Victim's body nearly two years later, it was in an area that very
closely matched Seward's description. Scientific evidence would have established,
according to the State, that Victim's remains had been in the woods for an amount of time
that was consistent with Victim having been shot on July 5, 2015. After hearing the
State's recitation of the expected evidence, Wynes agreed with the evidence and noted he
had no amendments or corrections.
4 The trial court accepted Wynes's guilty plea and ordered a sentencing assessment
report. Following a sentencing hearing on February 20, 2019, where numerous witnesses
testified, the trial court announced a sentence of twenty-eight years. The trial court noted
in a docket sheet entry the particulars of Wynes's guilty plea and announced sentence,
followed by the statement "All as per formal Sentence & Judgment to be prepared and
filed." The trial court then entered a written judgment of conviction and sentence
("Judgment") on February 22, 2019.
On August 20, 2019, Wynes filed a pro se Rule 24.035 motion ("Motion").
Retained counsel later entered an appearance and filed a statement that no amended
motion would be filed.3 The pro se Motion alleged that sentence was imposed on
February 20, 2019, although the Judgment was not filed until February 22, 2019.
Although the Motion raised three claims, only two are at issue in this appeal.
Wynes claimed: (i) that he was coerced into pleading guilty by threats made to family
members, and that as a result, his guilty plea was not voluntary; and (ii) that trial counsel
did not advise him of lesser-included offenses, specifically voluntary manslaughter, and
that as a result, his guilty plea was not voluntary.
3 A week after this case was submitted, Wynes's counsel filed a memorandum and a report of filing generated by the Missouri Courts eFiling System, and argued that the Motion was efiled on August 19, 2019 at 11:38 p.m. However, the same materials reflect the efiled Motion was not deemed accepted by the Clerk until August 20, 2019. Wynes's counsel argues that the Clerk of the Circuit Court was obligated, without exception, to treat the efiled document as filed on August 19, 2019. However, that argument was not made in Wynes's brief, or during oral argument. And the materials Wynes's counsel filed a week after this case was submitted were not accompanied by a request for leave of court to supplement the record on appeal as required by Rule 81.12(f), or to file a supplemental brief as required by Western District Special Rule 37. Nor is there any indication that the materials were a part of the record considered by the motion court. We therefore have not considered the memorandum or materials improperly filed by Wynes's counsel after this case was submitted. Nonetheless, because, as we discuss infra, we find that Wynes's Motion was timely filed, Wynes will suffer no prejudice from his counsel's failure to properly address, before this case was submitted, any dispute regarding the date the Motion was filed.
5 At a hearing on the Motion on June 12, 2020, Wynes and his father, Randall
Wynes, testified. Wynes's trial counsel did not testify. The motion court found that the
purported threat about which Wynes and his father testified (which was allegedly made
by Victim) occurred before Victim was killed, and could not have influenced Wynes's
guilty plea. The motion court also found that Wynes's claim that he pled guilty under
duress because of this purported threat was expressly refuted by the record, as Wynes
testified during the guilty plea hearing that neither he, nor any member of his family,
friends, or relatives, had been threatened or coerced in any manner as to cause him to
plead guilty.
With respect to Wynes's claim of ineffective assistance based on trial counsel's
alleged failure to advise Wynes of the lesser-included offense of voluntary manslaughter,
the motion court found that Wynes failed to "state that but for the failure of counsel to
advise of the lessor-included [sic] to second degree murder he would have proceeded to
trial as charged of first-degree murder and thus fails to establish that prejudice occurred."
In addition, the motion court found that Wynes failed to plead any facts in his Motion
that "show how 'sudden passion,' as contemplated in the voluntary manslaughter statute
arises or applies to his case." In addition, the motion court noted that Wynes's statement
during the guilty plea hearing about the circumstances that led to him shooting Victim
included no facts that would have supported submission of the lesser-included offense of
voluntary manslaughter.
Based on these findings, the motion court entered findings of fact and conclusions
of law denying the Motion ("Rule 24.035 Judgment"). The 24.035 Judgment noted that
6 Wynes "was sentenced on February 20, 2019," (the date of the sentencing hearing),
although the Judgment of conviction and sentence was not filed until February 22, 2019.
Wynes appeals.
Analysis
State's Request to Dismiss Wynes's Appeal
Before addressing Wynes's points on appeal, we must address the State's request to
dismiss Wynes's appeal given the alleged untimeliness of the Motion. Relevant to this
case, Rule 24.035(b) provides:
A person seeking relief pursuant to this Rule 24.035 shall file a motion to vacate, set aside or correct the judgment or sentence substantially in the form of Criminal Procedure Form No. 40. . . . The motion shall be filed no earlier than the date the sentence is entered if no appeal is taken . . . . If no appeal of such judgment or sentence is taken, the motion shall be filed within 180 days of the date the sentence is entered.
(Emphasis added.) "Failure to file a motion within the time provided by . . . Rule 24.035
shall constitute a complete waiver of any right to proceed under this Rule 24.035 and a
complete waiver of any claim that could be raised in a motion filed pursuant to . . . Rule
24.035." Rule 24.035(b).
The State argues that both the Motion and the Rule 24.035 Judgment identify
February 20, 2019 as the date on which Wynes was sentenced. The Motion, which was
filed on Criminal Procedure Form No. 40, did, in fact, designate "2-20-2019" in response
to a question asking for the "date upon which sentence was imposed." And the Rule
24.035 Judgment recites that Wynes "was sentenced on February 20, 2019." The State
also notes that following the February 20, 2019 sentencing hearing, the trial court made a
7 docket sheet entry on the same date describing Wynes's sentence. The State argues that
as a result, the Motion was untimely, as it was filed on August 20, 2019, 181 days after
February 20, 2019. The State also acknowledges, however, that the formal Judgment of
conviction and sentence was not filed until February 22, 2019. By this measure, Wynes's
Motion was timely, as it was filed 179 days after the Judgment.
The State correctly notes that a Rule 24.035 movant is obligated to allege facts in a
pro se motion "showing he timely filed his motion." Dorris v. State, 360 S.W.3d 260,
267 (Mo. banc 2012). However, a movant can meet his burden of proof on the issue of
timeliness if "the time stamp on the file reflects that [the pro se motion] is within the time
limits proscribed in [Rule 24.035]." Id. Here, the time stamp on Wynes's Motion was
August 20, 2019. The novel issue presented in this case is whether that time stamp
should be compared to February 20, 2019 (the date Wynes's Motion recites as the date
sentence was "imposed," the date of the sentencing hearing and the trial court's
corresponding docket sheet entry, and the date the Rule 24.035 Judgment recites as the
date Wynes was sentenced), or to February 22, 2020 (the date the trial court filed the
Judgment of conviction and sentence).
The plain language of Rule 24.035(b) resolves this issue. Relevant to this case,
Rule 24.035(b) provides that a Rule 24.035 motion "shall be filed within 180 days of the
date the sentence is entered if no appeal is taken." This suggests strongly that the
timeframe for filing a Rule 24.035 motion does not begin to run until a sentence can be
appealed. See Rule 24.035 ("If no appeal of such judgment or sentence is taken, the
motion shall be filed within 180 days of the date the sentence is entered.") In a criminal
8 case, the right of appeal arises only after "the rendition of a final judgment." Rule
30.01(a) (emphasis added); see also, section 547.070 (authorizing appeals "[i]n all cases
of final judgment rendered upon any indictment or information . . . . ").4 A judgment of
conviction in a criminal case "shall set forth the plea, the verdict or findings, and the
adjudication and sentence." Rule 29.07(c) (emphasis added). Because a Rule 29.07(c)
judgment of conviction "shall" include the sentence imposed, we conclude that a sentence
is not entered (i.e., subject to the right of appeal) until a Rule 29.07(c) final judgment of
conviction is entered.5
The trial court's oral announcement of Wynes's sentence on the record during the
sentencing hearing on February 20, 2019, did not constitute the entry of sentence in a
manner that could be appealed, and thus did not trigger the time within which Wynes was
required to file a Rule 24.035 motion. We reach the same conclusion with respect to the
trial court's February 20, 2019 docket sheet entry describing the guilty plea, the
conviction, and the announced sentence. The docket sheet entry expressly contemplated
the trial court's intent to enter judgment in a separate document, as it stated: "All as per
formal Sentence & Judgment to be prepared and filed." The "formal" judgment was not
entered until February 22, 2019.6
4 Though Rule 74.01(a) addresses judgments entered in civil cases, it includes language that is nonetheless instructive, as it provides that "[a] judgment is rendered when entered. A judgment is entered when a writing signed by the judge and denominated 'judgment' or 'decree' is filed." (Emphasis added.) 5 Even then, to be a final judgment that can be appealed, a judgment of conviction must resolve all criminal counts before the court, leaving nothing for further adjudication. State v. Waters, 597 S.W.3d 185, 189 (Mo. banc 2020) ("A judgment of conviction is not final so long as any count in an indictment or information remains pending before the circuit court.") 6 Although there is no corollary for Rule 74.01, (which is applicable to civil cases), in the Rules of Criminal Procedure, it is nonetheless noteworthy that Rule 74.01(a) provides that a docket sheet entry will not constitute the
9 Thus, no judgment of conviction or sentence was "entered" in Wynes's case until
February 22, 2019, when the formal Judgment was filed. According to the plain
language of Rule 24.035(b), Wynes had 180 days from the date his sentence was entered
to file his Motion, and Wynes timely did so by filing the Motion on August 20, 2019.
Though Wynes responded to a question on Criminal Procedure Form No. 40
which asked when his sentence was "imposed" by noting the date "2-20-2019," that is not
controlling. First, "imposed" is not necessarily synonymous with "entered" as defined by
Rule 74.01(a). Technically, Wynes's response to the Form 40 question is arguably
correct, as Wynes's sentence was "imposed" (that is, announced), during the February 20,
2019 sentencing hearing. Though Wynes's Motion was required to include facts
permitting a determination of timeliness, Wynes sustained his burden to prove the
timeliness of his Motion as he was afforded a hearing, and the record in the motion court
necessarily included the file stamp on the Motion and the underlying Judgment in the trial
court record.7
Similarly, it is not controlling that the Rule 24.035 Judgment found that Wynes
"was sentenced on February 20, 2019," a statement that is technically correct, as sentence
was announced on that date during the sentencing hearing. The Rule 24.035 Judgment
did not find that Wynes's sentence was entered on February 20, 2019, and made no
findings whatsoever on the subject of the timeliness of Wynes's Motion.
entered judgment in a case if "the docket sheet entry indicates that the court will enter the judgment in a separate document," in which case "[t]he separate judgment shall be the judgment when entered." Rule 74.01(a). 7 Best practices would suggest modification of Criminal Procedure Form No. 40 to require a pro se movant to identify when the judgment of conviction was entered, instead of asking the movant to identify when sentence was "imposed." That is especially so as the question on the form does not warn or advise the pro se movant that the response will be used to gauge the timeliness of the motion.
10 Wynes's Motion was timely filed. The State's request to dismiss Wynes's appeal is
denied.
Points on Appeal and Standard of Review
We turn our attention to the merits of Wynes's points on appeal. Wynes argues in
his first point that the motion court erred in denying the Motion because Wynes's guilty
plea was not voluntary as it was made under duress. In his second point, Wynes argues
that the motion court erred in denying the Motion because trial counsel was ineffective in
failing to advise Wynes that the lesser-included offense of voluntary manslaughter could
have been submitted to the jury.
Our review of the denial of a Rule 24.035 motion is limited to determining
whether the motion court's findings of fact and conclusions of law are clearly erroneous.
Rule 24.035(k). "'A judgment is clearly erroneous when, in light of the entire record, the
court is left with the definite and firm impression that a mistake has been made.'" Davis
v. State, 486 S.W.3d 898, 905 (Mo. banc 2016) (quoting Swallow v. State, 398 S.W.3d 1,
3 (Mo. banc 2013)). "The motion court's findings are presumed correct." Id. (citing
Johnson v. State, 406 S.W.3d 892, 898 (Mo. banc 2013)). This court "defers to 'the
motion court's superior opportunity to judge the credibility of witnesses.'" Id. (quoting
Barton v. State, 432 S.W.3d 741, 760 (Mo. banc 2014)).
Point One
In his first point, Wynes seeks to withdraw his guilty plea because it was not
voluntary as he was under duress at the time of the plea. "A claim that a guilty plea was
not knowingly and voluntarily entered is a claim that the conviction violates the
11 constitution and laws of this state or the constitution of the United States and, thus, falls
within the claims enumerated in Rule 24.035(a)." Id. at 856-57. Wynes was therefore
required to assert his post-sentencing request to withdraw his guilty plea in his Motion.
Id. at 857.
Here, Wynes's Motion identified two alleged sources of duress: a nonspecific
threat made at an unspecified date and time by a person named Matt Abul to Wynes and
to members of Wynes's family; and a threat made by Victim to Wynes's father in June of
2015. During the hearing on his Motion, Wynes presented no evidence addressing the
threat made by Matt Abul, rendering that assertion in his Motion abandoned.
"Allegations in a post-conviction motion are not self-proving." Cole v. State, 223 S.W.3d
927, 931 (Mo. App. S.D. 2007) (quoting Nunley v. State, 56 S.W.3d 468, 470 (Mo. App.
S.D. 2001)). "It is well-settled that a movant's failure to present evidence at a hearing to
provide factual support for a claim in his or her post-conviction motion constitutes an
abandonment of that claim." Id. at 932 (quoting Watson v. State, 210 S.W.3d 434, 438-
39 (Mo. App. S.D. 2006)).
With respect to the purported threat by Victim, Wynes and his father testified that
sometime before Victim was murdered, Victim threatened Wynes's father with a gun.
Wynes's father testified that the incident occurred in June 2015. Victim had called
Randall Wynes to tell him to come get Wynes because Wynes was having a seizure.
Randall Wynes had to drive around to find the car the men were in because Victim could
only give a vague description of their location. Randall Wynes found Victim and Wynes
passed out in a car sitting across the street from Randall Wynes's home in Liberty,
12 Missouri. The driver's side door was open. When Randall Wynes walked up to the car,
Victim roused, and pointed a gun at Randall Wynes demanding to know who he was.
Randall Wynes told Victim he was Wynes's father, at which point Randall Wynes
retrieved Wynes (who was still passed out). Randall Wynes testified that he did not
know that it was Victim who threatened him with a gun until he "pieced it together later .
. . after all this started going down." Randall Wynes also testified that he did not tell
Wynes about the fact Victim pulled a gun on him until "just before his guilty plea."
The motion court found that Wynes did not sustain his burden to show that he was
under duress at the time of his guilty plea because Randall Wynes "testified that he didn't
know who ha[d] threatened him until after [] [V]ictim had already been shot." Since
Randall Wynes did not tell Wynes about the encounter with Victim until just before
Wynes's guilty plea, Wynes could not have felt threatened or coerced to enter a guilty
plea by Victim's alleged threat, as the Victim was already dead by that time.
The motion court also found that Wynes's claim of duress was expressly refuted
by the record. The motion court noted that during the guilty plea hearing, Wynes
answered "No" when asked whether he or any member of his family, friends, or relatives
had "been threatened or coerced in any manner to cause you to plead guilty here today."
And Wynes answered "Yes" when asked to confirm that he was making his plea of guilty
"freely, voluntarily, and simply because you are guilty as charged." The motion court
was free to disbelieve Wynes's contrary assertion in the Motion. Couch v. State, 611
S.W.3d 605, 614 (Mo. App. E.D. 2020) ("The motion court 'is free to believe or
13 disbelieve the testimony of any witness, including the movant.'" (quoting Tate v. State,
461 S.W.3d 15, 24 (Mo. App. E.D. 2015))).
Wynes has not demonstrated that the motion court's findings are clearly erroneous.
As a result, the motion court's denial of Wynes's claim that his guilty plea was not
voluntary because it was given under duress was not clearly erroneous.
Point One is denied.
Point Two
In his second point, Wynes argues that the motion court committed error when it
denied the Motion because trial counsel was ineffective in failing to advise Wynes that a
lesser-included offense of voluntary manslaughter could have been submitted to the jury
in a jury trial.
"To be entitled to post-conviction relief for ineffective assistance of counsel, a
movant must show by a preponderance of the evidence that his or her trial counsel failed
to meet the Strickland test in order to prove his or her claims." Davis, 486 S.W.3d at
905-06 (citing Strickland v. Washington, 466 U.S. 668 (1984)). "Under Strickland,
Movant must demonstrate that: (1) his trial counsel failed to exercise the level of skill and
diligence that a reasonably competent trial counsel would in a similar situation, and (2)
he was prejudiced by that failure." Id. at 906 (citing Strickland, 466 U.S. at 687).
"Movant must overcome the strong presumption that trial counsel's conduct was
reasonable and effective." Id. (citing Johnson, 406 S.W.3d at 899). "To overcome this
presumption, a movant must identify 'specific acts or omissions of counsel that, in light
14 of all the circumstances, fell outside the wide range of professional competent
assistance.'" Id. (quoting Zink v. State, 278 S.W.3d 170, 176 (Mo. banc 2009)).
"'To establish relief under Strickland, a movant must prove prejudice.'" Id.
(quoting Johnson, 406 S.W.3d at 899). "Prejudice occurs when 'there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different.'" Id. (quoting Deck v. State, 68 S.W.3d 418, 429 (Mo. banc
2002)).
This court need not "address both [Strickland] prongs if the movant has failed to
make a sufficient showing on one." Taylor v. State, 382 S.W.3d 78, 81 (Mo. banc 2012)
(citing Strickland, 466 U.S. at 697). "If the ineffectiveness claim can be disposed of
because of lack of sufficient prejudice, that course should be followed." Id. (citing
Strickland, 466 U.S. at 697).
Here, the motion court made no findings or conclusions with respect to the
Strickland performance prong. The motion court did not determine whether Wynes
established that trial counsel failed to advise Wynes of the lesser-included offense of
voluntary manslaughter. And the motion court did not determine whether trial counsel's
purported failure to advise Wynes about a lesser-included offense fell outside the range
of professional competence under the circumstances. Instead, the motion court focused
its findings and conclusions on the Strickland prejudice prong. The motion court found
that Wynes did not sustain his burden to establish prejudice as a result of trial counsel's
alleged failure to advise of the possibility of submission of Wynes's case to the jury on a
lesser-included offense of voluntary manslaughter.
15 Wynes's point on appeal does not claim error associated with the motion court's
conclusion that Strickland prejudice was not established. Instead, Wynes's point relied
on complains only that it was error to deny his claim of ineffective assistance because
trial counsel failed to advise Wynes of a lesser-included offense. Wynes's point on
appeal focuses solely on the Strickland performance prong about which the motion court
made no findings.8 Wynes's failure to contest the motion court's finding that no prejudice
was established, even presuming trial counsel failed to advise Wynes that a lesser-
included offense could have been submitted to the jury, is fatal to his appeal. Dumler v.
Nationstar Mortgage, LLC, 585 S.W.3d 343, 348 (Mo. App. W.D. 2019) (citing
STRCUE, Inc. v. Potts, 386 S.W.3d 214, 219 (Mo. App. W.D. 2012) (holding that failure
to challenge a finding or ruling that would support the trial court's judgment is fatal to an
appeal).
Even if Wynes could overcome this obstacle, we would not find that the motion
court clearly erred when it concluded that Wynes did not establish Strickland prejudice.
The motion court found that Wynes had the obligation to "cite facts not refuted by the
record that, if true, would show that if he had been informed of the possibilities of an
instruction on and conviction of involuntary [sic] manslaughter, he would have foregone
the State's plea offer and would have proceeded to trial." The motion court noted that
8 Though the motion court made no findings about the Strickland performance prong in connection with Wynes's claim of ineffective assistance of counsel, we note that Wynes offered no evidence during his hearing that trial counsel's alleged failure to advise of a lesser-included offense fell outside the wide range of professional competent assistance under the circumstances. Nor did Wynes call trial counsel as a witness, or explain trial counsel's absence as a witness. The motion court was free to disbelieve Wynes's bare assertion that trial counsel failed to advise him of an available lesser-included offense, particularly in light of Wynes's petition filed to advise of his intent to enter a guilty plea, where Wynes affirmed that trial counsel had "counseled and advised me on the nature of each charge, on all lesser-included offenses, if any, and on all possible defenses that I might have in this case."
16 absent the plea offer, Wynes would have been required to proceed to trial on the charge
of murder in the first-degree. The motion court found that Wynes "fails to state that but
for the failure of counsel to advise of the lessor-included [sic] to second-degree murder
he would have proceeded to trial as charged of first-degree murder and thus fails to
establish that prejudice occurred." We agree.
Although Wynes summarily testified during the hearing on his Motion that had he
known of the lesser-included offense of voluntary manslaughter, he would not have pled
guilty to murder in the second-degree and would have insisted on going to trial, Wynes's
Motion made no such assertion, and failed to state any facts addressing prejudice. The
motion court was free to disbelieve Wynes's self-serving testimony during the hearing.
Couch, 611 S.W.3d at 614 ("The motion court 'is free to believe or disbelieve the
testimony of any witness, including the movant.'" (quoting Tate, 461 S.W.3d at 24)).
And the motion court was free to attach significance to the fact that the Motion did not
allege any facts that would support a finding of prejudice. Vogl v. State, 437 S.W.3d 218,
226 (Mo. banc 2014) (observing that a Rule 24.035 movant "must allege facts showing a
basis for relief" and "must prove those allegations" (emphasis in original) (other citations
omitted)). The motion court did not clearly err in concluding that Wynes failed to sustain
his burden to establish prejudice by showing that but for trial counsel's alleged failure to
advise him of a lesser-included offense, he would not have pled guilty and would have
insisted on going to trial. Webb v. State, 334 S.W.3d 126, 128 (Mo. banc 2011) ("To
satisfy the 'prejudice' requirement when challenging a guilty plea, the movant must allege
facts showing 'that there is a reasonable probability that, but for counsel's errors, he
17 would not have pleaded guilty and would have insisted on going to trial.'" (quoting
Coates v. State, 939 S.W.2d 912, 914 (Mo. banc 1997))).
In addition, the motion court found that Wynes failed to establish prejudice
because he "failed to pled [sic] any facts that show how 'sudden passion' as contemplated
in the voluntary manslaughter statute arises or applies to his case." We agree.
Had Wynes not pled guilty and insisted on proceeding to trial, he would have been
tried for first-degree murder as originally charged. Pursuant to section 565.0299
(formerly section 565.025), "[v]oluntary manslaughter under subdivision (1) of
subsection 1 of section 565.023" is a lesser-included offense of first-degree murder.
Section 565.029.2(1)(b). Subdivision (1) of subsection 1 of section 565.023 provides that
a person commits the offense of voluntary manslaughter if he "[c]auses the death of
another person under circumstances that would constitute murder in the second degree . .
. except that he [] caused the death under the influence of sudden passion arising from
adequate cause." Simply stated, the essential element of sudden passion arising from
adequate cause is unique to voluntary manslaughter, and differentiates the charge from
second-degree murder (itself a lesser-included offense of first-degree murder). State v.
Price, 928 S.W.2d 429, 431 (Mo. App. W.D. 1996).
Nothing in Wynes's statement to the trial court during his guilty plea hearing,
where Wynes explained in his own words the circumstances giving rise to his shooting of
Victim, describes "sudden passion arising from adequate cause." Rather, Wynes
9 All statutory references are to RSMo 2016 and are in a form that was in effect at the time Wynes killed Victim.
18 acknowledged that it was his intent all along while driving Victim around in a car to
cause Victim some harm because he thought Victim was a snitch. In addition, Wynes
offered no testimony or other evidence during the hearing on his Motion suggesting a
factual basis for "sudden passion arising from adequate cause" that would have supported
submitting a voluntary manslaughter instruction to the jury. Though Wynes has
attempted on appeal to connect the incident where Victim drew a gun on his father to a
basis for submitting a voluntary manslaughter instruction, Wynes's father testified that
Wynes was not told about the incident until just before his guilty plea, and that father did
not even appreciate it was Victim who drew a gun on him until after Wynes killed
Victim. It is axiomatic that Victim's purported threat could not have played a role in
Victim's death as Wynes was not aware of the threat at the time he killed Victim. The
motion court did not clearly err in finding that Wynes failed to establish prejudice
because he never demonstrated that he would have been entitled to a voluntary
manslaughter instruction. Watson v. State, 520 S.W.3d 423, 435 (Mo. banc 2017) ("To
prevail on a claim that counsel was ineffective for failing to request a lesser-included
offense instruction, [Wynes] must demonstrate 'the evidence would have required the
trial court to submit the instruction had one been requested. . . .'" (quoting McCrady v.
State, 461 S.W.3d 443, 448 (Mo. App. E.D. 2015))).
Point Two is denied.
19 Conclusion
The Rule 24.035 Judgment is affirmed.
__________________________________ Cynthia L. Martin, Judge
All concur