Moore v. State

39 S.W.3d 888, 2001 Mo. App. LEXIS 577, 2001 WL 290572
CourtMissouri Court of Appeals
DecidedMarch 27, 2001
DocketNo. 23733
StatusPublished
Cited by6 cases

This text of 39 S.W.3d 888 (Moore 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
Moore v. State, 39 S.W.3d 888, 2001 Mo. App. LEXIS 577, 2001 WL 290572 (Mo. Ct. App. 2001).

Opinion

SHRUM, Judge

Eddie Moore (“Movant”) appeals the denial of his motion for post-conviction relief. After entering a plea of guilty, Movant timely filed both a pro se and amended motion for post-conviction relief pursuant to Rule 24.035.1 An evidentiary hearing was held wherein Movant’s request was denied. The motion court’s denial of such relief is not clearly erroneous. We affirm the judgment of the motion court.

Movant was charged with the Class C felony of possession of more than thirty-five grams of marijuana, a controlled substance, under § 195.202.2. Movant was also charged as a prior and persistent offender under § 558.016.3. The marijuana was found during a search of Movant’s home executed pursuant to a search warrant which Movant now alleges was based, in whole or in part, upon information supplied to the police from a confidential informant. Movant filed a motion to suppress evidence which was denied. Thereafter, Movant pleaded guilty to the possession charge. A pre-sentence investigation report was ordered, and meanwhile, Movant was remanded to the county jail.

While in jail awaiting sentencing, Mov-ant shared a cell with Jeremy Pearson (“Pearson”). After Pearson told Movant that he (Pearson) was a confidential informant in Movant’s case, Movant contacted his attorney. Movant’s attorney interviewed Pearson. The next day at the sentencing hearing, Movant attempted to withdraw his guilty plea based on this new information. His declared intent was to again challenge the search warrant because he believed that information given by Pearson to police officers was the basis for the search warrant application. With that as his premise, Movant argued the warrant was based on a faulty affidavit as Pearson had not established a reputation with the police as a reliable source. Mov-ant’s request to withdraw his guilty plea was denied, however, and the court sentenced Movant to ten years’ imprisonment.

Once he was incarcerated, Movant filed the instant motion. In his motion, Movant [891]*891alleged his counsel was ineffective for inducing him to plead guilty without interviewing Pearson, the supposed confidential informant used in Movant’s case. In this regard, Movant alleged: (1) the information received from Pearson called into question the validity of the search warrant used to gather evidence against him; (2) that before learning about Pearson’s role in his case, Movant’s lawyer assured him the State’s case against him was “solid,” when in fact it was not; (3) during the sentencing hearing, his lawyer stated “he would not have advised [Mjovant to plead had he known about the confidential infor-mante;]” and (4) but for his lawyer’s “incorrect information,” Movant would not have pleaded guilty and would have gone to trial. On another issue, Movant alleged his lawyer was ineffective for promising he would only receive a seven-year sentence and representing to Movant that if his sentence was more than seven years, the court would allow him to withdraw the plea.

At the trial of Movant’s Rule 24.035 motion, Pearson testified he was sent by the police to purchase “weed” from Mov-ant in exchange for “not going to jail” on charges related to a breaking and entering incident. Pearson stated he only had contact with Movant on two occasions, and this was the only “work” he had ever done with the police.

Movant’s plea counsel was Kent Hall. He testified to the following factual discussion. Hall was assigned to Movant’s case after another public defender (Patrick McMenamin) withdrew because he and Movant were not “communicating well.” Although Hall did some investigation after taking over the case, he did not realize from reading the police reports that the police had used a confidential informant. As Hall explained:

“That did not jump out at me. I reviewed the police reports, and it appeared to me that the — I know that Pat McMenamin had already filed a motion to suppress physical evidence on the basis of an illegal search and that had been ruled upon. And I didn’t feel the need to go back and revisit those issues because it was pretty much an all-encompassing motion alleging any possible grounds.
“And I also recall ... that the report generated by the Sikeston DPS prior to the search warrant being issued ... indicated that sales had been made to undercover officers as opposed to a confidential informant.”

After Movant told Hall of Pearson’s alleged role in the case, Hal went to the jal and interviewed Pearson. From this interview, Hal concluded Pearson probably had no “track record of reliablity” and, consequently, thought “perhaps we had dropped the ball by not learning of him earlier, investigating, doing whatever we could to turn him up.” This concern was the reason Hall asked the sentencing court to alow Movant to withdraw his guilty plea just before Movant’s sentencing. In seeking to withdraw Movant’s gulty plea, Hal recaled telling the sentencing court “that the affidavit in support of the search warrant does represent that the Confidential Informant No. 152 had a reliable track record with the police department,” yet Hall “had not investigated this further to verify whether or not Mr. Pearson is the confidential informant here.” Regarding his falure to file a motion requesting the identity of “confidential informant 152,” Hall explained that prior to Movant’s plea there was no known issue concerning the confidential informant. He testified, “I didn’t have any evidence to make me think that there was a problem with the affidavit — the truthfulness of that part of the affidavit or the confidential informant.” Hall specifically denied ever telling Mov-ant that he had talked with the judge and prosecutor and obtained assurances from them that Movant’s sentence would be seven years if he pleaded guilty.

After the motion court denied Movant’s Rule 24.035 motion, Movant filed this appeal. He claims the motion court erred in [892]*892not finding his counsel ineffective for (1) failing to investigate the issues surrounding the confidential informant, and (2) assuring Movant he would receive a particular sentence of not more than seven years.

Appellate review of a denial of a Rule 24.035 motion is limited to determining whether the findings and conclusions of the motion court are clearly erroneous. Rule 24.035(k); Cole v. State, 2 S.W.3d 833, 834 (Mo.App.1999). The findings and conclusions are clearly erroneous if, after a review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made. State v. Roll, 942 S.W.2d 370, 375 (Mo.banc 1997).

To prevail on a claim of ineffective assistance of counsel, a movant must show: First, that trial counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances; and, second, that counsel’s deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed.2d 674 (1984). This prejudice is shown where “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct.

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Bluebook (online)
39 S.W.3d 888, 2001 Mo. App. LEXIS 577, 2001 WL 290572, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-state-moctapp-2001.