In the Missouri Court of Appeals Western District
PATRICK M. SYMINGTON, ) Appellant, ) WD83902 v. ) ) STATE OF MISSOURI, ) FILED: December 21, 2021 Respondent. )
APPEAL FROM THE CIRCUIT COURT OF BUCHANAN COUNTY THE HONORABLE PATRICK K. ROBB, JUDGE
BEFORE DIVISION THREE: LISA WHITE HARDWICK, PRESIDING JUDGE, GARY D. WITT AND EDWARD R. ARDINI, JR., JUDGES
Patrick Symington appeals the denial of his Rule 29.15 motion after he was
convicted of enticement of a child. He contends the motion court erred in not
allowing him to testify in person during the evidentiary hearing. For reasons
explained herein, we affirm.
FACTUAL AND PROCEDURAL HISTORY
The State charged Symington with committing the felony of enticement of a
child for soliciting a 14-year-old girl by suggesting in a Facebook message that
she come over to his house, and that he did so for the purpose of engaging in
sexual conduct with her. Before trial, Symington filed a signed, written waiver of
his right to a jury trial and a request for a bench trial. In a pretrial hearing, the court explained to Symington in detail the jury trial process, including the
selection of jurors, jury instructions, and the requirement of jury unanimity, and
the similarities and differences between a jury trial and a bench trial. The court
then questioned Symington about his decision to waive his right to a jury trial:
THE COURT: All right. And so knowing all of this, knowing what a jury trial is involved and what a court trial is involved [sic]— and I assume you’ve discussed these kind of issues with [defense counsel]. Is that correct?
THE DEFENDANT: Yes, Your Honor.
THE COURT: All right. And is it your decision to waive your right to a trial by jury and have the Court make those decisions?
THE COURT: All right. Has anyone promised you anything—
THE DEFENDANT: No, Your Honor.
THE COURT: --or threatened you in any way to get you to do that?
THE COURT: Is this a voluntary decision on your part?
THE DEFENDANT: Yes, it is.
THE COURT: All right. Was [defense counsel] willing to try the case to a jury trial [sic] if you wanted to go to a jury trial?
THE DEFENDANT: Absolutely. It’s been discussed very thoroughly.
2 THE COURT: Okay. So this has been some matter that’s not something you just came up with. This is something you’ve been discussing and thinking about?
THE COURT: All right. Anything else you want to add, Mr. Symington, regarding your decision?
THE DEFENDANT: No.
The court then found that Symington had voluntarily and knowingly waived
his right to a jury trial. After the court announced its intention to proceed with a
bench trial, defense counsel informed the court that the prosecutor had promised
that she would not file any additional charges against Symington concerning the
victim or another witness in the case in exchange for Symington’s waiver of his
right to a jury trial. The prosecutor confirmed that the defense had approached
her and offered to waive Symington’s right to a jury trial in exchange for her not
filing any additional charges, and she had agreed.
A bench trial was held. The court found Symington guilty of enticement of
a child and sentenced him to eight years in prison. We affirmed his conviction
and sentence on direct appeal in a per curiam order. State v. Symington, 548
S.W.3d 921 (Mo. App. 2017).
Symington filed a pro se Rule 29.15 motion, which was later amended by
appointed counsel. In his amended motion, Symington alleged, inter alia, that
defense counsel was ineffective for utilizing “scare tactics to force [him] into
3 waiving a jury trial.” He asserted that, if he had not been threatened, he would
have demanded a jury trial and that it was reasonably probable that the outcome
of the trial would have been different.
The motion court granted Symington’s request for an evidentiary hearing.
The court ordered, however, that Symington not be transported back to Buchanan
County for the hearing but that his testimony be presented by deposition pursuant
to Rule 29.15(i). Symington filed six exhibits in support of his Rule 29.15 motion,
including his deposition testimony and an affidavit requesting to appear in person
for the hearing and asserting that the failure to honor his request would violate
his right to due process. In his deposition, Symington testified that defense
counsel told him that it was in his best interest to have a bench trial because the
State was considering charging him with a second count of enticement involving
a different victim. He also testified that defense counsel told him that a second
charge would increase the range of punishment from five to 30 years in prison to
10 to 60 years in prison. Symington stated that he did not want to waive his right
to a jury trial but did so “in a state of fear” and “under duress.” The State did not
offer any evidence.
The motion court entered its judgment denying Symington’s Rule 29.15
motion. The court found that Symington’s claim that he was forced to waive his
right to a jury trial was refuted by his signed, written waiver of his right to a jury
trial and request for a bench trial and his statements to the court in support of his
written waiver during the pretrial hearing. Symington appeals.
4 STANDARD OF REVIEW
We review the denial of a post-conviction motion for clear error. Rule
29.15(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. Shockley v. State, 579 S.W.3d 881, 892 (Mo. banc 2019). We
presume the motion court’s findings and conclusions are correct. Id.
ANALYSIS
In his sole point on appeal, Symington contends the motion court clearly
erred in denying his jury trial waiver claim in his Rule 29.15 motion because it did
not allow him to testify in person at the evidentiary hearing. Rule 29.15(i)
specifically states that a movant “need not be present” during the evidentiary
hearing and allows the motion court to order that the movant’s testimony “be
received by deposition.” Symington argues, however, that the court’s decision
not to allow him to testify in person violated his right to due process. He asserts
that, to decide his jury trial waiver claim, the motion court was required to weigh
his credibility at two different times – when he waived his right to a jury trial
during the pretrial hearing and when he was supporting his Rule 29.15 claim – and
the court could not properly do so without observing him testify in person at the
evidentiary hearing.
To support his contention that his right to due process was violated,
Symington relies on the principle stated in Beckwith v. Giles, 32 S.W.3d 659, 663
5 (Mo. App. 2000), that due process may require an incarcerated litigant’s personal
attendance in a civil matter “where there are no reasonable alternatives to access
the court and a substantial and irreparable prejudice will result from the failure to
attend the proceedings.” What Symington fails to acknowledge is that one of the
“reasonable alternatives” to personal attendance that the court in Beckwith noted
with approval is the incarcerated litigant’s “conventional deposition” testimony.
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In the Missouri Court of Appeals Western District
PATRICK M. SYMINGTON, ) Appellant, ) WD83902 v. ) ) STATE OF MISSOURI, ) FILED: December 21, 2021 Respondent. )
APPEAL FROM THE CIRCUIT COURT OF BUCHANAN COUNTY THE HONORABLE PATRICK K. ROBB, JUDGE
BEFORE DIVISION THREE: LISA WHITE HARDWICK, PRESIDING JUDGE, GARY D. WITT AND EDWARD R. ARDINI, JR., JUDGES
Patrick Symington appeals the denial of his Rule 29.15 motion after he was
convicted of enticement of a child. He contends the motion court erred in not
allowing him to testify in person during the evidentiary hearing. For reasons
explained herein, we affirm.
FACTUAL AND PROCEDURAL HISTORY
The State charged Symington with committing the felony of enticement of a
child for soliciting a 14-year-old girl by suggesting in a Facebook message that
she come over to his house, and that he did so for the purpose of engaging in
sexual conduct with her. Before trial, Symington filed a signed, written waiver of
his right to a jury trial and a request for a bench trial. In a pretrial hearing, the court explained to Symington in detail the jury trial process, including the
selection of jurors, jury instructions, and the requirement of jury unanimity, and
the similarities and differences between a jury trial and a bench trial. The court
then questioned Symington about his decision to waive his right to a jury trial:
THE COURT: All right. And so knowing all of this, knowing what a jury trial is involved and what a court trial is involved [sic]— and I assume you’ve discussed these kind of issues with [defense counsel]. Is that correct?
THE DEFENDANT: Yes, Your Honor.
THE COURT: All right. And is it your decision to waive your right to a trial by jury and have the Court make those decisions?
THE COURT: All right. Has anyone promised you anything—
THE DEFENDANT: No, Your Honor.
THE COURT: --or threatened you in any way to get you to do that?
THE COURT: Is this a voluntary decision on your part?
THE DEFENDANT: Yes, it is.
THE COURT: All right. Was [defense counsel] willing to try the case to a jury trial [sic] if you wanted to go to a jury trial?
THE DEFENDANT: Absolutely. It’s been discussed very thoroughly.
2 THE COURT: Okay. So this has been some matter that’s not something you just came up with. This is something you’ve been discussing and thinking about?
THE COURT: All right. Anything else you want to add, Mr. Symington, regarding your decision?
THE DEFENDANT: No.
The court then found that Symington had voluntarily and knowingly waived
his right to a jury trial. After the court announced its intention to proceed with a
bench trial, defense counsel informed the court that the prosecutor had promised
that she would not file any additional charges against Symington concerning the
victim or another witness in the case in exchange for Symington’s waiver of his
right to a jury trial. The prosecutor confirmed that the defense had approached
her and offered to waive Symington’s right to a jury trial in exchange for her not
filing any additional charges, and she had agreed.
A bench trial was held. The court found Symington guilty of enticement of
a child and sentenced him to eight years in prison. We affirmed his conviction
and sentence on direct appeal in a per curiam order. State v. Symington, 548
S.W.3d 921 (Mo. App. 2017).
Symington filed a pro se Rule 29.15 motion, which was later amended by
appointed counsel. In his amended motion, Symington alleged, inter alia, that
defense counsel was ineffective for utilizing “scare tactics to force [him] into
3 waiving a jury trial.” He asserted that, if he had not been threatened, he would
have demanded a jury trial and that it was reasonably probable that the outcome
of the trial would have been different.
The motion court granted Symington’s request for an evidentiary hearing.
The court ordered, however, that Symington not be transported back to Buchanan
County for the hearing but that his testimony be presented by deposition pursuant
to Rule 29.15(i). Symington filed six exhibits in support of his Rule 29.15 motion,
including his deposition testimony and an affidavit requesting to appear in person
for the hearing and asserting that the failure to honor his request would violate
his right to due process. In his deposition, Symington testified that defense
counsel told him that it was in his best interest to have a bench trial because the
State was considering charging him with a second count of enticement involving
a different victim. He also testified that defense counsel told him that a second
charge would increase the range of punishment from five to 30 years in prison to
10 to 60 years in prison. Symington stated that he did not want to waive his right
to a jury trial but did so “in a state of fear” and “under duress.” The State did not
offer any evidence.
The motion court entered its judgment denying Symington’s Rule 29.15
motion. The court found that Symington’s claim that he was forced to waive his
right to a jury trial was refuted by his signed, written waiver of his right to a jury
trial and request for a bench trial and his statements to the court in support of his
written waiver during the pretrial hearing. Symington appeals.
4 STANDARD OF REVIEW
We review the denial of a post-conviction motion for clear error. Rule
29.15(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. Shockley v. State, 579 S.W.3d 881, 892 (Mo. banc 2019). We
presume the motion court’s findings and conclusions are correct. Id.
ANALYSIS
In his sole point on appeal, Symington contends the motion court clearly
erred in denying his jury trial waiver claim in his Rule 29.15 motion because it did
not allow him to testify in person at the evidentiary hearing. Rule 29.15(i)
specifically states that a movant “need not be present” during the evidentiary
hearing and allows the motion court to order that the movant’s testimony “be
received by deposition.” Symington argues, however, that the court’s decision
not to allow him to testify in person violated his right to due process. He asserts
that, to decide his jury trial waiver claim, the motion court was required to weigh
his credibility at two different times – when he waived his right to a jury trial
during the pretrial hearing and when he was supporting his Rule 29.15 claim – and
the court could not properly do so without observing him testify in person at the
evidentiary hearing.
To support his contention that his right to due process was violated,
Symington relies on the principle stated in Beckwith v. Giles, 32 S.W.3d 659, 663
5 (Mo. App. 2000), that due process may require an incarcerated litigant’s personal
attendance in a civil matter “where there are no reasonable alternatives to access
the court and a substantial and irreparable prejudice will result from the failure to
attend the proceedings.” What Symington fails to acknowledge is that one of the
“reasonable alternatives” to personal attendance that the court in Beckwith noted
with approval is the incarcerated litigant’s “conventional deposition” testimony.
Id.
Furthermore, Symington cites no authority for his assertion that his
deposition testimony was not a reasonable alternative because the motion court
could not properly judge his credibility unless it observed him testify in person.
The motion court’s authority to assess deposition testimony is no different from
its authority to assess in-person testimony. See Durst v. State, 584 S.W.3d 817,
820-21 (Mo. App. 2019). “In exercising its fact-finding function, the motion court
[is] free to consider, evaluate, and determine the credibility of [m]ovant’s
evidence, in whatever form offered and admitted, and this court defers to that
function and those determinations.” Id. at 821 (emphasis added). The motion
court in this case implicitly found Symington’s written jury trial waiver and his
statements to the court in support of that waiver during the pretrial hearing to be
more credible than his postconviction deposition testimony, and we defer its
6 decision to do so.1 The motion court did not clearly err in denying Symington’s
Rule 29.15 motion.
CONCLUSION
The judgment is affirmed.
____________________________________ LISA WHITE HARDWICK, JUDGE ALL CONCUR.
1 Symington notes that, in its judgment, the motion court restated his pretrial hearing testimony regarding his jury trial waiver, did not discuss his deposition testimony, and did not mention credibility. The motion court’s reliance on Symington’s pretrial hearing testimony indicates that it found that testimony more credible than his deposition testimony. We defer to the circuit court’s credibility determinations, both explicit and implicit. See Am. Eagle Waste Indus., LLC v. St. Louis Cty., Mo., 463 S.W.3d 11, 27 (Mo. App. 2015) (citing In re Marriage of Mapes, 848 S.W.2d 634, 638 (Mo. App. 1993), for the proposition that the court’s judgment “can reveal the court’s implicit credibility determinations” to which appellate courts must defer).