In the Missouri Court of Appeals Eastern District SOUTHERN DIVISION
RAYMOND F. GARCIA, ) No. ED112359 ) Appellant , ) Appeal from the Circuit Court ) of Cape Girardeau County vs. ) ) Honorable Benjamin F. Lewis STATE OF MISSOURI, ) ) Respondent. ) FILED: December 10, 2024
Raymond F. Garcia (“Movant”) appeals the judgment denying, without an evidentiary
hearing, his Rule 24.0351 amended motion for post-conviction relief. Because Movant wholly
failed to allege the prejudice required to warrant an evidentiary hearing on his claim, we affirm the
motion court’s judgment.
Background
The State originally charged Movant with murder in the first degree, armed criminal action
and burglary following the shooting death of the victim. During plea negotiations, the State offered
to reduce the first-degree murder charge to second-degree murder, recommend a maximum of 25
years in prison on that charge and dismiss the other two charges in exchange for Movant’s guilty
1 All rule references are to the Missouri Supreme Court Rules (2023). plea. Movant accepted the offer and entered an Alford plea2 to second-degree murder. The
plea court sentenced him in accordance with the agreement.
Movant filed a pro se Rule 24.035 motion, and appointed counsel filed an amended motion
alleging that plea counsel was ineffective for failing to “investigate exculpatory and mitigating
evidence.” Movant claimed that plea counsel “made no effort” to locate or contact any of the
witnesses to the shooting. If plea counsel had done so, Movant alleged, she would have discovered
that the victim was armed when Movant shot him “in self-defense.” The amended motion
identified four witnesses to the shooting by name and claimed that “[o]ne, or a combination of,
these witnesses saw the [] victim pull a gun on [Movant].” Movant also averred that one of those
witnesses “took the gun from [the victim’s] body.” The amended motion asserted that “[b]ecause
plea counsel did not contact or interview any witnesses, [Movant] also lacked sufficient knowledge
of the direct consequences of his guilty plea.”
The State filed a motion to dismiss the amended motion. In arguing that an evidentiary
hearing was not necessary, the State contended that Movant’s amended motion failed to make the
required allegation of prejudice since it did not claim that, but for plea counsel’s failure to
investigate, Movant would not have pleaded guilty and would have insisted on proceeding to trial.
The motion court denied Movant’s amended motion without an evidentiary hearing, and this
appeal follows.
Standard of Review
Our review of the denial of a Rule 24.035 motion is limited to determining whether the
motion court’s findings and conclusions are clearly erroneous. Stanley v. State, 420 S.W.3d 532,
2 See North Carolina v. Alford, 400 U.S. 25 (1970).
2 539 (Mo. banc 2014); Rule 24.035(k). We will find clear error only if we are “left with the definite
and firm impression that a mistake has been made.” Stanley, 420 S.W.3d at 539.
Discussion
In his four points on appeal, Movant contends that the motion court clearly erred in denying
his ineffective assistance of counsel claim without an evidentiary hearing. A movant is only
entitled to an evidentiary hearing on a Rule 24.035 motion if (1) he or she alleges facts warranting
relief, (2) those facts are not refuted by the record and (3) the matters complained of resulted in
prejudice. Coates v. State, 939 S.W.2d 912, 914 (Mo. banc 1997). When the claim is based on
ineffective assistance of counsel, the movant must allege facts showing both prongs of the
Strickland test: (1) that counsel’s performance did not conform to the degree of skill, care and
diligence of a reasonably competent attorney and (2) that the movant was thereby prejudiced. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). “If a movant fails to satisfy either the
performance prong or the prejudice prong of the Strickland test, his or her claim fails, and it is not
necessary for a reviewing court to address the other prong.” Coleman v. State, 640 S.W.3d 159,
165 (Mo. App. E.D. 2022). Here, Movant failed to allege any facts showing the requisite prejudice,
and therefore we affirm the motion court’s judgment without addressing his allegations as to plea
counsel’s performance.
In Hill v. Lockhart, 474 U.S. 52, 59 (1985), the United States Supreme Court specified
that, in the context of a guilty plea, the prejudice prong “focuses on whether counsel’s
constitutionally ineffective performance affected the outcome of the plea process.” To establish
the required prejudice, the Court explained, a movant “must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted
3 on going to trial.” Id. If a movant fails to allege this “kind of ‘prejudice’” in his or her motion for
post-conviction relief, then no evidentiary hearing is required. Id. at 60.
Following Hill, our courts have consistently held that a movant seeking post-conviction
relief under Rule 24.035 is not entitled to an evidentiary hearing unless his or her motion alleges
that, but for counsel’s error, the movant would not have pleaded guilty and would have proceeded
to trial. See, e.g., Coates, 939 S.W.2d at 914 (finding that no hearing was required where the
movant “did not allege in his post-conviction motion that, had counsel informed him of the
possibility of consecutive sentences, he would have pleaded not guilty and insisted upon going to
trial”); Stanley, 420 S.W.3d at 544, 549 (finding that no hearing was warranted where the movant
“fail[ed] to allege that he would not have pleaded guilty and would have insisted on going to trial
if counsel had not erred”); Bogard v. State, 356 S.W.3d 850, 855 (Mo. App. W.D. 2012) (finding
that no hearing was necessary where the movant failed to allege that a proper investigation by plea
counsel “would have persuaded him to proceed to trial instead of pleading guilty”).
Here, Movant’s amended motion did not allege that, but for plea counsel’s failure to
investigate the witnesses to the shooting, he would not have pleaded guilty and would have insisted
on proceeding to trial. The amended motion’s only assertion relating to the effect of counsel’s
allegedly deficient performance was that Movant “lacked sufficient knowledge of the direct
consequences of his guilty plea” because plea counsel did not investigate any witnesses. But
Movant did not allege any facts showing what impact his supposed ignorance of those
consequences had on his decision to plead guilty; therefore, he failed to make the required
allegation of prejudice.
Movant contends on appeal that no “magic words” need be used in a Rule 24.035 motion
as long as the allegations “show” or “demonstrate” prejudice. But Movant’s claim does not fail
4 because his amended motion omitted particular words; it fails because he did not include any
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In the Missouri Court of Appeals Eastern District SOUTHERN DIVISION
RAYMOND F. GARCIA, ) No. ED112359 ) Appellant , ) Appeal from the Circuit Court ) of Cape Girardeau County vs. ) ) Honorable Benjamin F. Lewis STATE OF MISSOURI, ) ) Respondent. ) FILED: December 10, 2024
Raymond F. Garcia (“Movant”) appeals the judgment denying, without an evidentiary
hearing, his Rule 24.0351 amended motion for post-conviction relief. Because Movant wholly
failed to allege the prejudice required to warrant an evidentiary hearing on his claim, we affirm the
motion court’s judgment.
Background
The State originally charged Movant with murder in the first degree, armed criminal action
and burglary following the shooting death of the victim. During plea negotiations, the State offered
to reduce the first-degree murder charge to second-degree murder, recommend a maximum of 25
years in prison on that charge and dismiss the other two charges in exchange for Movant’s guilty
1 All rule references are to the Missouri Supreme Court Rules (2023). plea. Movant accepted the offer and entered an Alford plea2 to second-degree murder. The
plea court sentenced him in accordance with the agreement.
Movant filed a pro se Rule 24.035 motion, and appointed counsel filed an amended motion
alleging that plea counsel was ineffective for failing to “investigate exculpatory and mitigating
evidence.” Movant claimed that plea counsel “made no effort” to locate or contact any of the
witnesses to the shooting. If plea counsel had done so, Movant alleged, she would have discovered
that the victim was armed when Movant shot him “in self-defense.” The amended motion
identified four witnesses to the shooting by name and claimed that “[o]ne, or a combination of,
these witnesses saw the [] victim pull a gun on [Movant].” Movant also averred that one of those
witnesses “took the gun from [the victim’s] body.” The amended motion asserted that “[b]ecause
plea counsel did not contact or interview any witnesses, [Movant] also lacked sufficient knowledge
of the direct consequences of his guilty plea.”
The State filed a motion to dismiss the amended motion. In arguing that an evidentiary
hearing was not necessary, the State contended that Movant’s amended motion failed to make the
required allegation of prejudice since it did not claim that, but for plea counsel’s failure to
investigate, Movant would not have pleaded guilty and would have insisted on proceeding to trial.
The motion court denied Movant’s amended motion without an evidentiary hearing, and this
appeal follows.
Standard of Review
Our review of the denial of a Rule 24.035 motion is limited to determining whether the
motion court’s findings and conclusions are clearly erroneous. Stanley v. State, 420 S.W.3d 532,
2 See North Carolina v. Alford, 400 U.S. 25 (1970).
2 539 (Mo. banc 2014); Rule 24.035(k). We will find clear error only if we are “left with the definite
and firm impression that a mistake has been made.” Stanley, 420 S.W.3d at 539.
Discussion
In his four points on appeal, Movant contends that the motion court clearly erred in denying
his ineffective assistance of counsel claim without an evidentiary hearing. A movant is only
entitled to an evidentiary hearing on a Rule 24.035 motion if (1) he or she alleges facts warranting
relief, (2) those facts are not refuted by the record and (3) the matters complained of resulted in
prejudice. Coates v. State, 939 S.W.2d 912, 914 (Mo. banc 1997). When the claim is based on
ineffective assistance of counsel, the movant must allege facts showing both prongs of the
Strickland test: (1) that counsel’s performance did not conform to the degree of skill, care and
diligence of a reasonably competent attorney and (2) that the movant was thereby prejudiced. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). “If a movant fails to satisfy either the
performance prong or the prejudice prong of the Strickland test, his or her claim fails, and it is not
necessary for a reviewing court to address the other prong.” Coleman v. State, 640 S.W.3d 159,
165 (Mo. App. E.D. 2022). Here, Movant failed to allege any facts showing the requisite prejudice,
and therefore we affirm the motion court’s judgment without addressing his allegations as to plea
counsel’s performance.
In Hill v. Lockhart, 474 U.S. 52, 59 (1985), the United States Supreme Court specified
that, in the context of a guilty plea, the prejudice prong “focuses on whether counsel’s
constitutionally ineffective performance affected the outcome of the plea process.” To establish
the required prejudice, the Court explained, a movant “must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted
3 on going to trial.” Id. If a movant fails to allege this “kind of ‘prejudice’” in his or her motion for
post-conviction relief, then no evidentiary hearing is required. Id. at 60.
Following Hill, our courts have consistently held that a movant seeking post-conviction
relief under Rule 24.035 is not entitled to an evidentiary hearing unless his or her motion alleges
that, but for counsel’s error, the movant would not have pleaded guilty and would have proceeded
to trial. See, e.g., Coates, 939 S.W.2d at 914 (finding that no hearing was required where the
movant “did not allege in his post-conviction motion that, had counsel informed him of the
possibility of consecutive sentences, he would have pleaded not guilty and insisted upon going to
trial”); Stanley, 420 S.W.3d at 544, 549 (finding that no hearing was warranted where the movant
“fail[ed] to allege that he would not have pleaded guilty and would have insisted on going to trial
if counsel had not erred”); Bogard v. State, 356 S.W.3d 850, 855 (Mo. App. W.D. 2012) (finding
that no hearing was necessary where the movant failed to allege that a proper investigation by plea
counsel “would have persuaded him to proceed to trial instead of pleading guilty”).
Here, Movant’s amended motion did not allege that, but for plea counsel’s failure to
investigate the witnesses to the shooting, he would not have pleaded guilty and would have insisted
on proceeding to trial. The amended motion’s only assertion relating to the effect of counsel’s
allegedly deficient performance was that Movant “lacked sufficient knowledge of the direct
consequences of his guilty plea” because plea counsel did not investigate any witnesses. But
Movant did not allege any facts showing what impact his supposed ignorance of those
consequences had on his decision to plead guilty; therefore, he failed to make the required
allegation of prejudice.
Movant contends on appeal that no “magic words” need be used in a Rule 24.035 motion
as long as the allegations “show” or “demonstrate” prejudice. But Movant’s claim does not fail
4 because his amended motion omitted particular words; it fails because he did not include any
words indicating that his decision to plead guilty would have been different had counsel
investigated the self-defense witnesses.
Movant nonetheless insists that he was entitled to an evidentiary hearing because “it was
sufficient for [him] to say that his attorney failed to investigate that he acted in self-defense, detail
how she failed to do it, and what she would have discovered had she done so.” According to
Movant, by alleging that plea counsel failed to investigate witnesses who (he claims) would have
provided a “complete defense” at trial, he demonstrated not only that her performance was
objectively unreasonable but also that there was a reasonable probability he would have insisted
on proceeding to trial had counsel conducted the investigation. But “mere allegations of counsel’s
errors are insufficient” to show prejudice. Burks v. State, 768 S.W.2d 98, 100 (Mo. App. W.D.
1988). And none of the cases on which Movant relies say otherwise. In fact, most of the cases he
cites are inapposite because they involved prejudice in the context of counsel’s performance at
trial or during sentencing, not the particular kind of prejudice that must be alleged following a
guilty plea. See Strickland, 466 U.S. at 693-96; Harrington v. Richter, 562 U.S. 86, 111-13 (2011);
Deck v. State, 68 S.W.3d 418, 425 (Mo. banc 2002); Rush v. State, 366 S.W.3d 663, 666-67 (Mo.
App. E.D. 2012).
The remaining cases relied on by Movant are equally unavailing. He cites to Kulhanek v.
State, 560 S.W.3d 94, 99 (Mo. App. E.D. 2018), which did involve a guilty plea but is otherwise
distinguishable because the motion in that case included an adequate allegation of prejudice: that,
“but for” counsel’s failure to discuss the possibility of seeking a voluntary manslaughter
instruction at trial, the movant “would not have pled guilty and would have proceeded to trial.”
Also inapposite is Hefley v. State, 626 S.W.3d 244, 250 (Mo. banc 2021), where the movant proved
5 prejudice at the evidentiary hearing by testifying that he would not have pleaded guilty but for
counsel’s misrepresentation about sentencing. That case, of course, has no bearing on whether the
allegations in Movant’s amended motion were sufficient to warrant a hearing in the first place.
And, finally, Movant mistakenly relies on the following excerpt from Hill:
For example, where the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error “prejudiced” the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial.
474 U.S. at 59. Nothing in this passage—or any other part of the Hill opinion, for that matter—
supports Movant’s proposition that, in lieu of an allegation of facts adequately showing prejudice,
a movant may simply allege a failure to investigate potentially exculpatory evidence and obtain an
evidentiary hearing.
In sum, because Movant’s amended motion failed to include allegations showing the
requisite prejudice, he was not entitled to an evidentiary hearing, and the learned judge presiding
over this matter properly denied his claim without one. All points on appeal are denied.
Conclusion
For the foregoing reasons, the judgment is affirmed.
_______________________________ MICHAEL E. GARDNER, Judge
Thomas C. Clark II, C.J., concurs. Gary M. Gaertner, Jr., J., concurs.