Jerrell J. Bell v. State of Missouri , 497 S.W.3d 880 ( 2016 )

In the Missouri Court of Appeals
Eastern District
DIVISION ONE
JERRELL J. BELL, ) ED103398
)
Appellant, ) Appeal from the Circuit Court of
) St. Louis County
v. ) 13SL-CC02474
)
STATE OF MISSOURI, ) Honorable Colleen Dolan
)
Respondent. ) Filed: September 6, 2016
INTRODUCTION
Jerrell J. Bell ("Defendant") appeals from the denial of his Rule 24.035 motion for post-
conviction relief without an evidentiary hearing. We affirm.
BACKGROUND
On January 25, 2011, Reginald Gillespie and Jerome Streeter were standing near the
corner of Shepley Drive and Lilac Drive in St. Louis County. Defendant shot at Mr. Gillespie,
intending to hit him, but missed. Instead, the bullet hit Mr. Streeter, seriously injuring him.
Defendant was charged with one count of felony assault in the first degree, as a class A
felony, and one count of armed criminal action. On November 2, 2011, attorney Christine
Goulet ("Plea Counsel") entered her appearance on behalf of Defendant.
On April 11, 2013, Defendant appeared in court with Plea Counsel and pleaded guilty—
pursuant to a plea agreement—to the felony assault charge.1 During the hearing, the court found
no probable cause to indicate that Plea Counsel was ineffective. Defendant received a twelve
year sentence.
Defendant timely filed both his pro se and amended motion for post-conviction relief per
Rule 24.035,2 which the court denied without an evidentiary hearing.
This appeal follows.
DISCUSSION
Defendant submits two points on appeal, asserting in each that the motion court clearly
erred in denying his motion for post-conviction relief without an evidentiary hearing, thereby
depriving him of his right to due process of law and effective assistance of counsel as guaranteed
by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I,
sections 10 and 18(a) of the Missouri Constitution, as well as his right to be free of cruel and
unusual punishment under the Eighth Amendment to the United States Constitution.
Specifically, Defendant contends that (I) the trial court clearly erred in accepting Defendant's
guilty plea on the class A felony without a sufficient factual basis, and (II) Plea Counsel was
ineffective in brokering and recommending the plea deal containing the class A felony, and but
for Plea Counsel's acts, the results of his proceedings would have been different.
1
As part of the plea agreement, the Armed Criminal Action count was dismissed.
2
Defendant filed his pro se motion for post-conviction relief on July 5, 2013, and the court appointed the Missouri
State Public Defender's Office to represent him. Defendant's amended motion was due Sunday, September 22,
therefore Defendant was granted until Monday, September 23 to either file an amended motion or request an
extension. On that day, attorney Amy Lowe entered her appearance and requested an additional thirty days to file an
amended motion, which the court granted until October 22 and on which date Ms. Lowe faxed the amended motion
to the court in compliance with St. Louis County Local Rule 3.5. Therefore, Defendant's motion was timely filed.
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Point I – No Clear Error by Trial Court in Accepting Defendant's Guilty Plea
Defendant first contends that the trial court clearly erred in accepting Defendant's guilty
plea on the class A felony without a sufficient factual basis. We disagree.
Standard of Review
Appellate review of the denial of a Rule 24.035 motion is limited to determining whether
the trial court’s findings and conclusions are clearly erroneous. See Rule 24.035(k). The motion
court's findings and conclusions will be deemed clearly erroneous only if a review of the entire
record leaves this court with the definite and firm impression that a mistake has been made.
Chipman v. State, 274 S.W.3d 468, 471 (Mo. App. S.D. 2008); see also Weeks v. State, 140
S.W.3d 39, 44 (Mo. banc 2004). Defendant's burden is by a preponderance of the evidence.
Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009). Appellate review in post-conviction
cases is not de novo; rather, the findings of fact and conclusions of law are presumptively
correct. Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991).
Analysis
"The court shall not enter a judgment upon a plea of guilty unless it determines that there
is a factual basis for the plea." Rule 24.02(e). The factual basis is necessary to ensure that the
guilty plea was intelligently and voluntarily entered, thereby satisfying due-process
requirements. O'Neal v. State, 236 S.W.3d 91, 95 (Mo. App. E.D. 2007); see also Rule 24.02(c)
("The court shall not accept a plea of guilty without first . . . determining that the plea is
voluntary and not the result of force or threats or of promises apart from a plea agreement."). A
factual basis exists if the defendant understands the facts presented at the guilty-plea proceeding,
and those facts establish the commission of the charged crime. Id. at 96. The required factual
basis can be established by the defendant's testimony, or his acknowledgment of facts recited by
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the prosecutor. Id. at 95-96. So long as a defendant understands the nature of the charges
against him, trial courts are not required to explain every element of the crime. Id.
"Relief under [Rule 24.02] is available only for an error of law that is jurisdictional,
constitutional, or constitutes a fundamental defect which inherently results in a complete
miscarriage of justice." Schuerenberg v. State, 98 S.W.3d 922, 923-24 (Mo. App. S.D. 2003).
Rule 24.02(e) is not constitutionally based; rather, its purpose is to aid in the constitutionally
required determination that a defendant enter his or her plea of guilty intelligently and
voluntarily. Id.; see also Price v. State, 137 S.W.3d 538, 541 (Mo. App. S. D. 2004) ("Rule
24.02 is patterned after Fed. R. Crim. P. 11, [therefore] federal precedents are strong, persuasive
authority when applying Missouri's rules."). Rule 24.02(e) serves as protection for “an accused
who may appear to be pleading voluntarily and with an understanding of the nature of the
charge, but who does so without realizing that his conduct does not actually fall within the
charge.” Chipman, 274 S.W.3d at 472; quoting Price, 137 S.W.3d at 541-542; see also
McCarthy v. U.S., 394 U.S. 459, 467, (1969) (superseded on other grounds by rule amendment).
Here, the Defendant has not met his burden to show he made an unknowing or
involuntary plea because, after a review of the relevant statutory provisions and prior case law,
there are clear indications that Defendant's conduct fits the charge of First Degree Assault as a
Class A Felony.
Section 565.050 (RSMo 2000) reads as follows:
1. A person commits the crime of assault in the first degree if he attempts to kill or
knowingly causes or attempts to cause serious physical injury to another person.
2. Assault in the first degree is a class B felony unless in the course thereof the actor
inflicts serious physical injury on the victim in which case it is a class A felony.
Defendant was charged with First Degree Assault for knowingly attempting to cause serious
physical injury to Mr. Gillespie. Defendant admitted to these facts at his guilty plea hearing,
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which would undeniably make him guilty of the class B felony of assault in the first degree.
However, Defendant missed Mr. Gillespie and seriously injured a bystander, Mr. Streeter.3
Under these facts, the State charged Defendant with a Class A felony, and Defendant pleaded
guilty to the heightened charge.4 Defendant stated he understood the full range of punishment
for the Class A charge, that the State was seeking a twelve year sentence, and that he was
"entering this plea of guilty voluntarily and of your own free will because you are guilty as
charged."
Defendant now contends that he could not have intelligently and voluntarily pled to the
Class A level felony, solely because the statute demands the intended target and the person
actually wounded be one in the same. We disagree.
In State v. Scott, 769 S.W.2d 149, 151 (Mo. App. S.D. 1989), Evans and his friends were
socializing in a club when they heard defendant Scott was insulting them. Evans confronted
Scott, and they scuffled. Scott pulled a gun and shot Evans in the head. He then shot into the
background—in the direction of Evans' friends. Scott did not hit any of Evans' friends, but
instead hit an unrelated bystander, McGowan. The state charged Scott with, inter alia, First
Degree Assault as a Class A Felony because McGowan was seriously injured. On appeal, the
Southern District stated that "[i]t could be inferred from Scott's conduct that he intended to cause
harm to someone with Evans," and therefore the Class A Felony could stand.
Scott relied on State v. Arellano, 736 S.W.2d 432 (Mo. App. W.D. 1987), which
similarly allowed for the Class A Felony First Degree Assault, stating "[t]he defendant's intent
toward the target is transferred to the bystander for the purpose of fixing the grade of the
offense." Arellano in turn relied on two murder cases, wherein transferred intent has long been
3
The severity of Streeter's injury is not disputed.
4
The punishment for the Class A felony is 10-30 years, and for the Class B felony the punishment is 5-15 years.
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allowed, because "the intention follows the bullet". See State v. Mannon, 663 S.W.2d 780, 782
(Mo. App. S.D. 1983); State v. Eiland, 534 S.W.2d 814, 817 (Mo. App. St. Louis Dist. 1976).
The Missouri Legislature has codified transferred intent for murder cases as RSMo 565.003,
which reads:
The culpable mental state necessary for a homicide offense may be found to exist if the
only difference between what actually occurred and what was the object of the offender's
state of mind is that a different person or persons were killed.
Therefore, by utilizing the legal fiction of transferred intent, the defendant's in Arellano, Scott
and this case could all be charged with the Class A felony even though they missed their
intended target and hit an innocent bystander.
Defendant correctly recognizes that Missouri has not codified transferred intent for non-
homicide cases, and further points to case law that purportedly supports his position. At best,
Defendant's arguments demonstrate a divided history on the complained about issue.
In State v. Mulhall, 97 S.W. 583 (Mo. 1906), defendant shot at Reed, intending to kill
him, but instead hit Morgan. The State charged defendant with assault with intent to kill
Morgan, arguing that defendant's intent to kill Reed should transfer to Morgan; the jury
instructions so provided.5 The jury found defendant guilty, but the Missouri Supreme Court
ultimately reversed, stating in relevant part:
It is clear that under that provision of the statute, there are two essential elements
necessary to constitute such offense. First, that the defendant shot at [Morgan], and
second that he did so with intent to kill him, and before a conviction can be had upon this
charge, it is incumbent upon the state to establish by the proof both elements of such
offense. It is not enough that the defendant shot at [Morgan], but as well that at the time
5
Mulhall was charged under section 1847, Rev. St. 1899, which reads in relevant part "Every person who shall, on
purpose and of malice aforethought, shoot at or stab another, or assault or beat another with a deadly weapon, or by
any other means or force likely to produce death or great bodily harm, with intent to kill, maim, ravish, or rob such
person . . . shall be punished by imprisonment in the penitentiary not exceeding ten years.”
The trial court gave the following instruction to the jury: "if a man with intent to kill one person willfully,
unlawfully, and on purpose, and of his malice aforethought shoots to accomplish such intent, but, as a matter of fact,
the bullet flies towards and strikes and wounds another whom he did not intend to injure, he is guilty of the same
offense as though the bullet had struck and wounded the one whom he intended to kill."
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of such shooting he intended to kill him. The fact that [Morgan] was seriously wounded,
and such wound may have been occasioned by a shot from the pistol of the defendant,
yet, the fact that he was so wounded must not be confounded with the essential elements
to constitute the offense with which he is charged . . . [unless defendant] shot at [Morgan]
with the intent to kill him, then there can be no conviction for an assault with intent to
kill.
Id. at 586-587. See also State v. Williamson (Mo. 1907) (Defendant shot at an intended target,
but instead hit a ten-year-old newsboy standing in the background, conviction reversed where
defendant was charged with assault with intent to kill the newsboy); Cf. State v. Montgomery, 3
S.W. 379 (Mo. 1887) ("The evidence was properly admitted, for it is well settled that if, with a
felonious intent, A shoots at B to kill him, and misses B, and wounds C, that the law transfers the
felonious intent with which the ball started, from B to C.").
In fact, Defendant presents no modern cases that support his arguments. England v.
State, 85 S.W.3d 103 (Mo. App. W.D. 2002) is inapposite, as that case turned on whether the
defendant could be charged with first degree assault as a class B felony, or instead should have
been charged with a lesser degree. See also State v. Kester, 201 S.W. 62 (Mo. 1918) (Where
defendant shot into a home, the bullet struck wife, but no evidence was presented that defendant
intended to shoot wife, assault with intent to kill conviction was reversed. "At worst the act was
characterized by a spirit of ruffianism and indifference to results which richly merit punishment
under the proper proceeding, [which is the culpable negligence assault statute].").
At Defendant's PCR hearing, the motion court relied on Scott for purposes of fixing the
grade of the offense. Defendant has not met his burden demonstrating that the motion court's
findings and conclusions are clearly erroneous such that we are left with the definite and firm
impression that a mistake has been made. Point I is denied.
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Point II – Plea Counsel Not Ineffective for Advising Defendant to Take Class A Plea.
Defendant contends that Plea Counsel was ineffective in brokering and recommending
the plea deal containing the class A felony, and but for Plea Counsel's acts, the results of his
proceedings would have been different.
Standard of Review
To be entitled to an evidentiary hearing on a post-conviction relief claim, a movant must:
(1) allege facts, not conclusions, which, if true, would warrant relief; (2) the facts alleged must
raise matters not refuted by the record and files in the case; and (3) the matters complained of
must have resulted in prejudice to the movant. Roberts, 276 S.W.3d at 835. An evidentiary
hearing is not required if the case files and record conclusively show the movant is not entitled to
relief. See Rule 29.15(h).
Since Defendant seeks an evidentiary hearing concerning Plea Counsel's alleged
ineffective assistance, he must demonstrate that "counsel's conduct so undermined the proper
functioning of the adversarial process that the trial cannot be relied on as having produced a just
result." Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to meet this standard,
Defendant must show that (1) counsel failed to conform his representation to the degree of skill,
care, and diligence of a reasonably competent attorney under similar circumstances and (2) he
was prejudiced as a result. Id.; Sanders v. State, 738 S.W.2d 856, 857–58 (Mo. banc 1987).
Defendant must establish the first prong of Strickland by a preponderance of the
evidence. See Rule 29.15(i). However, the burden is a heavy one, in that "the movant must
overcome a strong presumption that counsel provided competent assistance." Deck v. State, 68
S.W.3d 418, 425-426 (Mo. banc 2002). Counsel's representation must have fallen below "an
objective standard of reasonableness." Strickland, 466 U.S. at 688. Defendant must therefore
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"identify specific acts or omissions of counsel that resulted from unreasonable professional
judgment, and the 'court must determine whether, in light of all the circumstances, the identified
acts or omissions were outside the wide range of professional competent assistance.'" Deck, 68
S.W.3d at 426 (quoting Strickland 466 U.S. at 690).
We have already decided in Point I that no clear error as a matter of law exists regarding
the issuance of the class A felony; it follows that Plea Counsel is not ineffective for
recommending Defendant take the plea. See, e.g., Johnson v. State, 140 S.W.3d 161 (Mo. App.
S.D. 2004) (Where counsel was correct in stating that possession of methamphetamine residue
was sufficient to support a conviction, defense counsel was not ineffective in advising defendant
to plead guilty to possession, as "[i]t is axiomatic that a guilty-plea counsel cannot be considered
ineffective when he or she gives correct advice to an accused.").
Further, Defendant testified that he had enough time to discuss the case with Plea
Counsel, and that Plea Counsel answered all of Defendant's questions and did everything
Defendant asked. We therefore find Defendant's claim for ineffective assistance wholly refuted
by the record. Point II is denied.
CONCLUSION
The judgment of the trial court is affirmed.
___________________________________
Lisa P. Page, Judge
Robert M. Clayton III, P.J., and Mary K. Hoff, J. CONCUR.
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