Kennicutt v. State , 537 S.W.3d 347 ( 2017 )

Thomas H. Newton, Judge

Mr. Rickey Kennicutt - appeals the motion court’s judgment denying the Rule 24.035 amended motion for post-conviction relief without an evidentiary hearing in the Circuit Court of Lafayette County, Missouri. Mr. Kennicutt was sentenced to ten years in prison for first-degree child molestation ¹ after he plead guilty on September 22,2014. We affirm.

During the guilty-plea hearing, Mr. Ken-nicutt admitted that he “knowingly subjected [victim], who was then less than 14 years of age, to sexual contact by touching her breast.” At the November 3, 2014 sentencing hearing plea counsel made an oral motion to withdraw Mr. Kennicutt’s guilty plea. Plea counsel told the court that having reviewed Mr. Kennicutt’s sentencing assessment report (SAR), he was concerned that Mr. Kennicutt still maintained his innocence² and, therefore, he felt ethically bound to attempt to withdraw the guilty plea. Plea counsel told the court that he wanted Mr. Kennicutt to testify. After Mr. Kennicutt was sworn in, Judge Dennis A. Rolf warned him that if he testified contrary to his testimony in September, he was potentially subject to perjury charges. Plea counsel asked the court for a brief moment to discuss this issue with Mr. Kennicutt. Mr. Kennicutt alleges that plea counsel advised him not to testify because of the potential for perjury charges. Plea counsel informed the court that Mr. Kenni-cutt would not be testifying and that plea counsel felt the SAR report provided enough support for the withdrawal. Judge Rolf ultimately denied the motion to withdraw the guilty plea, noting:

[Considering the statements made by the Defendant under oath on September 22nd, 2014, as opposed to the statements that are contained in the SAR which are, if nothing else, hearsay, but even if not objected to for hearsay definitely were not made under oath, the Court is going to choose to believe the statements that he made on September 22, 2014, and the Court is denying the Defendant’s counsel’s motion to set aside the guilty plea.

Mr. Kennicutt filed a Form 40 on January 23, 2015 and the motion court appointed counsel. Appointed counsel filed an amended motion on June 16, 2015. The amended motion raised two claims: (1) insufficient factual basis for first-degree child molestation; and (2) ineffective assistance of counsel based on plea counsel’s mistaken advice regarding the perjury statute. On June 9, 2016, the motion court denied Mr. Kennicutt’s amended motion without an evidentiary hearing. Mr. Kenni-cutt appeals.

We review a motion court’s decision in a Rule 24.035 proceeding to determine if the findings of fact and conclusions of law are clearly erroneous. Dodson v. State, 364 S.W.3d 773, 776 (Mo. App. W.D. 2012). This Court will reverse only if, after review, we are left with a definite and firm impression that a mistake has been made. Id. Mr. Kennicutt has the burden to show “by a preponderance of the evidence that the motion court clearly erred in its ruling.” Id.

Mr. Kennicutt claims that the motion court erred in denying his amended motion without an evidentiary hearing. The motion court is not required to grant an evidentiary hearing unless “(1) the motion ,.. allege[s] facts, not conclusions, warranting relief; (2) the facts alleged must not be refuted by the files and records of the case; and (3) the allegations must have resulted in prejudice.” Wilkes v. State, 82 S.W.3d 925, 928 (Mo. banc 2002).

Mr. Kennicutt first alleged in the amended motion that a factual basis for the charge of first-degree child molestation developed during the guilty plea hearing was insufficient. Specifically, Mr. Kenni-cutt alleged that although he admitted to knowingly subjecting a victim younger than age 14 to sexual contact by touching her breasts, he did not admit that he did so for the purpose of arousing or gratifying a sexual desire, the definition of “sexual contact.” The essence of Mr. Kennicutt’s argument was that admitting to “sexual contact” was insufficient as a matter of law to constitute an admission of the specific intent required to commit the crime of first-degree child molestation.

On appeal, Mr. Kennicutt has elected not to pursue this claim in light of Wray v. State, 474 S.W.3d 230 (Mo. App. W.D. 2015). In Wray, this Court held that the term “sexual contact” provided a sufficient factual basis for the crime of child molestation, because the terms were such that a layman would understand that the contact alleged was for the purpose of arousal or gratification of sexual desires. Id. at 235. Thus, the amended motion’s first claim has been foreclosed as a matter of law.

Still, Mr. Kennicutt’s first claim remains inextricably interwoven with his second claim. Mr. Kennicutt’s second claim alleges that but for plea counsel’s mistaken understanding of the perjury statute, he would have testified in support of the motion to withdraw his guilty plea. Mr. Kennicutt’s amended motion alleges that he would testify at an evidentiary hearing that:

[H]ad he been called as a witness in support of the motion to withdraw his guilty plea, he would have testified he never touched [victim’s] breast with the purpose of arousing or gratifying sexual desire of any person.''Given the deficiency in the factual basis discussed in [connection with the first claim], supra, this would not have been directly contrary to his testimony at the guilty plea, because the-factual basis of the guilty plea never touched on the specific intent element of first-degree child molestation. Further, Mr..Kennicutt’s testimony in support of the motion to withdraw his guilty plea¹ would have fit under the paragraph four defense [to perjury] .of correcting his testimony in the course of the' official proceeding.

The amended motion thus alleges that counsel’s misunderstanding of the perjury statute resulted in Mr. Kennicutt not testifying in support of the motion to withdraw the guilty plea.

To be entitled to an evidentiary hearing, we must first, determine whether these facts could warrant relief. Mr. Ken-nicutt alleges that plea counsel misunderstood paragraph four of the perjury statute, resulting in plea counsel advising Mr. Kennicutt not to testify in support of the motion to withdraw the guilty plea. Mr. Kennicutt thus alleges that had he testified in support of the motion to withdraw as alleged in the amended motion, he would not have committed perjury, and plea counsel was ineffective for advising him to the contrary. We do not agree.

The perjury statute, § 575.040.1 RSMo (2000), provides as follows:

A person commits the crime of perjury if, with the purpose to deceive, he knowingly testifies falsely to any material fact upon oath or affirmation legally administered, in any official proceeding before any court, public body, notary public or other officer authorized to administer oaths. , ,.

The retraction clause, § 575.040.4 RSMo (2000), reads as follows:

It is a defense to a prosecution under subsection 1 of this section' that the actor retracted the false statement in the course of the official proceeding in which it was made provided he did so before the falsity of the statement was exposed. Statements made in separate hearings at separate stages of the same proceeding, including but not limited to statements made before a grand jury, at a preliminary hearing, at a deposition or at previous trial, are made in the course of the same proceeding.

(emphasis added). The record at the sentencing hearing establishes that the basis for Mr. Kennicutt’s “retraction” of his admission of guilt was information contained in the SAR—information that had already been exposed before Mr. Kennicutt desired to testify at the sentencing hearing. Counsel’s recommendation that Mr. Kennicutt not testify did not fall below an objective standard Of reasonableness, the first prong required to establish a claim for ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Plea counsel could reasonably have been concerned that paragraph 4 of the perjury statute, the retraction defense, would not have protected his client.

Even if that were not the case, Mr. Kennieutt would be required to show prejudice to establish entitlement to an eviden-tiary hearing. To show prejudice, Mr. Ken-nicutt must demonstrate that “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. 2052. Mr. Kennieutt has not sustained this burden.

Mr. Kennieutt alleges that had plea counsel called him to testify in connection with the motion to withdraw, he would have testified that “he never touched [victim’s] breast with the purpose of arousing or gratifying sexual desire.” In effect, Mr. Kennicutt’s claim is that although he admitted to “sexual, contact” during the guilty plea hearing,'.he did not admit to the specific intent required to commit first-degree child molestation. As we have.already explained, however, this claim is legally foreclosed in light of our holding in Wray, 474 S.W.3d at 235.

The motion court did not clearly err in concluding that Mr. Kennicutt’s allegation denying specific intent failed to warrant an evidentiary hearing. First Mr. Kennicutt’s assertion 'that, although he touched the victim’s breast, he did not do so with the specific intent required to support the conviction is a conclusion, not a fact. Even could it be construed as a factual assertion, it is not one that warrants relief. Once a defendant has entered a guilty plea, he may attempt to withdraw the plea before sentencing under Rule 29.07(d). State v. Creamer, 161 S.W.3d 420, 424 (Mo. App. W.D. 2005). A plea is made unknowingly or is involuntary if “the defendant is misled, or is induced to plead guilty by fraud or mistake, by misapprehension, fear, persuasion, or the holding out of hopes which prove to be false or ill founded.” Roberts v. State, 276 S.W.3d 833, 836 (Mo. banc 2009). “Mere change of heart or sudden protestations of innocence are not enough.” Creamer, 161 S.W.3d at 424.

Second, though the sentencing court possessed the discretion to permit the withdrawal of Mr, Kennicutt’s guilty plea notwithstanding that it was based on nothing more than a “mere protestation of innocence,” Mr. Kennicutt’s bare assertion that he did not possess the required specific intent is refuted by the récord. Mr. Kennieutt admitted during the güilty-plea hearing that his touching of his' victim’s breast was “sexual contact.” Mr. Kennieutt has acknowledged that an admission ■ of “sexual contact” is tantamount to an admission of specific intent to commit child molestation. Though Mr. Kennieutt now alleges that he did not-have the. intent to arouse or gratify sexual desires, Mr. Ken-nicutt has not alleged facts to-explain-why he touched the victim’s breast., Mr. Kenni-cutt has not alleged facts to explain why his admitted touching of the breast of the victim was not “sexual contact.” The motion court was free to conclude that the bare assertion that Mr. Kennieutt did not possess specific intent was refuted by the admission to “sexual contact.”

Finally, even assuming Mr. Kennieutt could overcome the hurdles requiring the assertion of facts, not conclusions, warranting relief, and not refuted by the record, (which he cannot), Mr. Kennicutt’s conclusory assertion that he lacked specific intent is no more compelling or persuasive than his counsel’s statements on the record at the, sentencing hearing. During the sentencing hearing, the sentencing court made clear that it was choosing to believe Mr. Kennicutt’s sworn statements during the .guilty. plea hearing. Though.the sentencing court noted that it did not have the benefit of contrary “sworn testimony” from Mr. Kennicutt in making its decision, the motion court did have the benefit of contrary sworn testimony in the form of the amended motion. The motion court (which had presided over the sentencing hearing) found that Mr. Kennicutt’s amended motion “failed to show that any testimony he would have given would have changed this Court’s mind as to the motion to set aside the guilty plea.” Mr. Kenni-cutt’s amended motion fails to allege facts warranting relief that demonstrate how “the result of the proceeding would have been different” had the sentencing judge heard his testimony. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. There is no reasonable probability that the outcome would have been different.³ Id.

Conclusion

Mr. Kennicutt has failed to establish that the motion court clearly erred in denying him an evidentiary hearing. Thus, we affirm the motion court’s decision.

Judge Cynthia L. Martin concurs.

Presiding Judge Alok Ahuja writes a dissent.

1 . Mr.' Kennicutt also pleaded guilty to the class A misdemeanor of second degree child molestation. This misdemeanor conviction is not the subject of Mr. Kennicutt’s Rule 24.035 motion.

2 . A copy of the report was not included in the legal file.

3 . The dissent argues that the motion court made an improper credibility determination to conclude that Mr. Kennicutt did not establish prejudice, and that a motion court cannot make credibility determinations without the benefit of an evidentiary hearing. The cases the dissent cites for this proposition are not applicable, as they each involve a movant’s factual assertion about what a third party would have testified, had the third party been called as a witness. Here, the issue is the motion court’s ability to assess the movant's represented testimony. It is axiomatic that the motion court is free, without the need for an evidentiary hearing, to assess whether the movant's represented testimony is refuted by the record—an inherent credibility determination. That is particularly so where the motion court and the sentencing court were one in the same, as was the case here.

1 . Missouri Supreme Court Rule 29.07(d), adopted in 1980, is worded virtually identically to the pre-1983 version of Federal Rule of Criminal Procedure 32(d). Under the pre-1983 version.,of federal Rule 32(d), "withdrawals of pleas [prior to sentencing] were freely allowed unless the " 'prosecution [had] been substantially prejudiced by' reliance upon the defendant's plea.”."' United States v. Lambey, 949 F.2d 133, 136 (4th Cir. 1991) (quoting United States v. Strauss, 563 F.2d 127, 130 (4th Cir. 1977)) (in turn quoting 2 C. Wright, Federal Practice and Procedure § 528, at 474-75 (1969)); see also, e.g., United States v. Punch, 709 F.2d 889, 893 n.5 (5th Cir. 1983) ("The general rale in this Circuit is that 'Rule 32(d) should be construed liberally in favor of the accused when a motion is made to withdraw before sentence is imposed.’ ”; citations omitted); United States v. Morgan, 567 F.2d 479, 493 (D.C. Cir. 1977) ("we have held that prior to sentencing withdrawal should be 'freely allowed’ and granted ‘as a matter of course’ ”; footnotes omitted); United States v. Roland, 318 F.2d 406, 409 (4th Cir. 1963) (motion to withdraw a plea made before sentencing “should be allowed with great liberality”; such motions "should be allowable as of course, or almost so”).