Miles E. Wray v. State of Missouri

In the
Missouri Court of Appeals
Western District
MILES E. WRAY, )
)
Appellant, ) WD77839
)
v. ) OPINION FILED:
) November 10, 2015
STATE OF MISSOURI, )
)
Respondent. )
Appeal from the Circuit Court of Cass County, Missouri
The Honorable R. Michael Wagner, Judge
Before Division One: Anthony Rex Gabbert, Presiding Judge, Victor C. Howard, Judge
and Cynthia L. Martin, Judge
Miles E. Wray ("Wray") appeals from the motion court's denial of his Rule 24.035
motion for post-conviction relief following an evidentiary hearing. Wray argues that his
guilty plea was not knowing and voluntary because it lacked a sufficient factual basis.
Wray also argues that his plea attorney provided ineffective assistance of counsel by
affirmatively misinforming him of his lifetime duty to register as a sex offender and by
failing to review discovery or to develop possible defenses to the crime charged.
Because the motion court did not clearly err, the judgment denying Wray's Rule 24.035
motion is affirmed.
Factual and Procedural Background
Wray was indicted on the charge of child molestation in the first degree. The
indictment alleged that Wray subjected C.B.D., a minor female, to sexual contact by
touching her breasts. The indictment stemmed from statements given to the police by the
victim and other witnesses. Wray also gave a written statement to police after waiving
his Miranda1 rights in which he admitted to being involved in a sexual situation with the
victim.
Wray pleaded guilty to the charge on April 10, 2010. At the beginning of the plea
hearing, the plea court read the charge to Wray and asked Wray if he understood the
nature of the charges. Wray responded: "Yes. Your Honor." Wray said he had sufficient
time to discuss his case with his attorney, and that he told his attorney all of the facts and
circumstances surrounding his case. The plea court asked Wray's counsel to establish the
factual basis for Wray's guilty plea. The following exchange took place:
Counsel: Mr. Wray, on or about January 5, 2009, were you a resident of
Cass County?
Wray: Yes.
Counsel: And on that date, did you have contact with a minor individual
with the initials CVD [sic]?
Wray: Yes.
...
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
Counsel: And at the time of the occasion where you had contact with the
minor child whose initials are CVD [sic], is it true that you had sexual
contact with that minor child by touching her breasts?
Wray: Yes.
Counsel: And when that act occurred in Cass County, Missouri, you knew
that she was a child less than 14 years old?
Wray: Yes.
Wray also signed a guilty plea petition in which he acknowledged that he
understood the nature of the charge, that his attorney advised him of the nature of the
charge, and that he was guilty of the charge because he "had sexual contact with [victim]
by touching her breasts." Wray told the trial court he signed each page of the petition to
plead guilty, that trial counsel went over the petition with him, that he signed the petition
freely and voluntarily, and that he wanted the plea court to accept the petition because he
was guilty of the crime charged.
The State informed the plea court of Wray's statement to police after waiving his
Miranda rights. Wray acknowledged that he voluntarily waived his Miranda rights, that
he freely and voluntarily gave a statement to police, and that his statement could be used
against him at trial. In his statement to the police, Wray admitted to "fingering" the
victim by placing his hand in her pants for a few seconds before going to tell another
person about the incident because he "felt bad."
The State informed the plea court of its agreement to recommend a suspended
imposition of sentence and five years of probation in exchange for Wray's guilty plea,
3
with the understanding that Wray would have to register as a sex offender. Wray stated
that he understood the terms of the plea agreement.
The plea court accepted Wray's guilty plea and sentenced him in accordance with
the terms of the plea agreement. The plea court reminded Wray of his obligation to
register as a sex offender.
Wray's probation was revoked on June 27, 2011, after he failed to complete a sex
offender program and after he failed to report as a sex offender. The trial court imposed
the suspended sentence of five years imprisonment, and Wray was thereafter delivered to
the Department of Corrections. Wray filed a timely pro se Rule 24.035 motion, and
appointed counsel filed a timely amended motion ("Motion"). The Motion alleged that:
(1) no factual basis was established for Wray's guilty plea; (2) trial counsel was
ineffective for affirmatively misinforming Wray about his lifetime obligation to register
as a sex offender; and (3) trial counsel was ineffective for failing to provide discovery to
Wray and for failing to review possible defenses with him.
Following an evidentiary hearing, the motion court denied the Motion.
Wray timely appealed.
Standard of Review
Appellate review of a motion court's 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). "The movant bears the burden of establishing clear error, as
we presume the motion court's findings are correct." Flenoy v. State, 446 S.W.3d 297,
301 (Mo. App. W.D. 2014) (citing Baumruk v. State, 364 S.W.3d 518, 525 (Mo. banc
4
2012)). "The [motion] court's findings and conclusions are clearly erroneous only if,
after reviewing the entire record, the appellate court is left with the definite and firm
impression a mistake has been made." Id.
Point One
In his first point on appeal, Wray argues that there was an insufficient factual basis
for his guilty plea, rendering it unknowing and involuntary, because the legal definition
of "sexual contact" was not explained to Wray at his plea hearing.
"Rule 24.02(e) requires the court to determine that there is a factual basis for a
defendant's guilty plea in order to enter a judgment on the plea." Burnett v. State, 450
S.W.3d 800, 805 (Mo. App. W.D. 2014). "A factual basis for a guilty plea is necessary to
ensure that the guilty plea was intelligently and voluntarily entered, thereby satisfying
due process requirements." Finley v. State, 321 S.W.3d 368, 371 (Mo. App. W.D. 2010).
"Due process does not require that the defendant, in pleading guilty, be informed of each
element of the crime in question at the plea hearing . . . . [F]or a plea to be knowing and
voluntary, the defendant must be informed of the elements of the offense either at the
plea hearing or on some prior occasion, and he must understand them." Mitchell v. State,
337 S.W.3d 68, 71-72 (Mo. App. W.D. 2011) (internal quotations omitted). "A plea
cannot be voluntary unless the defendant received 'real notice of the true nature of the
charge against him.'" Id. at 70 (quoting Henderson v. Morgan, 426 U.S. 637, 644–45
(1976)).
5
Wray asserts that the nature or elements of the offense of child molestation in the
first degree were never explained to him before he pleaded guilty. Section 566.067.12
provides that "[a] person commits the crime of child molestation in the first degree if he
or she subjects another person who is less than fourteen years of age to sexual contact."
Section 566.010(3) defines "sexual contact" as "any touching of another person with the
genitals or any touching of the genitals or anus of another person, or the breast of a
female person, or such touching through the clothing, for the purpose of arousing or
gratifying sexual desire of any person." [Emphasis added.] Wray contends that
although he admitted to having sexual contact by touching the breast of a female younger
than fourteen years of age, the plea record does not establish that the legal definition of
"sexual contact" was explained to him, and, thus, does not establish that his plea was
knowing and voluntary.
The motion court concluded that it was unnecessary to explain the statutory
definition of "sexual contact" to Wray as a part of the guilty plea proceeding in order to
establish a factual basis for Wray's plea because a layperson would commonly understand
that the phrase "sexual contact" connotes contact that is sexual in nature and not mistaken
or innocent. We agree. The average person would understand that by admitting sexual
contact with another, he or she is not admitting mere physical contact but instead contact
that has the purpose of sexual arousal or gratification. Here, the guilty plea record
included Wray's acknowledgment that he engaged in sexual contact by touching the
breasts of a female under the age of fourteen. Wray offers no explanation for how his
2
All statutory references are to RSMo 2000 as supplemented unless otherwise indicated.
6
admitted conduct could have been grounded in a misunderstanding about the meaning of
the word "sexual" when used to refer to specific physical contact. "Where the allegations
contained in the counts are 'simple, specific and sufficient to inform the defendant in
terms that a layman would understand what acts he was charged with committing,' then a
factual basis is established." Finley, 321 S.W.3d at 373 (quoting Hoskin v. State, 863
S.W.2d 637, 639 (Mo. App. E.D. 1993)). Because the term "sexual" "is a commonly-
known, layman term, [Wray] failed to demonstrate that he was deprived of the actual
knowledge of the factual basis" for the charge of child molestation in the first degree.
Finley, 321 S.W.3d at 374.
Wray relies on Hoskin to argue to the contrary. However, his reliance is
misplaced. In Hoskin, the court concluded that a factual basis for guilty pleas to the
charges of "attempted sodomy" and "sexual abuse in the first degree" was not established
by the defendant's bare admission to commission of both charges. 863 S.W.2d at 639-40.
The court reached this result, however, because the nature of the conduct engaged in by
the defendant was not factually developed during the plea proceedings. Id. This was
fatally defective to the validity of the plea because the charged offense of attempted
sodomy required proof of "deviate sexual intercourse," a term of unknown meaning on a
"blank [factual] record." Id. at 639. And this was fatally defective to the validity of the
plea because in admitting to the charged offense of sexual abuse in the first degree, the
defendant admitted to "sexual contact" with the victim with no factual description of the
contact. Id. at 639-40. Hoskin does not stand for the proposition that the legal definition
of "sexual contact" must be explained to a defendant in order to establish a factual basis
7
for a guilty plea. Instead, Hoskin stands for the simple proposition that the conduct
supporting a charged offense must be factually developed in a plea record where
admission of the offense alone does not carry with it an inherent understanding of the
nature of the defendant's criminal acts. Id. Here, in stark contrast to Hoskin, the manner
in which Wray committed the offense of child molestation in the first degree was
factually developed in the record. Wray admitted that he touched the breasts of a female
victim and, that in doing so, he engaged in sexual contact. And "sexual" in reference to
the nature of the contact has a commonly understood meaning requiring no further
definition.
Wray's reliance on Ennis v. State, 887 S.W.2d 771, 772 (Mo. App. S.D. 1994) and
Kennell v. State, 209 S.W.3d 504 (Mo. App. E.D. 2006) is similarly unavailing. In Ennis,
the court set aside a guilty plea to the charge of attempted sodomy where the plea record
failed to establish "the nature of defendant's acts which would constitute sodomy because
the term deviate sexual intercourse is an unknown." 887 S.W.2d at 774. Though the
defendant admitted having "sexual intercourse" with two victims, the legal definition of
sexual intercourse was not consistent with the legal definition of "deviate sexual
intercourse." Id. As in Hoskin, it was not the failure to legally define a term, but instead
the failure to factually develop the defendant's conduct sufficient to support the charged
offense that required the guilty plea to be set aside. Id. at 775. We have already
explained that, in contrast, Wray admitted the specific contact with the victim giving rise
to his charged offense and admitted that the contact was of a sexual nature--a phrase of
ordinary and common connotation.
8
Kennell, the other case relied on by Wray, supports our conclusion. The court in
Kennell rejected a defendant's effort to set aside a guilty plea to armed criminal action
because the deadly weapon used in an underlying robbery was not described by the State.
209 S.W.3d at 506-08. Noting that "the term 'deadly weapon' used in the armed criminal
action charge would be easily understood by most people to mean a gun, knife, or other
weapon readily capable of causing death," the court distinguished Hoskin and Ennis. Id.
at 508. We similarly conclude that although "sexual contact" is an essential element of
child molestation in the first degree, and is limited to specific kinds of contact, the fact
that proscribed contact must be "sexual" in nature is easily understood to refer to contact
for the purpose of sexual arousal or gratification of any person. We thus conclude that by
admitting that he had sexual contact with his victim by touching her breasts, Wray
knowingly and voluntarily admitted that he committed the charged offense of child
molestation in the first degree, even though "sexual contact" was not further defined
during the plea proceeding to mean contact for the purpose of arousing or gratifying
sexual desire of any person.
It is worth noting that the plea record included the police report where Wray
admitted involvement in a sexual situation with the victim and admitted feeling bad about
his contact with the victim. That Wray would now have us believe that he did not
understand "sexual contact" to mean contact of a sexual (as opposed to innocent) nature
defies credulity. "Because direct proof of the requisite mental state for the crime of child
molestation is seldom available, the existence of such intent is usually inferred from
circumstantial evidence and the permissible inferences that can be drawn therefrom."
9
Wagoner v. State, 240 S.W.3d 159, 166 (Mo. App. S.D. 2007). "The inferences drawn
from the evidence by the motion court were reasonable and were sufficient to establish a
factual basis for [Wray's] guilty plea." Id.
The motion court did not clearly err in determining that a sufficient factual basis
existed when Wray entered his guilty plea.
Point one is denied.
Point Two
In his second point on appeal, Wray argues that trial counsel was ineffective
because she affirmatively misled him about his lifetime obligation to register as a sex
offender upon pleading guilty. Wray asserts that had he known of the lifetime
requirement to register as a sex offender, he would not have pleaded guilty and instead
would have proceeded to trial.
"To establish a claim for ineffective assistance of counsel, a defendant must
demonstrate (1) that counsel failed to exercise the level of skill and diligence that a
reasonably competent counsel would in a similar situation and (2) that the defendant was
prejudiced by counsel's failure." Stanley v. State, 420 S.W.3d 532, 548 (Mo. banc 2014)
(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). To show defective
performance by counsel, a defendant "must show by a preponderance of the evidence that
[counsel's] actions fell below an objective standard of reasonableness." Neal v. State, 379
S.W.3d 209, 215 (Mo. App. W.D. 2012). "To show prejudice . . . the defendant must
prove that, but for the errors of counsel, he or she would not have pleaded guilty and
would have demanded a trial." Stanley, 420 S.W.3d at 548. "If either the performance
10
prong or the prejudice prong is not met, then we need not consider the other . . . ." Neal,
379 S.W.3d at 216.
"If [a] conviction results from a guilty plea, any claim of ineffective assistance of
counsel is immaterial except to the extent that it impinges the voluntariness and
knowledge with which the plea was made." Stanley, 420 S.W.3d at 548 (internal
quotations omitted). "[F]or a plea to be voluntary and knowing, the defendant must be
advised of the direct consequences of his plea." McCoy v. State, 456 S.W.3d 887, 893
(Mo. App. W.D. 2015). "Although it is necessary to inform a defendant of all direct
consequences of a guilty plea, plea counsel is not required to inform a defendant of
collateral consequences." Id. "[I]ssues concerning . . . the requirement to register as a
sex offender are generally deemed to be collateral consequences of a guilty plea; plea
counsel is therefore not required to discuss such matters with a defendant in order for the
defendant's guilty plea to be considered knowing and voluntary. Id.
"However, the distinction between direct and collateral consequences is
unimportant and a different rule applies where counsel misinforms his client regarding a
particular consequence and the client relies upon the misrepresentation in deciding to
plead guilty." Miller v. State, 260 S.W.3d 393, 394 (Mo. App. W.D. 2008) (internal
quotations omitted). "In cases where counsel affirmatively misinforms a client about any
consequence of pleading guilty, direct or collateral, and thereby causes such client to
possess a mistaken belief regarding his sentence, the critical test is whether a reasonable
basis exists in the record for such a mistaken belief." McCoy, 456 S.W.3d at 895-96
(emphasis in original). "A defendant's mistaken belief regarding a collateral consequence
11
may render his plea not voluntary if (1) the mistake is reasonable and (2) the mistake is
based upon a positive representation upon which the defendant was entitled to rely." Id.
at 896 (internal quotations omitted).
Wray argues that trial counsel affirmatively misinformed him about his lifetime
requirement to register as a sex offender upon pleading guilty. Wray claims that trial
counsel advised him that he would not have to register as a sex offender and that he first
learned of the obligation to register as a sex offender during the plea hearing.
Wray's trial counsel testified during the Motion hearing that she spoke to Wray
twice about his obligation to register as a sex offender before he pled guilty. The first
discussion occurred when Wray called to ask her if he "could get out from underneath
registration" due to the circumstances of his crime. Trial counsel testified that she told
Wray that there was a provision that could allow the court to release him from his
obligation to register as a sex offender, but only if Wray petitioned the court and the court
accepted that petition. The second discussion occurred before the plea hearing when trial
counsel was reviewing the petition to enter a guilty plea with Wray. Trial counsel
testified that she and Wray discussed where he would live while on probation in order to
be a compliant registered sex offender. Trial counsel denied ever advising Wray that he
would not be required to register as a sex offender. The motion court found trial
counsel's testimony to be credible, a finding that we will not disturb on appeal. See
Barton v. State, 432 S.W.3d 741, 760 (Mo. banc 2014) ("This Court defers to the motion
court's superior opportunity to judge the credibility of witnesses.").
12
Because trial counsel did not affirmatively misinform Wray about his lifetime
obligation to register as a sex offender upon pleading guilty, Wray has failed to meet his
burden to establish deficient performance by trial counsel, rendering it unnecessary to
address the prejudice prong. Neal, 379 S.W.3d at 216.3
Point two is denied.
Point Three
In his third point on appeal, Wray argues that trial counsel was ineffective because
she failed to adequately investigate the discovery in Wray's case, failed to effectively
review discovery with Wray, and failed to develop possible defenses prior to his guilty
plea. Wray asserts that trial counsel's defective performance rendered his guilty plea
unknowing and involuntary. Wray's burden to establish ineffective assistance of counsel
in this regard is the same as discussed in connection with his second point on appeal, and
need not be repeated.
Trial counsel testified that she reviewed all the discovery in the case, noted there
were discrepancies in the witness and victim statements given to police, and reviewed
those discrepancies with Wray in person while he was incarcerated. Trial counsel
testified that after she reviewed the police reports with Wray, he understood the
inconsistencies in the witness and victim statements, he told her that the touching was
3
The motion court concluded with respect to the prejudice prong that it was disingenuous for Wray to
testify that he would have proceeded to trial had he known of the lifetime sex offender registration requirement
given that his charged offense carried a five to fifteen year prison sentence, he made admissions to law enforcement,
and he made admissions to a witness that the State would have introduced at trial. Additionally, trial counsel
testified that Wray was eager to get out of jail and was "more than happy" to accept the State's plea offer of a
suspended imposition of sentence because "what that would mean is he essentially would go home" after the plea
hearing if the trial court imposed the terms of the plea agreement.
13
consensual, and that he thought the victim was lying in some of her statements to police.
Trial counsel testified that she discussed the admissions Wray made to the police and
determined that she would not be able to suppress those admissions. Trial counsel said
Wray understood that if he proceeded to trial, he could use the victim's inconsistent
statements as a defense, but that the State would introduce his admissions to the police.
Trial counsel testified that she gave copies of the police reports to Wray's father to give to
Wray after her initial meeting with Wray in jail.
Trial counsel also testified that had Wray gone to trial, she planned to use the
inconsistent witness and victim statements as a defense, and that in preparation for trial,
she investigated a diminished capacity defense for Wray. However, the mental health
assessment trial counsel secured revealed that Wray did not have a cognizable defense
based on a mental illness. The assessment did reveal, however, that Wray was not a high
risk to reoffend, a determination trial counsel used to negotiate the plea agreement with
the State. The State initially offered a plea agreement recommending an eight-year
sentence if Wray pleaded guilty. After reviewing Wray's mental health assessment, the
State offered a plea agreement recommending a suspended imposition of sentence and
probation if Wray pleaded guilty, the agreement Wray accepted.
Wray testified that he was not aware that the victim or other witnesses made
statements to the police. Wray said he never received copies of the police reports. Wray
testified that trial counsel did not discuss with him the discrepancies in the witness and
victim statements given to police. Wray testified that he thought the only evidence
against him were his admissions to the police. Wray also testified, however, that trial
14
counsel reviewed police reports with him while in jail and that he remembers seeing law
enforcement records but that he did not understand what they were or recognize them to
be witness statements.
The motion court determined that trial counsel's testimony was credible and that
Wray's testimony was not credible. We defer to the motion court's credibility
determinations. Barton, 432 S.W.3d at 760. Wray has failed to sustain his burden to
establish that trial counsel's actions fell below an objection standard of reasonableness,
and, thus, has not proved that Carter provided him with ineffective assistance of counsel.
As a result, we need not address the prejudice prong. Neal, 379 S.W.3d at 216.4
The motion court did not clearly err in denying Wray's claim that Carter provided
him with ineffective assistance of counsel.
Point three is denied.
Conclusion
The motion court's judgment denying Wray's Motion is affirmed.
__________________________________
Cynthia L. Martin, Judge
All concur.
4
Were we to reach this prong, Wray would not be able to sustain his burden, as he has never identified any
information or defense that trial counsel failed to discover, or how that information or defense would have aided his
position. Hendrix v. State, WD 77353, 2015 WL 3751386, at *3 (Mo. App. W.D. June 16, 2015) (holding that "[t]o
succeed on an ineffective assistance of counsel claim based on inadequate investigation, movant must specifically
describe the information the attorney failed to discover, allege that a reasonable investigation would have resulted in
the discovery of such information[,] and prove that the information would have aided or improved the movant's
position"). Here, in fact, trial counsel's efforts led to Wray's psychological evaluation in aid of a possible defense of
diminished capacity. The result of those efforts appear to have single-handedly led to a highly favorable plea
agreement with the State.
15