Corey A. Wiggins, Movant/Appellant v. State of Missouri

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DIVISION THREE
COREY A. WIGGINS, ) ED101660
)
Movant, ) Appeal from the Circuit Court
) of St. Louis County
v. ) 13SL—CC04554
)
STATE OF MISSOURI, ) Honorable Thea A. Sherry
)
Respondent. ) Filed: April 28, 2015
Introduction
Corey A. Wiggins (Movant) appeals the judgment denying his motion for post—
conviction relief under Rule 24.0351 without an evidentiary hearing. Movant argues that
he adequately alleged facts, not refuted by the record, that established his guilty piea was
involuntary. We reverse and remand to the motion court for an evidentiary hearing.
Background
Movant pled guilty to one count of murder in the second degree and one count of
armed criminal action. Movant’s pleas arose out of an incident during a family gathering
on Thanksgiving Day in 2012, when Movant and the victim got into an argument and
Movant shot the victim. The plea court sentenced Movant to consecutive terms of life in
prison for second~degree murder, and nine years for armed criminal action.
‘ Ail rule references are to M0. Crim. P. (20 E4), unless otherwise indicated.
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Movant timely filed his motion under Rule 24.035, alleging that his plea counsel
was ineffective for failing to advise him before he pled guilty of the viability of
proceeding to trial on the theory that he was guilty of the lesser-included offense of
voluntary manslaughter, rather than second-degree murder. Movant alleged his plea
counsel was aware of the following facts that would have supported such a defense.
Movant alleged that the victim was a friend of Movant’s family whom Movant
had known all his life. Movant described a history of the victim verbally and sexually
abusing Movant since he was a child. Movant alleged that the victim harassed and
threatened him several times during the days before the shooting. The morning of
Thanksgiving, the victim approached Movant with a screwdriver and grabbed him by the
neck. Movant also alleged that during the argument later that day, before Movant stood
to shoot the victim, the victim came over to the table where Movant was seated and stood
next to him holding a screwdriver and making threatening comments. A heated argument
followed, during which the victim told Movant, “I’ll have your ass right now.” Movant
believed the victim might do something sexual in nature to him. Movant alleged that he
stood up from the table, and the victim came at him with the screwdriver. Movant
alleged that at that point he “lost it” and shot the victim multiple times.
Movant argued in his motion that although his plea counsel was aware of these
facts, he never discussed the possibility of proceeding to trial and arguing Movant
committed voluntary manslaughter rather than second—degree murder. The motion court
denied Movant’s motion without an evidentiary hearing, finding that the record
conclusively refuted his claim. Specifically, the motion court held that the plea hearing
record showing the prosecutor’s recitation of the factual basis of the case and Movant’s
agreement to it refuted the facts aileged in Movant’s motion. The motion court also
found that the record refuted Movant’s claim that his counsel was ineffective because
Movant repeatedly assured the plea court that he was satisfied with the representation
provided by his attorney. This appeal follows.
Standard of Review
Appellate review of the denial of a motion under Rule 24.035 is “limited to a
determination of whether the motion court’s findings of fact and conclusions of law were
clearly erroneous.” Rule 24.035(k); fl Weeks v. State, 140 S.W.3d 39, 44 (Mo. banc
2004). Because the findings of the motion court are presumed to be correct, we will find
them clearly erroneous only if, after a review of the entire record, this Court is left with
the definite and firm impression that a mistake has been made. Vaca v. State, 314
S.W.3d 331, 334 (Mo. bauc 2010).
In order to obtain an evidentiary hearing on a claim of ineffective assistance of
counsel under Rule 24.035, (1) a movant must raise facts, not conclusions, warranting
relief; (2) the facts alleged must raise matters not refuted by the record; and (3) the
matters complained of must have resulted in prejudice to the movant. State v. Driver,
912 S.W.2d 52, 55 (Mo. banc 1995). To justify the denial of an evidentiary hearing, the
record must be specific enough to conclusively refute the movant’s allegation. Lomax v.
State, 163 S.W.3d 561, 563 (Mo. App. ED. 2005) (quoting Driver, 912 S.W.2d at 55).
Discussion
In his sole point on appeal, Movant argues that the motion court clearly erred in
denying his motion without an evidentiary hearing because he sufficiently alleged facts
that if true would establish that his plea counsel was ineffective. We agree.
To warrant an evidentiary hearing on his claim of ineffective assistance of
counsel, Movant must allege unrefuted facts showing that his counsel’s performance fell
below an objective standard of reasonableness and that he was prejudiced thereby. &
Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2812). Where there is a plea of guilty, a claim
of ineffective assistance of counsel is immaterial “except to the extent that the conduct
affected the voluntariness and knowledge with which the plea was made.” Worthington
Mg, 166 S.W.3d 566, 573 (Mo. banc 2005). if Movant successfully alleges counsel’s
performance was deficient, he must also allege that there is a reasonable probability that
but for counsel’s ineffectiveness, he would not have pled guilty and would have
demanded a trial. E Savage v. State, 114 S.W.3d 455, 457 (Mo. App. ED. 2003).
Here, Movant alleged in his motion that his plea counsel failed to discuss with
him the viability of arguing for a conviction of voluntary manslaughter rather than
second-degree murder despite plea counsel knowing of facts that might support such a
defense. Failure by plea counsel to advise a defendant of a possible defense may render a
guilty plea unknowing and involuntary. & Beguette, 161 S.W.3d at 908 (reversing for
evidentiary hearing on claim that defense counsel failed to inform movant of possible
defense and failed to investigate witness who could support that defense). While counsel
may ultimately advise a defendant to plead guilty based on the circumstances in a given
case, counsel still has the basic duty to discuss the circumstances and possible
consequences of entering a plea, including possible defenses to the offense charged, in
order to ensure that the defendant makes an informed and intelligent decision about
waiving the right to trial. E Cooper v. State, 356 S.W.3d 148, 153 (Mo. banc 2011)
(plea must be knowing and intelligent act done with sufficient awareness of relevant
circumstances and iikely consequences); Estes V. State, 950 S.W.2d 539, 543 (Mo. App.
ED. 1997) (counsel has duty to discuss possible consequences of pleading guilty).
Voluntary manslaughter is a class B felony, defined as causing the death of
another person under circumstances that would constitute murder in the second degree,
except that the death was caused “under the influence of sudden passion arising from
adequate cause.”2 Section 565.023.1, 565.0233.3 In contrast to the life sentence Movant
agreed to by pleading guilty, a class B felony carries a possible prison term of five to 15
years. Section 558.011.1(2). Movant argued that the facts he alleged supported the
conclusion that he was guilty of voluntary manslaughter rather than second-degree
murder, and had his counsel discussed such a defense with him, he would not have pled
guilty but would have gone to trial.
The motion court recognized that if the facts contained in Movant’s motion were
true, “he may well have been entitled to argue for the lesser—included offense of voluntary
”
manslaughter. However, the motion court found that the facts Movant affirmed in his
plea hearing refuted these facts. Specificaliy, the State recited the following factual
basis:
{T]he State’s evidence would have been that the defendant
and the victim in this case were arguing, verbally arguing,
over Thanksgiving dinner last year. The argument culminated
when the defendant stood up from the table and shot the
victim multiple times while the victim was still seated at the
table.
2 “Sudden passion” is “passion directly caused by and arising out of provocation by the victim, or another
acting with the victim, which passion arises at the time of the offense and is not soleiy the result of former
provocation." Section 565.002(7), RSMo. (2000). “Adequate cause” is “cause that would reasonably
produce a degree of passion in a person of ordinary temperament sufficient to substantially impair an
ordinary person’s capacity for self-control.” Section 565.0020).
3 All statutory references are to RSMo. (2000), unless otherwise indicated.
5
The plea court then said to Movant, “You’ve heard the prosecutor’s statement. Is that
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correct?” Movant replied, “Yes, your Honor.’ The motion court concluded this
established Movant shot the victim during a solely verbal argument while the victim was
still seated at the table, and because of this, Movant would not have been able to show the
elements of “sudden passion” or “adequate cause” required for the defense of voluntary
manslaughter. E State v. Scheets, 849 S.W.2d 637, 638 (Mo. App. ED. 1993) (mere
words do not suffice as adequate cause).
However, the factual basis underlying a guilty plea is not always a complete
account of the circumstances surrounding the crime, nor is it meant to be. It is often
simply a recital of the elements the State expects to prove at a trial, and it is not even
necessary that the defendant agree entirely with the facts recited by the State in order for
his or her plea to be voluntary. _S_e_e State v. Morton, 971 S.W.2d 335, 340 (Mo. App.
ED. 1998) (prosecutor's statement that he is prepared to prove facts during trial that
would constitute crime is sufficient to establish factual basis; defendant does not have to
agree so long as defendant understands facts); Bird v. State, 657 S.W.2d 315, 316 (Mo.
App. ED. 1983) (citing North Carolina v. Alford, 400 US. 25 (1070)) (where movant
admitted stealing but equivocated regarding value of stolen property, this Coult
nevertheless found plea was voluntary). The gravamen is whether the defendant
understands the nature of the offense and the consequences of giving up his or her right to
proceed to trial. E State v. Taylor, 929 S.W.2d 209, 217 (Mo. banc 1996) (court is not
required to explain every element so long as defendant understands nature of charge).
In this light, we do not agree that Movant’s acknowledgment of the State’s
anticipated evidence conclusively refuted the facts Movant alleged in his motion. Even if
a jury were to believe that the victim was still seated when Movant shot him, they could
also believe the victim brandished a screwdriver. In light of the ongoing past abuse
Movant alleged, the confrontations between Movant and the victim in the days leading up
to the shooting, as well as former threats with a screwdriver specifically on the morning
of the shooting, a court could have determined an instruction on voluntaly manslaughter
was proper. See State v. Avery, 120 S.W.3d 196, 205 (Mo. banc 2003) (while words
alone are not adequate cause, “little more is required”; evidence of former provocation
may be relevant to show why events immediately before killing amount to sudden
passion arising from adequate cause); State v. Branch, 757 S.W.2d 595, 599 (Mo. App.
ED. 1988) (where defendant shot victim when victim was intoxicated, evidence of
Victim’s past abuse of defendant while intoxicated may have caused jury to reject
deliberation or premeditation).
While there is no guarantee that Movant would have successfully convinced a
jury that he committed voluntary manslaughter rather than second-degree murder, he was
entitled to weigh that option before pleading guilty. Under the particular circumstances
here, we cannot say that the factual basis Movant acknowledged at his plea hearing
conclusively refuted Movant’s claim that his trial counsel was ineffective for failing to
discuss this option. The motion court’s judgment was clearly erroneous in this respect.
However, the motion court also found the record specifically refuted Movant’s
allegation that counsel failed to discuss possible defenses with him. The motion court
noted the following colloquy from Movant’s plea hearing:
THE COURT: Now, do you believe you’ve had sufficient time
to talk to [your attorney] about these charges?
[MOVANT]: Yes, your Honor.
THE COURT: Has he answered all the questions you asked
him?
[MOVANT]: Yes, your Honor.
THE COURT: Has he shared all the...factual information of
the evidence of the crime?
[MOVANT]: Yes, your Honor.
THE COURT: And is there anything you asked him to do that
he refused to do?
[MOVANT11 No, your Honor.
THE COURT: And do you have any complaints about his
representation?
[MOVANT]: No, your Honor.
THE COURT: Are you satisfied with his services?
[MOVANT]: Yes, you Honor.
After accepting Movant’s plea, the plea court again asked Movant whether he was
satisfied with his counsel’s services, and Movant responded, “Yes, your Honor.” Based
on this, the motion court concluded that even were a defense of voluntary manslaughter
available, Movant’s assurances that he was satisfied with his trial counsel refuted his
claim that counsel failed to discuss it with him before he pled guilty.
The questions about counsel’s performance and the responses to them must be
specific, and general inquiries about a movant’s satisfaction with counsel are not enough
to conclusively refute a claim of ineffective assistance. M, 912 S.W.2d at 56. In
Muhammad v. State, this Court noted that where a movant claimed he was unaware of
the possibility of arguing self-defense or a lesser-included offense at trial, the plea court
had specifically asked the movant whether his attorney had discussed possible defenses
and the movant said yes. 367 S.W.3d 659, 663 (M0. App. ED. 2012). Additionally, this
Court found the record did not support the conclusion that the movant was unaware of the
basic principles of self-defense or the concept of lesser—included offenses. 1,4,
However, here, the plea court did not ask Movant specifically whether his plea
counsel had explained any available or known defenses to him, or if plea counsel had
fully advised Movant as to all aspects of the case. Further, while self-defense is evident,
the concept of sudden passion arising from adequate cause is not as evident to a non~
lawyer. Especially here, given that it is based on the possibility that his history with the
Victim as well as events leading up to the shooting may have been relevant to show a
context leading to sudden passion arising from adequate cause, we find nothing in the
record to refute Movant’s allegation that he was not aware of the possibility of making
this argument.
While it may be that Movant’s counsel did in fact discuss with him the possibility
of proceeding to trial and requesting a conviction for voluntary manslaughter before
Movant pled guilty, there is no way to know without an evidentiary hearing. E
Buckner v. State, 995 S.W.2d 47, 50 (Mo. App. W.D. 1999) (noting only evidentiary
hearing can resolve issue of whether counsel discussed merits of filing motion to
suppress evidence with movant). Movant’s alleged facts, taken as true, suggest the
existence of a possible defense that counsel should have discussed with Movant prior to
the guilty plea, and those facts are not conclusively refuted by this record.
Finally, Movant alleged that he was prejudiced because had his counsel discussed
this possibility with him, he would not have pled guilty but would have proceeded to
trial. Though proceeding to trial would have presented a significant risk for Movant in
light of the State’s recital of its evidence, specifically the risk of the jury rejecting such an
argument and sentencing Movant to life in prison without any possibility of parole; again,
without the benefit of an evidentiary hearing, we must take Movant at his word.
Thus, because Movant sufficiently pled unrefuted facts that would entitle him to
relief on his claim under Rule 24.035, we conclude the motion court clearly erred in
denying his motion without an evidentiary hearing. Point granted.
Conclusion
We reverse the motion court’s judgment and remand for the purpose of
conducting an evidentiary hearing on Movant’s motion prior to entry of judgment.
Kurt S. Odenwald, P.J., concurs.
Robert G. Dowd, Jr., 1., concurs.
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