JAMES RICHARD COLLINS, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent.

JAMES RICHARD COLLINS, )
)
Movant-Appellant, )
)
vs. ) No. SD33236
)
STATE OF MISSOURI, ) Filed: November 6, 2014
)
Respondent-Respondent. )
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY
Honorable Thomas E. Mountjoy, Circuit Judge
AFFIRMED
James Richard Collins (“Movant”), a prior and persistent felon, entered an
Alford1 plea to the class C felony of domestic assault in the second degree, a violation of
section 565.073.2 Pursuant to a plea agreement, Movant was sentenced to six years
imprisonment and a pending burglary charge was dismissed. Movant thereafter filed a
pro se motion for post-conviction relief under Rule 24.035, which was later amended.
Following an evidentiary hearing, the motion court denied relief. Movant appeals; we
affirm.
1
North Carolina v. Alford, 400 U.S. 25 (1970).
2
All references to statutes are to RSMo 2000, and all rule references are to Missouri Court Rules (2014),
unless otherwise specified.
1
The findings of the motion court are presumptively correct. Cook v. State, 193
S.W.3d 378, 381 (Mo.App. S.D. 2006). Therefore, our review is limited to determining
whether the motion court’s findings of fact and conclusions of law are clearly erroneous.
Rule 24.035(k); Conley v. State, 301 S.W.3d 84, 87 (Mo.App. S.D. 2010). Under that
standard, the motion court’s findings and conclusions are presumptively valid and we
will reverse only if “we are left with the definite and firm impression that a mistake has
been made.” Bantle v. State, 165 S.W.3d 233, 235 (Mo.App. S.D. 2005).
On appeal, Movant only challenges the motion court’s ruling as to a single claim
raised in his Rule 24.035 motion—that Movant’s plea counsel was ineffective for failing
to abide by Movant’s request to interview a “key witness” named Wayne Maggard
(“Maggard”), whose “testimony would have helped prove [Movant’s] innocence in this
case.”
We begin by noting that, in deciding to plead guilty, Movant generally waived
any future complaint he might have “about trial counsel’s failure to investigate his case.”
Simmons v. State, 100 S.W.3d 143, 146 (Mo.App. E.D. 2003).3 Movant’s claim that he
was denied effective assistance of counsel, therefore, is only relevant to the extent that it
impinges on the voluntariness and knowledge with which the plea was made. Id.
“In order to succeed on a claim of ineffective assistance of counsel based
on inadequate preparation or investigation, [a movant is] required to allege
what information plea counsel failed to discover; that a reasonable
investigation or preparation would have resulted in the discovery of such
information; and that the information would have aided or improved his
defense.”
3
The principle applies with equal force in the context of this case because an Alford plea is treated no
differently than a guilty plea in which a defendant admits that the particular act charged was committed.
Fisher v. State, 192 S.W.3d 551, 554 (Mo.App. S.D. 2006).
2
Gooch v. State, 353 S.W.3d 662, 666 (Mo.App. S.D. 2011) (quoting McVay v. State, 12
S.W.3d 370, 373 (Mo.App. S.D. 2000)) (alteration in original).
At the evidentiary hearing on Movant’s Rule 24.035 motion, Movant testified that
before pleading guilty he had been assured by plea counsel that Maggard “had
disappeared and that there was no way of getting in touch with him.” Movant further
testified that, after he was incarcerated pursuant to his guilty plea, he reached Maggard by
telephone, whereupon Maggard informed Movant that he had tried to call plea counsel
“several times” without response.
The motion court, apparently, did not believe Movant’s testimony and was under
no obligation to do so. See Gold v. State, 341 S.W.3d 177, 180 (Mo.App. S.D. 2011).
Indeed, the motion court instead credited the testimony of plea counsel that all attempts
to contact Maggard either by phone or in person were unsuccessful.
Deferring (as we must) to this finding, the record before us indicates plea counsel
could not locate Maggard, and that Movant was fully aware of this fact at his plea
hearing. Yet, at that hearing, Movant expressed complete satisfaction with plea counsel’s
performance and indicated that it was his intention to plead guilty.4 The motion court
found, and we agree, that the foregoing evidenced that Movant’s plea was entered into
knowingly and voluntarily, thereby waiving his ineffective assistance of counsel claim.
See Berry v. State, 214 S.W.3d 413, 417 (Mo.App. S.D. 2007); McVay, 12 S.W.3d at
374.
4
At his guilty plea hearing, Movant stated that it was his intention to plead guilty; that he understood the
plea agreement; that he had enough time to talk with plea counsel; that he told plea counsel everything that
he needed to know; that no one prompted or pressured him to answer untruthfully; the plea counsel did
everything Movant had asked him to do; and that he had no complaints about plea counsel’s services.
3
Accordingly, we deny Movant’s point and affirm the judgment of the motion
court.
Nancy Steffen Rahmeyer, J. - Opinion Author
Don E. Burrell, J. - Concurs
Mary W. Sheffield, P.J. - Concurs
4