 

In the Missouri Com‘t of Appeals
Eastern District

DIVISI()N FOUR
lVAN MITCHELL, ) No. ED104244
)
Appellant, ) Appeal from the Circuit Court
) of the City of St. Louis
vs. )
) Honorable Mark H. Neill
STATE OF MISSOURI, )
)
Respondent. ) FILED: February 7, 2017

lntroduction

Ivan Mitchell (“Mitchell”) appeals the motion court’s denial of his amended Rule 24.035l
motion Without an evidentiary hearing On appeal, Mitchell argues that the motion court clearly
erred for two reasons First, Mitchell asserts that the motion court failed to issue the mandatory
findings of fact and conclusions of law on his claim that the State violated Brady v. l\/laryland.2
Alternatively, Mitchell contends that the motion court improperly denied him an evidentiary
hearing on his claim for ineffective assistance of counsel because he pleaded facts, not refuted by
the record, that entitled him to post~conviction relief. l\/Iitchell’s claim for relief due to the

alleged Brady violation is not cognizable in this post-conviction proceeding because Mitcheil

 

l All rule references are to Mo. R. Crim. P. (2016).
2 373 U.S. 83 (1963).

 

was aware of the alleged non-disclosure of evidence before he entered his guilty plea. Because
Mitche|l’s pleaded allegations of ineffective assistance of counsel are directly refuted by the
record, we affirm the motion court’sjudgment.

Factual and Procedural Historv

 

The State charged Mitcheil With two felonies_first-degree murder and armed criminal
action-for allegedly shooting a victim to death in a bar. Mitchell indicated a Willingness to
plead guilty to these charges pursuant to an agreement with the State. Under the plea agreement,
the State Would reduce the murder charge from first-degree to second-degree and recommend
concurrent life terms in prison with the possibility of parole. A first-degree murder conviction
carries the possibility of a life sentence without parole. The plea court held a hearingl

At the hearing, the plea court questioned Mitchell about the voluntariness of his plea.
Mitchell stated that he understood the terms of the plea agreement. Mitchell told the plea court
that he had enough time with plea counsel to discuss the charges and review the evidence. The
plea court then outlined Mitchell’s trial rights. Mitchell acknowledged that he was waiving those
rights by pleading guilty. Mitcheil stated that he had discussed a mistaken-identity defense with
plea counsel, but had no viable defense due to the incriminating statement he made during a
police interrogation Mitchell estimated that he had met with plea counsel four or five times
concerning his case. According to Mitchell, plea counsel answered all of his questions and did
everything Mitchell asked. After Mitchell said that he was voluntarily pleading guilty, the
prosecutor read the factual basis for the plea. Mitchell did not dispute the factual basis, and the
plea court accepted Mitchell’s plea.

At Mitcheil’s subsequent sentencing hearing, the plea court sentenced Mitchell according
to the terms of the plea agreement The plea court then inquired into plea counsel’s

effectiveness Mitchell, as he had done during his plea hearing, reported no complaints about his

2

 

plea counsel’s representation of him. Again, Mitchell stated that plea counsel had answered all
of his questions and had done everything he had asked. The plea court found no probable cause
to believe that Mitchell had received ineffective assistance of counsel.

Mitchell filed a timely amended motion under Rule 24.035. 'i`he motion alleged two
grounds (relevant to this appeal) for post-conviction relief.

First, Mitchell alleged that plea counsel was ineffective for failing to investigate and
request from the State a recorded video of an interrogation in which Mitchell allegedly invoked
his right to counsel. The alleged video, the motion claimed, was taken at some point before a
subsequent interrogation in which Mitchell gave an incriminating statement ln the motion,
Mitchell asserted that he had invoked his right to counsel during the first interrogation, the police
terminated that interrogation, and then police later interrogated him a second time, during which
he made the incriminating statement. Mitcheil alleged that he received the video of the second
interrogation containing the incriminating statement, but never received video of the first
interrogation, in which he invoked his right to counsel. ln his motion, l\/litchell avers that he told
plea counsel of the initial interrogation, but that plea counsel failed to fite for additional
discovery. But for plea counsel’s ineffectiveness, the motion averred that there would have been
a reasonable chance of suppressing the incriminating statement Mitchell made during the second
videotaped interrogation

Second, Mitchell alleged in the alternative that he was entitled to post-conviction relief
because the State committed a _B_i@y violation by failing to disclose the video of the first
interrogation3 Mitchell iiuther pleaded that “inforrnation about the first interview and his

request for counsel was necessary” to support a motion to suppress his statements Mitchell

 

3 Under Brady v. Maryland, 373 U.S. 83, 87 (}963), the Constitution requires the State to disciose evidence in its
possession that is favorable to the defendant and material to guilt or punishment

3

 

asserted that he “was prejudiced because he did not receive this discoverable evidence and
was not able to review the video in order to file a pre-trial motion to suppress his statements
based on his request for counsel [in the first interrogation].”

Without holding an evidentiary hearing, the motion court entered findings of fact and
conclusions of law denying Mitchell’s amended Rule 24.035 motion. Addressing the
ineffective-assistance claim, the motion court found that Mitchell had repeatedly assured the plea
court, during both the plea and sentencing hearings, that his counsel had done everything asked
of him. Further, the motion court found that plea counsel had sufficiently discussed the case
with Mitchell. The motion court noted that while Mitchell “claims he told his attorney about the
first interview and asked his attorney to get any notes or recording[s] of the interview,” Mitchell
twice informed the plea court that he had no complaints against his plea counsel. Because
Mitchell testified that he had no complaints with plea counsel, the motion court concluded that
the ineffective-assistance claim was without merit. The motion court’s findings and conclusions
did not specifically address Mitcheil’s alternate My claim.

With leave of this Court, l\/Iitchell subsequently filed a late notice of appeal. This appeal

follows.

Points on Appeal

l\/Iitchell raises two points on appeal, both asserting that the motion court clearly erred by
denying his Rule 24.035 amended motion without an evidentiary hearing. In Point One, Mitchell
contends that the motion court improperly denied relief based upon his w claim without
issuing specific findings of fact and conclusions of law addressing that ciaim. In Point Two,
Mitchell asserts that he pleaded facts (not conclusions), which the record did not refute, entitling
him to post-conviction relief because piea counsel was ineffective Specifically, Mitchell

maintains that the facts pleaded, if proved, Would demonstrate that plea counsel failed to

4

 

investigate and request the first interrogation video and that Mitchell was prejudiced because of
plea counsel’s failure.

Standard of Review

A motion court’s findings of fact and conclusions of law are presumptively correct.
Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991). Thus, appellate review of post-
conviction motions is limited to whether the motion court’s findings and conclusions are “clearly
erroneous.” Morrow v. State, 21 S.W.3d 819, 822 (Mo. banc 2000); Rule 24.035(k). We find
clear error only if, after a full review of the record, we are under the definite and firm impression
that the motion court made a mistake M, 21 S.W.3d at 822. ln our review, we view the
record in the light most favorable to the motion court’s findings and conclusions. Smith v. State,
443 S.W.3d 730, 733 (Mo. App. S.D. 2014).

Further, a movant must meet three requirements to be entitled to an evidentiary hearing
on a post-conviction motion. Morrow, 21 S.W.Bd at 822~23. First, the motion must allege facts,
not conclusions, warranting relief § Second, the facts alleged must raise matters not refuted
by the files and records in the case. I_cL Third, the matters complained of must prejudice the
movant li

flist

I. Point One_Brad}; Claim

ln his first point, Mitchell requests reversal because the motion court, in its written
findings and conclusions, did not address his Br_ady claim.

Rule 24.035(j) requires motion courts to “issue findings of fact and conclusions of law on
all issues presented, whether or not a hearing is held.” This requirement exists because Rule
24.035(k) limits our review to whether the findings and conclusions are clearly erroneous

Accordingly, the findings and conclusions must be sufficiently specific for this Court to conduct

5

a meaningful review. Melton v. State, 260 S.W.3d 882, 886 (Mo. App. E.D. 2008). Were this
Court to furnish our own findings of fact and conclusions of law, we would be engaging in de

novo review, which is not permitted under Rule 24.035(k). Muhammad v. State, 320 S.W.3d

727, 729 (Mo. App. E.D. 2010).

We agree with Mitchell that the motion court did not address the Bi_'ad_y claim in its
judgment ln fact, the motion court made no factual findings regarding the conduct of the
prosecutor"s office, nor any legal conclusions applying the BLady standard Thus, the motion
court’s findings and conclusions are insufficient under Rule 24.035(j) and would normally
warrant a remand with instructions to enter the required findings of fact and conclusions of law.

However, Missouri courts recognize certain situations where remand is not required even
though the motion court fails to address an issue and enter factual findings Muhammad, 320
S.W,3d at 729. A remand for findings of facts is not required in the following circumstances

(l) no finding of fact is necessary where the only issue is one of law, but the court
must still enter a conclusion of law;

(2) an appellate court will not order a useless remand to direct the court to issue a
proper conclusion of law on an isolated issue where it is clear that the movant is
entitled to no relief as a matter of law and will suffer no prejudice by denying a
remand;

(3) findings and conclusions are not required on an allegation if the court grants a
hearing on the motion and the movant fails to present substantial evidence attire
hearing to support that allegation;

(4) findings and conclusions are not required for issues that were not properly
raised or are not cognizable in a post-conviction motion; and,

(5) reversal is not required if the motion itself was insufficient

white v. sara 57 sw.sd 341, 343 (MO. App. s.n. 2001) (ciung crews v. sara 7 s.w.sd 563,

568 (Mo. App. E.D. 1999)). l\/Iitchell asserts, without any further discussion, that “no exception

 

applies here.” The State counters that Mitchell’s M claim is not cognizable under the fourth
exception above.

To be cognizable in a Rule 24.035 proceeding, an alleged disclosure violation must both
(1) attain constitutional significance (i.e. meet the §nwadry requirements), and (2) be of such a
nature that the claim could not have been raised before the Rule 24.035 nrotion. Wallar v. State,
403 S.W.3d 698, 707 (Mo. App. W.D. 2013). Critically, under the Second pr'ong, a Lwy claim
introduced in a Rule 24.035 motion must “involve evidence the defense was not aware of that
was of such significance that the defendant could credibly demonstrate that he would not have
pled guilty, but would have insisted on going to trial, had lie been aware of it.” l_d_. at 705 n.5.

l\/litchell’s _Br_a_d_y claim was based on the prosecution’s failure to disclose the alleged first
interrogation video, which purportedly showed l\/iitchell invoking his right to counsel. 'l`his
evidence, l\/Iitchell contends, would have allowed him to successfully suppress the video of his
later interrogation in which he made an incriminating staternent.4

However, the plain language of l\/Iitchell’s motion acknowledges that Mitchell was aware
of the alleged non-disclosed evidence from the first interrogation before he entered a plea of
guilty, Mitchell’s amended motion states: “Movant will testify that he told plea counsel about
the first interview and asked plea counsel to file a motion for discovery and get any notes or
r'ecording[s] about it. l\/lovant will testify that plea counsel did not file any additional discovery
motion[s] about the first interview.” (Ernphasis added.) Had plea counsel obtained the video,
Mitchell reasons that he could have suppressed his incriminating statements By Mitchell’s own

allegation, he and plea counsel were aware of the alleged first interrogation before his guilty

 

4 _S_e§ Ed\.vards v. Arizona, 451 U.S. 477, 484-85 (l98l) (police must terminate an interrogation when the accused
requests counsel; they cannot resume an interrogation unless an attorney is present or the accused himself initiates
further communication, exchanges or conversations with police).

7

plea. Mitchell contends that he even directed plea counsel to seek discovery of any recording of
the interrogation prior to entering his plea. Given these allegations, Mitclrell could have raised
the w claim#asserting that the State improperly withheld discovery of the first-interrogation
video_with the trial court before he pleaded guilty and, consequently, before his Rule 24.035
motiorr. § W_allar_', 403 S.W.3d at 707. Because Mitchell’s grady claim could have been raised
prior to filing his Rule 24.035 rnotion, his claim is not cognizable in a post-conviction relief
setting. Ld.

Because Mitchell’s ]_B;a_dy claim was not cognizable, any findings of fact and conclusions
of law addressing that claim were unnecessary under the fourth exception stated in W_hi§e, 57
S.W.3d at 343. Accordingly, the trial court did not clearly err by failing to issue findings and
conclusions relating to Mitchell’s §E_dy claim. Point Orre is denied.

II. Point Two--Ineffective Investigation

ln his second point, Mitchell argues that his amended motion pleaded sufficient facts
entitling him to an evidentiary hearing. Specifically, Mitchell posits that his amended motion
pled facts, not refuted by the record, that would prove plea counsel’s ineffectiveness for failing
to investigate and obtain the alleged first-interrogation video.

When asserted in connection with a plea, ineffective assistance of counsel is material
only to the extent that counsel’s performance affected the voluntariness and knowledge with
which the plea was enter'ed. State v. Roll, 942 S.W,2d 370, 375 (Mo. banc 1997). We evaluate
ineffective-assistance claims relating to guilty pleas under the familiar two-prong test established
in Strickland v. Washington. 466 U.S. 668 (1984). Hill v. Lockhart, 474 U.S. 52, 58 (1985).

First~+~under the performance prong of Strickland-mplea counsel’s representation must
fall below the “r'ange of competence” for attorneys in criminal cases Lll, 474 U.S. at 56, 58. A

movant seeking to set aside a guilty plea must demonstrate that counsel’s representation fell

8

 

below an objective standard of reasonableness Roberts v. State, 276 S.W.3d 833, 836 (Mo. banc
2009). We presume that counsel’s performance was effective and counsel’s decisions were
strategic McLaughlin v. State, 378 S.W.3d 328, 337 (Mo. banc 2012).

Second_under the prejudice prong of Strickland_the movant must demonstrate that
there is “a reasonable probability tlrat, but for counsel’s er‘rors, he would not have pleaded guilty
and would have insisted on going to trial.” @, 474 U.S. at 59; Stanley v. State, 420 S.W.3d
532, 544 (Mo. banc 2014). “No hearing is required in the absence of allegations showing
prejudice.” Sthlgy, 420 S.W.3d at 544 (quoting Coates v. State, 939 S.W.2d 912, 914 (Mo.
banc 1997)). lf it is evident that we can dispose of a claim for lack of Strickland prejudice, we
need not address whether counsel’s performance was deficient Jolrnson v. State, 407 S.W.Bd
63, 71 (Mo. App. W.D. 2013) (citing Taylor v. State, 382 S.W.3d 78, 81 (l\/lo. banc 2012)).
Mitchell’s motion did not allege the required prejudice5

Here, Mitchell has the burden to allege facts in his motion that warrantpost-conviction
relief. M, 21 S.W.3d at 823. Mitchell’s motion, therefore, must allege facts supporting the
requisite prejudice prong for a Rule 24.035 motion: but for plea counsel’s alleged ineffectiveness
in failing to investigate and obtain the first interrogation video, lvlitchell would not have pleaded

guilty and would have instead demanded a trial. Stanley, 420 S.W.3d at 544. Mitchell makes no

 

5 In any event, we also question Mitclreli‘s arguments under the performance prong. “A defendant who repeatedly
assures the court at his guilty-plea hearing that he is satisfied with his counsel’s performance and believes his
counsel has done everything defendant requested is barred from obtaining post-conviction relief based on ineffective
assistance of counsel." Whaiton v. State, 431 S.W.3d l, 7 (Mo. App. E.D. 2014). Despite Mitchell’s contention
that he asked plea counsel to investigate recordings of the first interrogation and that plea counsel failed to do so,
Mitchell repeatedly testified at both his plea and sentencing hearings that he had no complaints with plea counsel
and that plea counsel had done everything he had asked Mitche|l’s repeated testimony appears to refute the
allegations relating to the purported first interview that he raised for the first time in his motion. §§ Morrow, 2l
S.W.3d at 823 (no evidentiary hearing is required when the record refutes the matters alleged in the post-conviction
motion).

 

such allegation, rendering his motion insufficient on its face to warrant relief or to require an
evidentiary hearing. Mitchell’s attempt to assert Strickland prejudice states:
Movant was prejudiced because he did not receive this discoverable evidence

prior to trial and Was not able to review the video in order to file a pre-trial motion
to suppress his statements based on his request for counsel.

Had trial counsel not failed to investigate and request any police reports and
recordings of his first interview with detectives, Movant would have had a
reasonable chance of having his statement suppressed based 011 his request of
counsel. (Emphasis added.)

The facts alleged in Mitchell’s statement do not amount to Strickland prejudice
Mitchell’s allegation that he Would have had a reasonable chance of winning a motion to
suppress does not meet the Strickland requirement for prejudice Instead, it was incumbent upon
Mitchell to assert that, but for plea counsel’s ineffectiveness, he would have rejected the plea
agreement with the State, declined to plead guilty, and demanded a trial. Mitchell simply did not
make this allegation6

Further, Mitchell never described the incriminating statement made during the second
interrogation or mentioned what other evidence the State possessed to prove his guilt. For
example, Mitchell argued in a different post-conviction claim not raised on appeal that plea
counsel told Mitchell that he would lose at trial “because of the bar’s surveillance videos, his
recorded statements and the witnesses’ proposed testimony.” Even assuming Mitchell could
have persuaded the trial court to suppress his incriminating statement_the contents of which

were not pleaded-_other evidence of Mitchell’s guilt might have been sufficiently damaging to

 

5 On appeal, Mitchell’s brief attempts to bridge the gap on prejudice by stating: “But for counsel’s failure to
investigate, there is a reasonable probability that counsel would have filed a meritorious motion to suppress Mr.
Mitchell’s incriminating statements, which the trial court would have granted, and that due to the court’s
ruling, Mr. Mitchell would have proceeded to trial.” (Emphasis Added.) Critieally, Mitchell’s motion did not
assert the bolded portion Everr on appeal, Mitchell implies, but fails to specifically aliege that he would have
rejected his plea agreement if counsel had obtained discovery of the alleged first interrogation videc.

10

persuade Mitchell to accept the plea agreernent. Thus, Mitchell failed to adequately allege facts
that, if true, would explain why he would have rejected the plea agreement and demanded a trial.

Because Mitchell did not allege facts Sufficient to support the prejudice prong of
Strickland, his Rule 24.035 motion did not warrant relief on its face. Thus, the motion court did
not clearly err in denying the motion without an evidentiary hearing. Point Two is denied.

Conclusion

The judgment of the motion court denying Mitchell’s amended Rule 24.035 motion

without an evidentiary hearing is affirmed.

d~.£/i&€~_~»¢.¢/

rthRr s. oDENwALD, wage

James M. Dowd, P.J., concurs
Gary M. Gaertner, Jr., J., concurs.

11

 

