                                       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
