                        In the Missouri Court of Appeals
                                Eastern District
                                               DIVISION TWO


    DANIELL W. BIBBS,                                        )   No. ED107490
                                                             )
           Appellant,                                        )   Appeal from the Circuit Court of
                                                             )   St. Louis County
    vs.                                                      )
                                                             )   Honorable John D. Warner, Jr.
    STATE OF MISSOURI,                                       )
                                                             )
           Respondent.                                       )   Filed: March 10, 2020

                                                  Introduction

          Daniell Bibbs (“Movant”) appeals the motion court's judgment denying his Rule 24.0351

motion for post-conviction relief without an evidentiary hearing. He contends the motion court

clearly erred in denying (1) his claim that his pleas were involuntary and unknowing and (2) his

claim of ineffective assistance of counsel. Specifically, in Point I Movant contends that after the

charges were read to him he told the court “there was nothing forcible” about his conduct and the

three charges he pled guilty to contained identical language. In Point II Movant contends plea

counsel was ineffective for failing to investigate evidence the victim had made false or

unsubstantiated allegations of a sexual nature against other men. We affirm.




1
 All rule citations are to the Missouri Supreme Court Rules (2017), which was the version of the Rule in effect at the
time Movant’s pro se motion for post-conviction relief was filed on October 30, 2017.
                                            Factual Background

        On August 12, 2015 Movant was charged with three counts of sexual abuse in the first

degree, one count of felonious restraint, and one count of attempted rape in the first degree.

Movant initially pled not guilty. However, on April 27, 2017 Movant pled guilty to three counts

of sexual abuse in the first degree and one count attempted rape in the first degree under a plea

agreement with the State. The State of Missouri entered a nolle prosequi on the felonious restraint

count as part of the plea agreement.2 Before entering his pleas, Movant admitted no one forced

him to plead guilty. Movant also admitted plea counsel fully advised him of the charges the State

filed against him. Movant admitted plea counsel discussed the case at length with him, answered

all his questions, and he was satisfied with plea counsel’s services.

        During the plea hearing, the State read the indictment and recited these facts: on or about

July 6, 2014 Movant woke K.K. (“victim”) in the middle of the night and asked her if she wanted

to learn to drive. When she declined, Movant forced the victim to the car and touched her breasts

under her shirt. The victim tried to get out of the car, but Movant drove her to another residence,

where he tried to force her pants down and made her touch his penis with her hand. Movant rubbed

his penis up and down on the victim over her clothes and put his mouth on her vagina over her

clothes. The victim told Movant she wanted to go home, but he restrained her by pushing and

pulling her and holding her down by the neck.

        When asked by the plea court if all those facts were substantially true and correct, Movant

answered “not all of them,” because “there was nothing forcible about it.” However, Movant

subsequently confirmed the facts were correct and these events took place between him and the

victim. Movant also admitted he was freely and voluntarily pleading guilty because he had actually


2
 Nolle prosequi is a voluntary dismissal of a felony charge by a prosecutor. State v. Williams, 407 S.W.3d 691, 693
(Mo. App. E.D. 2013).


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committed the offenses outlined by the State. Movant admitted no one told him what to say during

his plea hearing or forced him to plead guilty. Movant admitted he understood by pleading guilty,

he was giving up his right to a trial. Movant then pled guilty to three counts of sexual abuse in the

first degree and one count of attempted rape. Movant was sentenced to seven years’ imprisonment

for each of the sexual abuse in the first degree charges and ten years’ imprisonment for the

attempted rape charge, with all sentences to run concurrently. The plea court found Movant’s

pleas were made voluntarily and intelligently and there were sufficient factual bases for Movant’s

pleas. The plea court accepted his four guilty pleas.

       After receiving his sentence, Movant admitted plea counsel did “everything [Movant]

wanted him to do as far as looking into [his] case” and did “the best that he could.” However, he

told the plea court he was not satisfied with plea counsel’s services because plea counsel did not

“look into” whether the victim made similar false or unsubstantiated claims against other men.

Plea counsel responded he was not aware of any similar accusations. Based on Movant’s

statements and plea counsel’s response, the plea court found there was no probable cause or prima

facie basis for ineffective assistance of counsel.

       Movant timely filed a pro se Rule 24.035 motion for post-conviction relief on October 30,

2017. On December 6, 2017 the Office of the Public Defender was appointed to represent Movant.

On January 31, 2018 post-conviction counsel entered her appearance on behalf of Movant. On

February 5, 2018 post-conviction counsel moved for a thirty-day extension to file an amended

motion, which the motion court granted. Movant’s amended motion and request for an evidentiary

hearing was timely filed on March 6, 2018. In the amended motion, Movant argued the plea court

erred in accepting his pleas “without sufficient factual bases” because he told the plea court there

was “nothing forcible” about his conduct and the charges against him contained identical language.




                                                     3
Movant also argued his plea counsel was ineffective for failing to investigate evidence that the

victim made false or substantiated allegations against other men.3 Movant contended plea

counsel’s performance prejudiced him and rendered his pleas unknowing, unintelligent, and

involuntary.

        The motion court denied Movant’s Rule 24.035 motion for post-conviction relief without

an evidentiary hearing. The motion court found Movant’s claim there were no factual bases for

his pleas because he denied the element of forcible compulsion was refuted by case law and the

record. The motion court found factual bases were established not by Movant’s direct admission

to each individual element, but by his admissions on the record as a whole. The motion court also

found the State recited facts that distinguished three counts of sexual abuse and one count of

attempted rape at the plea hearing. The motion court determined those facts were clear, concise,

and on the record. The motion court found Movant’s claim that plea counsel was ineffective for

failing to investigate whether the victim made similar allegations against other men was refuted

by the record and had no merit because Movant stated on record he believed plea counsel did the

best he could as his attorney.

        This appeal followed.

                                            Standard of Review

        We review the denial of a Rule 24.035 motion for post-conviction relief to determine

whether the motion court's findings of facts and conclusions of law are clearly erroneous. Rule

24.035(k). “A motion court's findings are presumed correct and we will overturn the ruling only




3
 In his amended motion, Movant argued plea counsel was ineffective because he failed to object to Movant’s
acceptance of the pleas without factual bases. The motion court denied this claim without an evidentiary hearing.
Movant does not raise this issue on appeal.


                                                       4
if we are left with a definite and firm impression that a mistake has been made.” Nichols v. State,

409 S.W.3d 566, 569 (Mo. App. E.D. 2013).

                                              Discussion

        In both points relied on, Movant claims the motion court clearly erred in denying his 24.035

post-conviction motion without an evidentiary hearing. Movant contends he pled facts, not

conclusions, that the record does not conclusively refute and that entitle him to post-conviction

relief. To be entitled to an evidentiary hearing on a Rule 24.035 motion, the Movant must satisfy

a three-prong test: (1) he must allege facts not conclusions which, if true, would warrant relief, (2)

the facts must not be refuted by the record, and (3) the matters complained of must have resulted

in prejudice to the Movant. Smith v. State, 353 S.W.3d 1, 3 (Mo. App. E.D. 2011). Under Rule

24.035(h), if the motion court determines the record conclusively shows the Movant is not entitled

to relief, an evidentiary hearing shall not be held. Id.

                                                Point I

        Movant argues his guilty pleas were made unknowingly and involuntarily. The State

argues Movant has waived this claim because it differs from the claim raised in his amended

motion. Alternatively, the State contends this argument is refuted by the record.

        In Claim 8(a)(1) of his amended motion, Movant asserted the trial court erred in accepting

his guilty pleas without sufficient factual bases. In his brief on appeal, Movant argues his guilty

pleas were involuntary and unknowing. When Movant filed his amended motion, our case law

commonly conflated these inquiries.

        Claims not raised in a motion for post-conviction relief are deemed waived and cannot be

reviewed on appeal. Tisius v. State, 519 S.W.3d 413, 431 (Mo. banc 2017). In the past, Missouri

courts have routinely used “factual basis” synonymously and interchangeably with a “knowing




                                                   5
and voluntary plea.” Booker v. State, 552 S.W.3d 522, 527 (Mo. banc 2018). However, as the

Missouri Supreme Court noted in Booker, “factual basis” and a “knowing and voluntary plea” are

distinguishable and not interchangeable terms, and using “factual basis” synonymously with

“knowing and voluntary plea” is a misapplication of the law. Id. at 529. Booker asserted any case

law to the contrary should no longer be followed. Id.

        The Booker Court clarified the law controlling claims conflating “factual basis” and

“knowing and voluntary plea” issues in post-conviction relief. Because of this intervening change

of law this Court will exercise its discretion to review Point I ex gratia.4 See State v. Munoz, 345

S.W.3d 888, 891 (Mo. App. W.D. 2011) (reviewing a waived claim of trial court error ex gratia).

        Whether viewed as a factual basis claim or a claim his pleas were unknowing and

involuntary, the motion court did not clearly err. Movant failed to allege prejudice in Claim 8(a)(1)

of his amended motion. To be entitled to an evidentiary hearing, the Movant must allege that his

complaints resulted in prejudice. Stanley v. State, 490 S.W.3d 389, 392 (Mo. App. E.D. 2016).

Movant failed to do so. However, had Movant alleged prejudice in his amended motion, Movant’s

claim is refuted by the record because the record clearly shows (1) sufficient factual bases for

Movant’s pleas and (2) his pleas were made knowingly and voluntarily.

        1. Movant’s Pleas Were Knowingly and Voluntarily Made.

        Reviewing Movant’s claim his pleas were involuntarily and unknowingly entered, his

claim is refuted by the record. A plea of guilty is constitutionally valid only if it is voluntary and

intelligent. Booker, 522 S.W.3d at 527. On appeal, a reviewing court examines whether the case

record, as a whole, supports a finding that the plea was knowingly and voluntarily entered. Id. at

528.


Movant’s amended motion was filed on March 6, 2018, prior to the Missouri Supreme Court’s decision in Booker.
4

However, Movant’s Statement, Brief, and Argument was filed on September 13, 2019 after the Booker decision.


                                                     6
       The record supports a finding that Movant’s pleas were knowingly and voluntarily entered.

Movant admitted the facts outlined by the State were true. He admitted he was pleading guilty

because he committed the crimes described by the State. Movant argues on appeal his pleas were

unknowing and involuntary for two reasons: (a) Movant told plea court there was “nothing

forcible” about his conduct and (b) the charges against him contained identical language.

However, these arguments are not persuasive.

       a) Movant’s statement to plea court there was “nothing forcible” about his conduct.

       Movant first contends his pleas were entered unknowingly and involuntarily because,

during his plea hearing, he told the plea court “there was nothing forcible about” his conduct. The

State contends this statement merely reflects Movant’s belief that his actions should not constitute

the legal definition of “force.” Movant, however, argues this statement was a denial of an essential

element of all four counts. Movant’s disagreement that his conduct resulted in guilt of the charges

does not establish his pleas were unknowing or involuntary. Movant admitted on the record he

understood by pleading guilty, he gave up his right to a trial. Even if the accused maintains his

innocence, so long as the plea of guilty represents a voluntary choice of alternatives available to

him, according to his conception of his own best interests, it is not involuntary. Small v. State, 646

S.W.2d 903, 905 (Mo. App. E.D. 1983). When given the opportunity to clarify his statement there

was “nothing forcible” about it, Movant agreed with the trial court that, other than the forcefulness,

the facts were correct and the facts the prosecutor described took place between him the victim.

Movant told the plea court he was “freely stating and admitting that [he was] guilty of the criminal

charges the State has brought against [him].” Movant also admitted no one told him what to say

during his plea hearing or forced him to plead guilty. Therefore, Movant’s claim that his pleas

were unknowing and involuntary is refuted by the record when examined as a whole.




                                                  7
         b) The three counts of sexual abuse contained identical language.

         Movant next contends his pleas were unknowing and involuntary because the three counts

of sexual abuse he pled guilty to contained identical language. This claim is similarly refuted by

the record. The Movant admitted he was fully advised by plea counsel of all legal aspects of his

case, including his legal rights and the consequences of his four guilty pleas. Additionally, the

State described instances of sexual abuse in detail, including touching the victim’s breasts under

her shirt, making her touch his penis with her hand, rubbing his penis up and down her body over

her clothes, and putting his mouth on her vagina over her clothes. These sexual acts constitute

more than three instances of sexual abuse. Movant’s claim that the pleas were unknowing and

involuntarily because of the use of identical language is refuted by the record when examined as a

whole.

         Movant’s four guilty pleas were entered knowingly and voluntarily because Movant

admitted the facts outlined by the State occurred and he was guilty of the charges. Additionally,

at the plea hearing the State described in detail the incident between Movant and the victim and

outlined more than three instances of sexual abuse. Movant’s arguments do not establish his pleas

were unknowingly and involuntarily made. The recitation of the facts and Movant’s colloquy with

the plea court establish Movant pled guilty with an awareness of the circumstances and their

probable consequences.

         2. There Were Sufficient Factual Bases for Movant’s Pleas.

         If Movant had maintained his claim the plea court erred in accepting his pleas without

sufficient factual bases, his claim is also refuted by the record.5 In Missouri, the plea court may


5
 Our colleagues in the Southern District recently interpreted Booker as holding claims that no factual basis was
established for guilty pleas, as required by Rule 24.02(e), are “not cognizable in a post-conviction proceeding.” Martin
v. State, 568 S.W.3d 78, 81 (Mo. App. S.D. 2019). The Southern District reasoned factual basis claims are “not
cognizable” because Rule 24.035(a) only allows claims that “the conviction or sentence imposed violates the


                                                           8
not enter judgment on a plea of guilty until it makes a determination there is a factual basis for the

plea. Ivy v. State, 81 S.W.3d 199, 202 (Mo. App. W.D. 2002) (citing Rule 24.02(e)). The factual

basis requirement for a plea is not constitutionally mandated; however, it assists a judge in “making

the constitutionally required determination that a defendant’s plea of guilty is truly voluntary.”

Booker, 522 S.W.3d at 527. Because a guilty plea admits all the elements of a formal criminal

charge, it cannot be truly voluntary unless the defendant possesses an understanding of the law in

relation to the facts. Id. A factual basis exists when the conduct the defendant admits establishes

the defendant’s commission of the offense that is the subject of the plea. Id. The defendant must

understand that the conduct he or she is admitting to is the same as the conduct outlined by the

State. The factual basis requirement “serves as a safeguard to the defendant who is in the position

of pleading voluntarily without an understanding of the nature of the charge but without realizing

that his conduct does not actually fall within the charge.” Id. at 528.

         In his amended motion, Movant contended there were insufficient factual bases to support

his pleas of guilty. This contention is refuted by the record. The State read Movant’s indictment

at the plea hearing, which alleged he used forcible compulsion to force the victim to have sexual

contact with him and restrain her. Movant admitted that, other than his contention that the incident

with the victim was not forcible, the facts alleged by the State were correct. Additionally, he

admitted that the conduct alleged by the State actually did occur between the Movant and the

victim. He told plea court he “actually committed” the three counts of first degree sexual abuse

and one count of first degree attempted rape.




constitution and laws of this state,” and the Missouri Supreme Court recently clarified in Booker that “a sufficient
factual basis is not constitutionally required.” Id. Because we are exercising our discretion to review Movant’s
involuntary and unknowing plea argument in his brief on the merits, it is not necessary for us to review whether factual
basis claims are no longer cognizable under Rule 24.035(a) post Booker.


                                                           9
       Movant’s arguments about the language used by the State at his plea hearing and his

statement to the plea court about force do not establish a lack of factual bases for his guilty pleas.

Movant admitted he understood the facts described by the State and those facts were correct.

       The motion court did not clearly err in denying Movant relief without an evidentiary

hearing for Movant’s claim his pleas were entered without sufficient factual bases to support them.

Movant’s argument on appeal his pleas were entered involuntarily and unknowingly is meritless.

       Point I is denied.

                                              Point II

       In Point II, Movant argued plea counsel was ineffective because of his failure to investigate

evidence that the victim made similar false or unsubstantiated allegations against other men. To

be entitled to an evidentiary hearing based on a claim of ineffective assistance of counsel, a Movant

must allege unrefuted facts establishing that counsel’s performance was both deficient and

prejudicial. Strickland v. Washington, 104 U.S. 2052, 2068 (1984). If the Movant pled guilty, he

must show that but for counsel’s errors, he would not have pled guilty and would have insisted on

going to trial. Smith, 353 S.W.3d at 3. To establish counsel ineffectiveness, Movant must show

that counsel’s performance fell far below an objective standard of reasonableness. Blair v. State,

402 S.W.3d 131, 135 (Mo. App. W.D. 2013). Following a guilty plea, “the effectiveness of

counsel is relevant only to the extent that it affected whether or not the plea was made voluntarily

and knowingly.” Id.

       To obtain an evidentiary hearing based on plea counsel’s failure to investigate, Movant

needed to “specifically identify who the witnesses were, what their testimony would have been,

whether or not counsel was informed of their existence, and whether or not they were available to

testify.” Morrow v. State, 21 S.W.3d, 819, 823 (Mo. banc 2000). In his amended motion, Movant




                                                 10
made only conclusory statements about one specific man and vague references to other

unidentified men victim has allegedly accused. Movant did not allege what the men’s testimony

would have been or if they were available to testify. Additionally, plea counsel denied any prior

knowledge that the victim made similar false or unsubstantiated claims in the past. Specifically,

after Movant told plea court about the existence of these men, plea counsel stated “I can say, as a

matter of fact, that I have never heard that until right now.”

       Even if Movant alleged with specificity the identity of the potential witnesses, their

willingness to testify, and plea counsel’s knowledge of their existence, the record refutes Movant’s

claim. At his plea hearing, Movant admitted he was satisfied with plea counsel and had no

complaints or criticisms about his services. Movant admitted plea counsel “did the things

[Movant] wanted him to as far as looking into [Movant’s] case, preparing it, and putting it in the

best position” and “did the best that he could.” Movant also admitted he did not think plea counsel

needed to do any further investigation into his case, including looking for new witnesses or

evidence.

       The motion court did not clearly err denying Movant’s claim plea counsel failed to

investigate victim’s alleged allegations against other men without an evidentiary hearing.

       Point II is denied.




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                                           Conclusion

       After reviewing the entire record, we are not left with a definite and firm impression that a

mistake has been made. We conclude the record refutes Movant’s claims that his pleas either

lacked factual bases or were unknowing and involuntary and that his plea counsel was ineffective.

No evidentiary hearing was required. The motion court did not clearly err by denying Movant’s

24.035 motion for post-conviction relief without an evidentiary hearing. The judgment of the

motion court is affirmed.



                                             _______________________________
                                             Philip M. Hess, Presiding Judge


Kurt S. Odenwald, J. and
Lisa P. Page, J. concur.




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