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DIVISION TWO
MARCUS KILCRBASE, ) ED102478
)
Appellant, ) Appeal from the Circuit Court
) of the City of St. Louis
v. ) 1422-CC00262
)
STATE OF MISSOURI, ) Honorable Rex M. Burlison
)
Respondent. ) Filed: November 24, 2015
Introduction

Marcus Kilcrease (Movant) appeals the judgment of the motion court denying his
motion to vacate, set aside, or correct the judgment and sentence under Rule 24.035l
(Rule 24.035 Motion) after a partial evidentiary hearing. We afﬁrm.

Background

Movant entered a blind plea of guilty to three counts of assault in the ﬁrst degree
(Counts 1-111), three counts of abuse of a child (Counts IV—VI), and three counts of child
endangerment (Counts VII-IX), arising out of injuries that occurred to minor child Z.B.
between March 15, 2012 and June 6, 2012. The factual basis underlying his pleas, as

presented by the State at Movant’s plea hearing, was the following.

1 All rule references are to M0. R. Crim. P. (2014) unless otherwise indicated.

 

 

011 June 6, 2012, Z.B. was just under two years old. Z.B.’s mother went to work
and left Z.B. and Z.B.’s younger brother home with Movant. Later that morning, Movant
called Z.B.’s mother and told her Z.B. had fallen off of the bed and was not responding to
him. Z.B.’s mother told Movant to call 911.

At the hospital, Z.B.’s mother learned that Z.B. had multiple healed rib fractures,
which were approximately eight weeks old. Z.B. also had a 1.1 centimeter laceration of
the liver with edema and slight swelling of each kidney and the adrenal glands. Z.B. also
had multiple small bowel intussusception. Finally, Z.B. had injuries to her brain
including edema in the layer between her brain and her skull, left subdural hematoma,
and a midline shift of the brain approximately six millimeters. Hospital personnel
declared Z.B. in critical condition, and the original prognosis was that she would not
likely survive due to the swelling of her brain.

When police questioned Movant, he eventually told them that he had lost his
temper when Z.B. had a bathroom accident, and urine leaked from her diaper onto
Movant. He admitted punching 2.8. in the gut and that he “slammed the child.” He also
admitted that during other times when he was with her, he had gotten upset and would
pick her up and squeeze her around her rib cage.

The State charged Movant with three sets of charges for each of three separate
injuries to 2.8. Counts I, IV, and VII were the charges of assault in the ﬁrst degree,
abuse of a child, and child endangerment, respectively, all related to the rib fractures Z.B.
sustained. Counts II, V, and VII were the same three charges relating to Movant
punching Z.B. in the abdomen. Finally, Counts III, VI, and IX related to the slamming of

Z.B. so that her head struck a wall 01‘ the ﬂoor, resulting in her brain injuries.

 

At the time of Movant’s plea, 2.13. was three years old, and she was the same
intellectually that she was at the time she went to the hospital, approximately one year
before. She had eye vision deﬁcits requiring surgery, and she had to wear leg braces as a
result of her neurological injuries.

The plea court sentenced Movant to concurrent terms of life imprisonment for
each of the three ﬁrst-degree assault counts, and seven-year terms of imprisonment on
each of the remaining counts, all sentences to run concurrently. Movant does not contest
the factual basis to support his guilty pleas.

Movant ﬁled his Rule 24.035 Motion, alleging several claims that his plea was
invoiuntary. Among them, he argued that his plea counsel (Counsel) was ineffective for
advising him that the plea court would not sentence him to a term of more than 10 years
in prison. Additionally, Movant argued that his pleas of guilty to three separate crimes
arising from each injury to Z.B. violated double jeopardy.

The motion court held an evidentiary hearing on the issue of Counsel’s advice to
Movant, after which it denied Movant’s Rule 24.035 Motion. This appeal follows.

Standard of Review
Our review of Movant’s motion is limited to the determination of whether the

ﬁndings and conclusions of the motion court are clearly erroneous. Rule 24.0350); State

 

v. Nunley, 980 S.W.2d 290, 291 (Mo. banc 1998). We will ﬁnd the motion court’s
judgment clearly erroneous only if, after reviewing the entire record, we are left with a
deﬁnite and ﬁrm impression that a mistake has been made. Nunley, 980 S.W.2d at 29}-

92. We defer to the motion court’s determinations of credibility and presume that the

 

 

motion court’s ﬁndings and conclusions are correct. Moore v. State, 207 S.W.3d 725,

729 (Mo. App. SD. 2006).

Point I

 

Movant argues that the motion court clearly erred in denying his motion because
Counsel was ineffective for assuring him that the plea court would not sentence him to
more than 10 years in prison. We disagree.

Where there is a plea of guilty, claims of ineffective assistance of counsel are
relevant only to the extent they affect the voluntariness of the plea. Nunn v. State, 23
S.W.3d 910, 912-13 (Mo. App. WD. 2000). In order to prevail on such a claim, a
movant must show that his or her counsel’s performance was deﬁcient and that the
movant was prejudiced thereby. g at 912 (citing Strickland v. Washington, 466 US.
668, 687 (1984)). The movant must prove his or her claim of ineffective assistance of
counsel by a preponderance of the evidence. Rule 24.035(i).

A movant may be entitled to relief when he or she has a mistaken belief regarding
the sentence he or she will receive; “the test is whether a reasonable basis exists in the
record for such belief.” Bates v. State, 421 S.W.3d 547, 553 (Mo. App. ED. 2014). A
mere prediction from counsel about the possible sentence will not render a plea-
involuntary. L

Here, Movant alleged in his motion that Counsel told Movant and Movant’s
parents that Movant would not receive a sentence longer than 10 years. At the
evidentiary hearing, Movant as well as each of his parents confirmed that they all

believed Movant would receive a 10—year sentence based on what Counsel told them.

 

However, Movant also testiﬁed that Counsel never used the words “I promiseﬂ”
regarding a particular sentence.

Counsel testiﬁed at the hearing that he told Movant he did not know what
sentence the court would impose and that he never told Movant it would be no more than
10 years. He testiﬁed that he asked Movant what sentence he would accept so that he
could try to negotiate with the prosecutor, and Movant never agreed to a particular
number. Counsel also said that the State did not make any plea offers.

In its judgment, the motion court noted that at the plea hearing, Movant stated he
understood the range of punishment and that he would be required to serve at least 85%
of his sentence. After Movant pled guilty, in response to the plea court’s questions
regarding counsel’s assistance, Movant had complaints, but he did not complain that
counsel had promised him he would not receive more than 10 years. The motion court
found the questions put to Movant were specific enough regarding any promise made
about Movant’s sentence, and that Movant’s claim was refuted by the record of the guilty
plea hearing. The motion court further found Counsel's testimony at the evidentiary
hearing to be credible and concluded that Counsel did not promise Movant a sentence not
to exceed ten years.

From our review of the record, as well as our deference to the motion court’s
credibility ﬁndings, we cannot conclude the motion court clearly erred. Point denied.

Point ll

 

Movant argues that his convictions violate his constitutional protection against
double jeopardy, because one course of conduct underlies each of the three groups of the

charges of ﬁrst-degree assault, child abuse, and child endangerment. We disagree.

 

A constitutional claim of double jeopardy is a legal question we review de novo.
State V. Daws, 311 S.W.3d 806, 808 (Mo. banc 2010). The double jeopardy clause of the
Fifth Amendment offers not only protection from successive prosecutions for the same
offense, but also “protection from multiple punishments for the same offense.” l_d.
(quoting State v. Flenoy, 968 S.W.2d 141, 143 (Mo. banc 1998)). However, prosecution
for multiple offenses arising out of the same conduct is not per se unconstitutional. ﬂare
V. Walker, 352 S.W.3d 385, 388 (Mo. App. ED. 2011). “[A] defendant may be charged
with and convicted of several offenses arising from the same transaction, incident, or set
of facts without offending the double-jeopardy clause if the legislature intended to punish
the conduct under more than one statute.” l_d.

Here, Movant argues that the court violated double jeopardy by simultaneously
convicting him of ﬁrst-degree assault, child abuse, and child endangerment, based on the
same underlying conduct. Movant essentially argues this happened three times, because
the same three charges resulted from three separate instances of injury to 2.3. For the rib
fractures, the State charged Movant with ﬁrst-degree assault, child abuse, and child
endangerment. The State charged Movant again with the same three offenses for the
punch to Z.B.’s abdomen, and the same three charges again for slamming her against
either the ﬂoor or the wail.2 The plea court sentenced Movant for all three charges

associated with each injury. Movant argues each set of the three convictions violated

2 We do not consider whether these two injuries constitute separate units of prosecution, as Movant does
not raise this argument, and it is unclear in the record how much time passed between punching 2.13. and
slamming her against the wall or ﬂoor. We note only that when charges arise from a single set of facts but
are based on different acts for which the defendant formed an intent to attack the victim, the charges do not
violate double jeopardy. State v. Tyler, 196 S.W.3d 638, 641 (Mo. App. W.D. 2006) (ﬁnding hea'dbutting
and stabbing during same phase of attack constituted separate assault charges); see also Schoﬁeld v. State,
750 S.W.2d 463, 466 (Mo. App. W.D. 1988) (double jeopardy not violated with three separate assauit
convictions for stabbing victim with knife, beating victim with piece of wood, and strangling victim with
nylon strap during ongoing attack).

double jeopardy. Because the State charged the same three offenses for each incident of
injury, our double-jeopardy analysis applies to each of them. Our question is whether a
person may legally be found guilty of ﬁrst-degree assault, child abuse, and child
endangerment, for the same underlying conduct.

“With respect to cumulative sentences imposed . . ., the Double Jeopardy Clause
does no more than prevent the sentencing court from prescribing greater punislnnent than
the legislature intended.” State v. Hardin, 429 S.W.3d 417, 421 (Mo. banc 2014)
(quoting Missouri V. Hunter, 459 US. 359, 366 (1983)). “Double jeopardy analysis
regarding multiple punishments is, therefore, limited to determining whether cumulative

punishments were intended by the legislature.” Hardin, 429 S.W.3d at 421 (quoting State

 

v. McTush, 827 S.W.2d 184, 186 (Mo. banc 1992)).

Thus, we turn to the statutes under which Movant was convicted. Section
565.0503 (ﬁrst—degree assault), Section 568.060, RSMo. (2000) (ﬁrst-degree child abuse),
and Section 568.045 (endangering the welfare of a child) are all silent with respect to
whether cumulative punishment under these sections is authorized. See State v. Horton,
325 S.W.3d 474, 478 (Mo. App. E.D. 2010) (second-degree abuse and child abuse
statutes are silent with respect to cumulative punishment). In such a case, we 100k to
Section 556.041, which provides, “When the same conduct of a person may establish the
commission of more than one offense he may be prosecuted for each such offense.” E
State v. Sutton, 320 S.W.3d 729, 736 (Mo. App. E.D. 2010). This section contains four
exceptions, the ﬁrst of which is when “[o]ne offense is included in the other.” Section

556.0410).

3 All statutory references are to RSMo. (Supp. 2012) unless otherwise indicated.

7

 

This codiﬁes the Fifth Amendment’s protection from being convicted by both a
primary offense as well as a lesser-included offense. To determine whether one offense
is included in another, we apply the “same elements” test set forth by the United States
Supreme Court in Blockburger v. United States, 284 US. 299 (1932). Sutton, 320
S.W.3d at 736. “Under this test, if each offense requires proof of a fact that the other
does not, then the offenses are not lesser included offenses, notwithstanding a substantial
overlap in the proof offered to establish the crimes.” Li- (qtloting State v. McTush, 827
S.W.2d 184, 188 (Mo. banc 1992)) (internal alterations omitted). The focus is on the

elements in theory, rather than the speciﬁc facts of the underlying conduct at issue.

 

Sutton, 320 S.W.3d at 736 (citing State v. Derenzy, 89 S.W.3d 472, 474 (Mo. banc

2002)).

Here, Movant claims that child abuse and child endangerment are lesser-included
offenses of first-degree assault. However, each of these three offenses requires proof of a
fact which the others do not. As charged here, assault in the first degree required proof
that Movant knowingly caused serious physical injury to Z.B. Section 565.050. Child
abuse required proof that Movant knowingly inﬂicted cruel and inhuman punishment
upon a child less than 17 years old. Section 565.060, RSMo. (2000). The assault charges
required proof of serious physical injury, which child abuse did not. Similarly, child
abuse required proof of cruel and inhuman punishment upon a child under 17, which
assault did not. Thus, neither offense is included in the other. & State v. ﬁction, 325
S.W.3d 474, 479 (Mo. App. ED. 2010) (neither second-degree assault nor child abuse is

lesser-included offense).

Further, child endangerment is not included within ﬁrst-degree assault. Child
endangerment requires proof that the defendant knowingly acted in a manner that created
a substantial risk to the life, body, or health of a child less than 17 years old. Section
568.045. Serious physical injury is an element of ﬁrst-degree assault, but no physical

injury to the child is necessary to convict a defendant of child endangerment. & State v.

 

Davis, 407 S.W.3d 721, 725 (Mo. App. SD. 2013) (harm to child does not have to occur

 

to trigger application of child endangerment statute). Likewise, the victim of child
endangerment must be a child iess than 17 years old, whereas assault may be committed
against any other person. & State v. Hines, 377 S.W.3d 648, 658 (Mo. App. SD. 2012)
(age of victim is eiement of child endangerment).

Finally, child abuse and child endangerment are separate offenses. Statej,
m, 979 S.W.2d 237, 243 (Mo. App. W.D. 1998). A defendant’s constitutional
rights are not violated by conviction of both offenses for the same underlying conduct.
11.

Thus, the motion court did not clearly err in determining Movant’s convictions
did not violate the Fifth Amendment’s protection against double jeopardy, though each
set of three charges was based on a common set of underlying facts. Point denied.

Conclusion

We defer to the motion court’s credibility ﬁndings, and in doing so, ﬁnd the
motion court did not clearly err in determining that Counsel was not ineffective in
advising Movant regarding the sentence he would receive. Additionally, Movant’s
convictions for ﬁrst-degree assault, chiid abuse, and child endangerment, stemming from

the same underlying facts, did not violate his Fifth Amendment protection against double

jeopardy because each ‘offense required proof of a fact that the other two did not. . We

afﬁrm.

Philip M. Hess, P. J ., concurs.
Angela T. Quigless, J., concurs.

 

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