            In the Missouri Court of Appeals
                    Eastern District
                                         DIVISION ONE

JERRELL J. BELL,                                    )         ED103398
                                                    )
       Appellant,                                   )         Appeal from the Circuit Court of
                                                    )         St. Louis County
v.                                                  )         13SL-CC02474
                                                    )
STATE OF MISSOURI,                                  )         Honorable Colleen Dolan
                                                    )
       Respondent.                                  )         Filed: September 6, 2016


                                        INTRODUCTION

       Jerrell J. Bell ("Defendant") appeals from the denial of his Rule 24.035 motion for post-

conviction relief without an evidentiary hearing. We affirm.

                                         BACKGROUND

       On January 25, 2011, Reginald Gillespie and Jerome Streeter were standing near the

corner of Shepley Drive and Lilac Drive in St. Louis County. Defendant shot at Mr. Gillespie,

intending to hit him, but missed. Instead, the bullet hit Mr. Streeter, seriously injuring him.

       Defendant was charged with one count of felony assault in the first degree, as a class A

felony, and one count of armed criminal action. On November 2, 2011, attorney Christine

Goulet ("Plea Counsel") entered her appearance on behalf of Defendant.
        On April 11, 2013, Defendant appeared in court with Plea Counsel and pleaded guilty—

pursuant to a plea agreement—to the felony assault charge.1 During the hearing, the court found

no probable cause to indicate that Plea Counsel was ineffective. Defendant received a twelve

year sentence.

        Defendant timely filed both his pro se and amended motion for post-conviction relief per

Rule 24.035,2 which the court denied without an evidentiary hearing.

        This appeal follows.

                                                DISCUSSION

        Defendant submits two points on appeal, asserting in each that the motion court clearly

erred in denying his motion for post-conviction relief without an evidentiary hearing, thereby

depriving him of his right to due process of law and effective assistance of counsel as guaranteed

by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article I,

sections 10 and 18(a) of the Missouri Constitution, as well as his right to be free of cruel and

unusual punishment under the Eighth Amendment to the United States Constitution.

Specifically, Defendant contends that (I) the trial court clearly erred in accepting Defendant's

guilty plea on the class A felony without a sufficient factual basis, and (II) Plea Counsel was

ineffective in brokering and recommending the plea deal containing the class A felony, and but

for Plea Counsel's acts, the results of his proceedings would have been different.




1
  As part of the plea agreement, the Armed Criminal Action count was dismissed.
2
  Defendant filed his pro se motion for post-conviction relief on July 5, 2013, and the court appointed the Missouri
State Public Defender's Office to represent him. Defendant's amended motion was due Sunday, September 22,
therefore Defendant was granted until Monday, September 23 to either file an amended motion or request an
extension. On that day, attorney Amy Lowe entered her appearance and requested an additional thirty days to file an
amended motion, which the court granted until October 22 and on which date Ms. Lowe faxed the amended motion
to the court in compliance with St. Louis County Local Rule 3.5. Therefore, Defendant's motion was timely filed.

                                                         2
Point I – No Clear Error by Trial Court in Accepting Defendant's Guilty Plea

        Defendant first contends that the trial court clearly erred in accepting Defendant's guilty

plea on the class A felony without a sufficient factual basis. We disagree.

                                         Standard of Review

        Appellate review of the denial of a Rule 24.035 motion is limited to determining whether

the trial court’s findings and conclusions are clearly erroneous. See Rule 24.035(k). The motion

court's findings and conclusions will be deemed clearly erroneous only if a review of the entire

record leaves this court with the definite and firm impression that a mistake has been made.

Chipman v. State, 274 S.W.3d 468, 471 (Mo. App. S.D. 2008); see also Weeks v. State, 140

S.W.3d 39, 44 (Mo. banc 2004). Defendant's burden is by a preponderance of the evidence.

Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009). Appellate review in post-conviction

cases is not de novo; rather, the findings of fact and conclusions of law are presumptively

correct. Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991).

                                               Analysis

        "The court shall not enter a judgment upon a plea of guilty unless it determines that there

is a factual basis for the plea." Rule 24.02(e). The factual basis is necessary to ensure that the

guilty plea was intelligently and voluntarily entered, thereby satisfying due-process

requirements. O'Neal v. State, 236 S.W.3d 91, 95 (Mo. App. E.D. 2007); see also Rule 24.02(c)

("The court shall not accept a plea of guilty without first . . . determining that the plea is

voluntary and not the result of force or threats or of promises apart from a plea agreement."). A

factual basis exists if the defendant understands the facts presented at the guilty-plea proceeding,

and those facts establish the commission of the charged crime. Id. at 96. The required factual

basis can be established by the defendant's testimony, or his acknowledgment of facts recited by



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the prosecutor. Id. at 95-96. So long as a defendant understands the nature of the charges

against him, trial courts are not required to explain every element of the crime. Id.

       "Relief under [Rule 24.02] is available only for an error of law that is jurisdictional,

constitutional, or constitutes a fundamental defect which inherently results in a complete

miscarriage of justice." Schuerenberg v. State, 98 S.W.3d 922, 923-24 (Mo. App. S.D. 2003).

Rule 24.02(e) is not constitutionally based; rather, its purpose is to aid in the constitutionally

required determination that a defendant enter his or her plea of guilty intelligently and

voluntarily. Id.; see also Price v. State, 137 S.W.3d 538, 541 (Mo. App. S. D. 2004) ("Rule

24.02 is patterned after Fed. R. Crim. P. 11, [therefore] federal precedents are strong, persuasive

authority when applying Missouri's rules."). Rule 24.02(e) serves as protection for “an accused

who may appear to be pleading voluntarily and with an understanding of the nature of the

charge, but who does so without realizing that his conduct does not actually fall within the

charge.” Chipman, 274 S.W.3d at 472; quoting Price, 137 S.W.3d at 541-542; see also

McCarthy v. U.S., 394 U.S. 459, 467, (1969) (superseded on other grounds by rule amendment).

       Here, the Defendant has not met his burden to show he made an unknowing or

involuntary plea because, after a review of the relevant statutory provisions and prior case law,

there are clear indications that Defendant's conduct fits the charge of First Degree Assault as a

Class A Felony.

       Section 565.050 (RSMo 2000) reads as follows:

       1. A person commits the crime of assault in the first degree if he attempts to kill or
       knowingly causes or attempts to cause serious physical injury to another person.
       2. Assault in the first degree is a class B felony unless in the course thereof the actor
       inflicts serious physical injury on the victim in which case it is a class A felony.

Defendant was charged with First Degree Assault for knowingly attempting to cause serious

physical injury to Mr. Gillespie. Defendant admitted to these facts at his guilty plea hearing,

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which would undeniably make him guilty of the class B felony of assault in the first degree.

However, Defendant missed Mr. Gillespie and seriously injured a bystander, Mr. Streeter.3

Under these facts, the State charged Defendant with a Class A felony, and Defendant pleaded

guilty to the heightened charge.4 Defendant stated he understood the full range of punishment

for the Class A charge, that the State was seeking a twelve year sentence, and that he was

"entering this plea of guilty voluntarily and of your own free will because you are guilty as

charged."

           Defendant now contends that he could not have intelligently and voluntarily pled to the

Class A level felony, solely because the statute demands the intended target and the person

actually wounded be one in the same. We disagree.

           In State v. Scott, 769 S.W.2d 149, 151 (Mo. App. S.D. 1989), Evans and his friends were

socializing in a club when they heard defendant Scott was insulting them. Evans confronted

Scott, and they scuffled. Scott pulled a gun and shot Evans in the head. He then shot into the

background—in the direction of Evans' friends. Scott did not hit any of Evans' friends, but

instead hit an unrelated bystander, McGowan. The state charged Scott with, inter alia, First

Degree Assault as a Class A Felony because McGowan was seriously injured. On appeal, the

Southern District stated that "[i]t could be inferred from Scott's conduct that he intended to cause

harm to someone with Evans," and therefore the Class A Felony could stand.

           Scott relied on State v. Arellano, 736 S.W.2d 432 (Mo. App. W.D. 1987), which

similarly allowed for the Class A Felony First Degree Assault, stating "[t]he defendant's intent

toward the target is transferred to the bystander for the purpose of fixing the grade of the

offense." Arellano in turn relied on two murder cases, wherein transferred intent has long been


3
    The severity of Streeter's injury is not disputed.
4
    The punishment for the Class A felony is 10-30 years, and for the Class B felony the punishment is 5-15 years.

                                                           5
allowed, because "the intention follows the bullet". See State v. Mannon, 663 S.W.2d 780, 782

(Mo. App. S.D. 1983); State v. Eiland, 534 S.W.2d 814, 817 (Mo. App. St. Louis Dist. 1976).

The Missouri Legislature has codified transferred intent for murder cases as RSMo 565.003,

which reads:

         The culpable mental state necessary for a homicide offense may be found to exist if the
         only difference between what actually occurred and what was the object of the offender's
         state of mind is that a different person or persons were killed.

Therefore, by utilizing the legal fiction of transferred intent, the defendant's in Arellano, Scott

and this case could all be charged with the Class A felony even though they missed their

intended target and hit an innocent bystander.

         Defendant correctly recognizes that Missouri has not codified transferred intent for non-

homicide cases, and further points to case law that purportedly supports his position. At best,

Defendant's arguments demonstrate a divided history on the complained about issue.

         In State v. Mulhall, 97 S.W. 583 (Mo. 1906), defendant shot at Reed, intending to kill

him, but instead hit Morgan. The State charged defendant with assault with intent to kill

Morgan, arguing that defendant's intent to kill Reed should transfer to Morgan; the jury

instructions so provided.5 The jury found defendant guilty, but the Missouri Supreme Court

ultimately reversed, stating in relevant part:

         It is clear that under that provision of the statute, there are two essential elements
         necessary to constitute such offense. First, that the defendant shot at [Morgan], and
         second that he did so with intent to kill him, and before a conviction can be had upon this
         charge, it is incumbent upon the state to establish by the proof both elements of such
         offense. It is not enough that the defendant shot at [Morgan], but as well that at the time

5
  Mulhall was charged under section 1847, Rev. St. 1899, which reads in relevant part "Every person who shall, on
purpose and of malice aforethought, shoot at or stab another, or assault or beat another with a deadly weapon, or by
any other means or force likely to produce death or great bodily harm, with intent to kill, maim, ravish, or rob such
person . . . shall be punished by imprisonment in the penitentiary not exceeding ten years.”
The trial court gave the following instruction to the jury: "if a man with intent to kill one person willfully,
unlawfully, and on purpose, and of his malice aforethought shoots to accomplish such intent, but, as a matter of fact,
the bullet flies towards and strikes and wounds another whom he did not intend to injure, he is guilty of the same
offense as though the bullet had struck and wounded the one whom he intended to kill."

                                                          6
       of such shooting he intended to kill him. The fact that [Morgan] was seriously wounded,
       and such wound may have been occasioned by a shot from the pistol of the defendant,
       yet, the fact that he was so wounded must not be confounded with the essential elements
       to constitute the offense with which he is charged . . . [unless defendant] shot at [Morgan]
       with the intent to kill him, then there can be no conviction for an assault with intent to
       kill.

Id. at 586-587. See also State v. Williamson (Mo. 1907) (Defendant shot at an intended target,

but instead hit a ten-year-old newsboy standing in the background, conviction reversed where

defendant was charged with assault with intent to kill the newsboy); Cf. State v. Montgomery, 3

S.W. 379 (Mo. 1887) ("The evidence was properly admitted, for it is well settled that if, with a

felonious intent, A shoots at B to kill him, and misses B, and wounds C, that the law transfers the

felonious intent with which the ball started, from B to C.").

       In fact, Defendant presents no modern cases that support his arguments. England v.

State, 85 S.W.3d 103 (Mo. App. W.D. 2002) is inapposite, as that case turned on whether the

defendant could be charged with first degree assault as a class B felony, or instead should have

been charged with a lesser degree. See also State v. Kester, 201 S.W. 62 (Mo. 1918) (Where

defendant shot into a home, the bullet struck wife, but no evidence was presented that defendant

intended to shoot wife, assault with intent to kill conviction was reversed. "At worst the act was

characterized by a spirit of ruffianism and indifference to results which richly merit punishment

under the proper proceeding, [which is the culpable negligence assault statute].").

       At Defendant's PCR hearing, the motion court relied on Scott for purposes of fixing the

grade of the offense. Defendant has not met his burden demonstrating that the motion court's

findings and conclusions are clearly erroneous such that we are left with the definite and firm

impression that a mistake has been made. Point I is denied.




                                                 7
Point II – Plea Counsel Not Ineffective for Advising Defendant to Take Class A Plea.

       Defendant contends that Plea Counsel was ineffective in brokering and recommending

the plea deal containing the class A felony, and but for Plea Counsel's acts, the results of his

proceedings would have been different.

                                        Standard of Review

       To be entitled to an evidentiary hearing on a post-conviction relief claim, a movant must:

(1) allege facts, not conclusions, which, if true, would warrant relief; (2) the facts alleged must

raise matters not refuted by the record and files in the case; and (3) the matters complained of

must have resulted in prejudice to the movant. Roberts, 276 S.W.3d at 835. An evidentiary

hearing is not required if the case files and record conclusively show the movant is not entitled to

relief. See Rule 29.15(h).

       Since Defendant seeks an evidentiary hearing concerning Plea Counsel's alleged

ineffective assistance, he must demonstrate that "counsel's conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having produced a just

result." Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to meet this standard,

Defendant must show that (1) counsel failed to conform his representation to the degree of skill,

care, and diligence of a reasonably competent attorney under similar circumstances and (2) he

was prejudiced as a result. Id.; Sanders v. State, 738 S.W.2d 856, 857–58 (Mo. banc 1987).

       Defendant must establish the first prong of Strickland by a preponderance of the

evidence. See Rule 29.15(i). However, the burden is a heavy one, in that "the movant must

overcome a strong presumption that counsel provided competent assistance." Deck v. State, 68

S.W.3d 418, 425-426 (Mo. banc 2002). Counsel's representation must have fallen below "an

objective standard of reasonableness." Strickland, 466 U.S. at 688. Defendant must therefore



                                                  8
"identify specific acts or omissions of counsel that resulted from unreasonable professional

judgment, and the 'court must determine whether, in light of all the circumstances, the identified

acts or omissions were outside the wide range of professional competent assistance.'" Deck, 68

S.W.3d at 426 (quoting Strickland 466 U.S. at 690).

       We have already decided in Point I that no clear error as a matter of law exists regarding

the issuance of the class A felony; it follows that Plea Counsel is not ineffective for

recommending Defendant take the plea. See, e.g., Johnson v. State, 140 S.W.3d 161 (Mo. App.

S.D. 2004) (Where counsel was correct in stating that possession of methamphetamine residue

was sufficient to support a conviction, defense counsel was not ineffective in advising defendant

to plead guilty to possession, as "[i]t is axiomatic that a guilty-plea counsel cannot be considered

ineffective when he or she gives correct advice to an accused.").

       Further, Defendant testified that he had enough time to discuss the case with Plea

Counsel, and that Plea Counsel answered all of Defendant's questions and did everything

Defendant asked. We therefore find Defendant's claim for ineffective assistance wholly refuted

by the record. Point II is denied.

                                          CONCLUSION

       The judgment of the trial court is affirmed.


                                                      ___________________________________
                                                      Lisa P. Page, Judge


Robert M. Clayton III, P.J., and Mary K. Hoff, J. CONCUR.




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