                                                  In the
                             Missouri Court of Appeals
                                        Western District
 DERIC L. COON,                                        )
                                                       )
                    Appellant,                         )   WD79325
                                                       )
 v.                                                    )   OPINION FILED:
                                                       )   November 29, 2016
 STATE OF MISSOURI,                                    )
                                                       )
                   Respondent.                         )

               Appeal from the Circuit Court of Lafayette County, Missouri
                          The Honorable Dennis A. Rolf, Judge

  Before Division One: Thomas H. Newton, Presiding Judge, Cynthia L. Martin, Judge
                          and Edward R. Ardini, Jr., Judge


        Appellant Deric L. Coon ("Coon") appeals the motion court's denial of his Rule

24.0351 motion for post-conviction relief which alleged ineffective assistance of counsel

in failing to file a motion to suppress Coon's confession and in failing to advise Coon that

his sentences would be imposed to run consecutively. Finding no error, we affirm.




        1
        Rule 24.035 of the Missouri Supreme Court Rules. All statutory references are to RSMo 2000 as
supplemented unless otherwise indicated.
                                      Facts and Procedural History

       On November 16, 2013, Coon was arrested in connection with the burglary of a

storage unit in Odessa, Missouri. After identifying Coon and a friend as suspects, Odessa

Police located the two at a local hotel. Coon was questioned and taken into custody after

making potentially incriminating statements. At the time of his arrest, Coon was in

possession of methamphetamines. Coon was eight months into a five-year term of

probation, with a suspended imposition of sentence, following a guilty plea he entered on

March 8, 2013, for attempted second degree burglary.

       When Coon and the officers arrived at the station, Coon signed a Miranda2 form,

and then described the events and his role in the theft from the storage unit. Coon also

confessed to possession of methamphetamines. An officer prepared a written account of

Coon's statement, and Coon signed the statement. Coon does not contest the accuracy of

his written statement. Additionally, four other people gave statements implicating Coon.

       Pursuant to negotiations with the State, Coon pled guilty on March 3, 2014, to a

Class C felony for possession of a controlled substance and a Class C felony for stealing,

in exchange for the State's agreement to drop two related charges. The court sentenced

Coon to seven years on both counts, to be served concurrently. The court also revoked

Coon's suspended imposition of sentence in connection with Coon's March 2013

conviction, given Coon's violation of the terms of his probation, and sentenced him to seven



       2
           Miranda v. Ariz., 384 U.S. 436 (1966).

                                                    2
years in the department of corrections to be served consecutively to the concurrent seven-

year sentences. Execution of all of Coon's sentences was suspended, and Coon was again

placed on probation for five years. On August 6, 2014, Coon's probation was revoked after

Coon tested positive for marijuana, and Coon's suspended sentences were executed. Coon

was committed to the jurisdiction of the Department of Corrections immediately thereafter.

         Coon filed a pro se Rule 24.035 motion for post-conviction relief on November 10,

2014. Appointed counsel filed an amended Motion to Vacate, Set Aside, or Correct the

Judgment or Sentence on April 22, 2015 ("Amended Motion"). The motion court denied

Coon's Amended Motion without an evidentiary hearing3 and issued its findings of fact,

conclusions of law and judgment.4

         Coon filed this timely appeal.

                                             Standard of Review

         "Appellate review of the trial court's action on [a] motion filed under [] Rule 24.035

shall be limited to a determination of whether the findings and conclusions of the trial court

are clearly erroneous." Rule 24.035(k); Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc

2009); Ross v. State, 335 S.W.3d 479, 480 (Mo. banc 2011); Bello v. State, 464 S.W.3d

284, 288-89 (Mo. App. W.D. 2015). The determination of the motion court is clearly

erroneous only if "the appellate court is left with the definite and firm impression that a



         3
           Coon does not claim error in being denied an evidentiary hearing.
         4
           Coon fails to include an appendix with his brief containing the motion court's judgment from which this
appeal is taken in violation of Rule 84.04(h). Since this Court does not prefer to settle an appeal without reaching its
merits, and the briefing in this case "is at least minimally compliant with the rules," we proceed to decide this appeal
on its merits despite the violation. Rainey v. SSPS, Inc., 259 S.W.3d 603, 605 (Mo. App. W.D. 2008).


                                                           3
mistake has been made." Roberts, 276 S.W.3d at 835. The burden of showing that the

motion court clearly erred is on the movant. Id.

                                          Analysis

          Though Coon's Amended Motion raised several claims, Coon's appeal addresses the

denial of only two of those claims. Coon argues that the motion court erred in denying his

Amended Motion because plea counsel was ineffective by failing to file a motion to

suppress his confession, as Coon now claims that his confession was not knowing and

voluntary because he was high on methamphetamines and had gone without sleep for three

to four days at the time he waived his Miranda rights and gave his statement to the police.

Coon also argues that it was error to deny his Amended Motion because plea counsel was

ineffective by failing to advise him, before he pled guilty, that the seven-year suspended

sentence for his earlier probation violation would be ordered to run consecutively to the

concurrent seven-year sentences imposed for the charges arising out of his November 2013

arrest.

          To prevail on an ineffective assistance of counsel claim, Coon must "show[] by a

preponderance of the evidence that (1) his counsel failed to exercise the customary skill

and diligence of a reasonably competent attorney under similar circumstances and (2) his

counsel's deficient performance prejudiced him." Smith v. State, 370 S.W.3d 883, 885-86

(Mo. banc 2012); see Strickland v. Washington, 466 U.S. 668, 687-88 (1984)). Coon must

prove both prongs of this test, and if he fails to prove one prong, the appellate court need

not consider the other. Bello, 464 S.W.3d at 289. Furthermore, by entering a plea of guilty,

Coon expressly waived the right to contest all other errors "except to the extent that [plea

                                              4
counsel's] conduct affected the voluntariness and knowledge with which the plea was

made." Worthington v. State, 166 S.W.3d 566, 573 (Mo. banc 2005) (emphasis added);

State v. Roll, 942 S.W.2d 370, 375 (Mo. banc 1997).

         For the following reasons, we hold that the motion court did not clearly err in

denying Coon's Amended Motion.

Plea Counsel's Failure to File a Motion to Suppress Coon's Confession

         In his first point on appeal, Coon argues that plea counsel was ineffective in failing

to file a motion to suppress his confession. Specifically, Coon argues that because he was

under the influence of methamphetamines and alcohol at the time of his confession, he did

not knowingly and voluntarily waive his Miranda rights or make a confession.

         Coon's first point on appeal is facially without merit. Coon’s point on appeal alleges

only that plea counsel failed to file a motion to suppress. Coon’s point on appeal does not

allege that plea counsel failed to advise him of the possibility that his confession could

have been suppressed, thus affecting the knowing and voluntary nature of his guilty plea.5

See Lynn v. State, 417 S.W.3d 789, 803-04 (Mo. App. E.D. 2013) (explaining that the mere

existence of potentially suppressible evidence does not "vacate a guilty plea that was

voluntarily and knowingly made."). Coon's Amended Motion does not explain how trial



         5
           At the end of the argument portion of Coon's Brief addressing point one, Coon loosely alleges that had he
known a motion to suppress could have been filed, he would not have pled guilty. Coon’s general assertion that he
was not advised of the ability to file a motion to suppress materially varies from the error asserted in his point relied
on and preserves nothing for our review. Rule 84.04(e) (stating that "[t]he argument shall be limited to those errors
included in the 'Points Relied On.'"); Cordes v. Williams, 201 S.W.3d 122, 129 (Mo. App. W.D. 2006) ("Issues not
encompassed by the point relied on and raised only in the argument portion of the brief are not preserved for
review."); Howell v. State, 357 S.W.3d 236, 248 (Mo. App. W.D. 2012) ("It is well settled that errors raised for the
first time in the argument portion of a brief, and that are not raised in the point relied on, need not be considered by
this court.").

                                                            5
counsel's failure to file a motion to suppress influenced the knowing and voluntary nature

of his guilty plea. See Rule 24.035(e) (requiring a post-conviction movant to allege all

facts necessary to show an entitlement to relief). In fact, the plea record indicates that Coon

pled guilty aware that by doing so, he was waiving any right to challenge the legality of his

arrest or the admissibility of evidence at trial.6 As a result, Coon has not demonstrated that

trial counsel's failure to file a motion to suppress had any bearing on the knowing and

voluntary nature of Coon's plea. Coon cannot satisfy the first prong of the Strickland

analysis. Lynn, 417 S.W.3d at 803-04 (holding that when the defendant voluntarily and

knowingly pleaded guilty, he waived any claim that counsel was ineffective for failing to

file a motion to suppress the defendant’s inculpatory statements).

         Even if Coon could overcome this insurmountable hurdle, he would remain unable

to establish that plea counsel's performance was ineffective. As the motion court noted,

"[t]rial counsel will not be deemed ineffective for failing to file a meritless motion to

suppress. State v. Hunter, 840 SW 2d 850, 870 (Mo. banc 1992)." Filing a motion to

suppress under the circumstances alleged by Coon would have been meritless because

voluntary intoxication will not support the suppression of a confession.

                  It is generally agreed among authorities that drug influence or
                  intoxication at the time of making a statement or confession does not
                  require exclusion because not voluntarily, knowingly and intelligently
                  made unless the intoxication or drug influence amounts to mania. The
                  fact of drug influence and intoxication, absent mania, only goes to the
                  credibility and weight of the statement.


         6
          The transcript for the Plea Sentencing Proceeding shows that the court warned Coon of the consequences
of entering a guilty plea, and asked Coon to state whether he understood that by entering a guilty plea, he was
waiving his right to contest the legality of his arrest and the admissibility of any evidence in the case. Coon indicated
that he understood.

                                                           6
State v. Hindman, 543 S.W.2d 278, 285 (Mo. App. S.D. 1976). See also State v. Mitchell,

2 S.W.3d 123, 127-28 (Mo. App. S.D. 1999) (mere intoxication, absent evidence of

"mania" is not enough to render a statement unintelligent and involuntary).

         Pursuant to Rule 24.035(e), Coon was required to allege all facts necessary to show

an entitlement to post-conviction relief.7 Both the pro se and the Amended Motion are

void of any factual allegations necessary to suggest that a motion to suppress was likely to

be successful. Though the Amended Motion generally alleges that Coon's Miranda waiver

and subsequent confession were not made knowingly and voluntarily because he was

intoxicated, Coon does not allege that he was involuntarily intoxicated at the time of his

confession, and does not allege that his behavior at the time of his confession rose to the

level of mania.8 At best, Coon's Amended Motion alleges a fact (Coon's intoxication) that

would have affected the credibility and reliability of his confession, not its admissibility.

The motion court did not clearly err in concluding that Coon's claim of ineffective

assistance of counsel based on the failure to file a motion to suppress was without merit.

         Because counsel was not ineffective for failing to file a meritless motion, and

regardless, any argument to that effect is waived because it did not affect Coon's ability to

voluntarily and knowingly enter a guilty plea, Coon has not sustained his burden to

establish deficient performance of counsel, and we need not address the prejudice prong.



         7
            After appointed, "[c]ounsel shall ascertain whether sufficient facts supporting the claims are asserted in the
motion … If the motion does not assert sufficient facts or include all claims known to the movant, counsel shall file
an amended motion that sufficiently alleges the additional facts and claims." Rule 24.035(e). Additionally, in the
event counsel decides not to file an amended motion, counsel still must file a statement that demonstrates all actions
taken to ensure that all facts supporting the defendants claims are asserted in the pro se motion. Id.
          8
            In fact, at one point in his brief, Coon admits that "Mr. Coon may not have demonstrated 'mania,'" but
insists that the circumstances rendered the confession involuntary. [Appellant’s Brief, p. 10]

                                                            7
       Point one on appeal is denied.

Plea Counsel's Failure to Advise of Consecutive Sentences

       In his second point on appeal, Coon argues that plea counsel ineffectively failed to

advise him, before he pled guilty, that if his probation was revoked, he would serve two

seven-year sentences concurrently, but consecutive to a seven-year sentence for his

previous conviction, a total of fourteen years in prison.

       Coon's claim is plainly refuted by the record. The following exchange occurred

during the guilty plea sentencing proceeding:

       Court:        What is the State's recommendation?

       State:        Your Honor, the State is asking the Court to revoke the [earlier]
                     probation, sentence the Defendant to seven years. We're asking
                     the Court in the new case, 871, to sentence the Defendant to
                     seven years on each of the counts he has pled guilty to, to run
                     concurrently but consecutively to the probation sentence for a
                     total of 14 years. Suspend execution of sentence and place the
                     Defendant on a five-year probation with Missouri Probation
                     and Parole with all of the standard conditions of probation as
                     well as the special conditions.…

       ….

       Court:        You've heard the recommendation made by the State?

       Coon:         Yeah.

       Court:        Is that your understanding of what the recommendation was
                     going to be?

       Coon:         Yes.

       Court:        Any changes or surprises?

       Coon:         Nope.


                                              8
      Court:          Any other promises made to you concerning this matter?

      Coon:           No.

      Court:          After what you have heard today, do you still wish to plead
                      guilty and want me to accept your plea of guilty and follow the
                      Prosecutor's recommendation?

      Coon:           Yes.

Contrary to Coon's current claim, this exchange clearly indicates that Coon was both

advised of, and understood, that the seven-year sentence imposed for his earlier conviction

would be ordered to run consecutively with the seven-year sentences imposed for his most

recent convictions.

      Additionally, later in the guilty plea sentencing hearing, the Court warned Coon

exactly what was at stake if he violated the terms of his probation, and Coon indicated his

understanding of the Court's warning.

      Court:          […] it is the order, sentence and judgment of this Court that the
                      Defendant be sentenced to seven years in the Department of
                      Corrections on the probation revocation case, seven years in
                      the Department of Corrections on the stealing and possession
                      of a controlled substance charges. The possession and stealing
                      charges to run concurrent with each other but consecutive to
                      the probation revocation case, which means in this case, sir,
                      seven plus seven plus seven actually equals 14, not 21, but not
                      seven either, because the new case is consecutive to the old
                      case. You've got a lot of risk. Do you understand that? You get
                      in trouble again, you are going to be gone for a long time.
                      Understand?

      Coon: Yes.




                                              9
Coon indicated his understanding of the nature of his sentences not once, but twice, during

his guilty plea sentencing proceeding. The record refutes Coon's current claim that he was

not aware that one of his sentences would run consecutive to the others.

      The motion court did not clearly err in finding that Coon's claim of ineffective

assistance of counsel was refuted by the record.

      Point two on appeal is denied.

                                          Conclusion

      We affirm the motion court's judgment denying Coon's Rule 24.035 post-conviction

motion.




                                          __________________________________
                                          Cynthia L. Martin, Judge


All concur




                                            10
