             IN THE MISSOURI COURT OF APPEALS
                     WESTERN DISTRICT

 GABRIEL KNIGHT DAWSON,                            )
                                                   )
                                     Appellant,    )
                                                        WD82441
 v.                                                )
                                                   )
                                                        OPINION FILED:
                                                   )
                                                        July 14, 2020
 STATE OF MISSOURI,                                )
                                                   )
                                   Respondent.     )


                Appeal from the Circuit Court of Buchanan County, Missouri
                          The Honorable Patrick K. Robb, Judge

                  Before Division Two: Mark D. Pfeiffer, Presiding Judge, and
                         Alok Ahuja and Edward R. Ardini, Jr., Judges

       This post-conviction relief appeal involves a claim of ineffective assistance of counsel and

a claim that the sentencing court imposed a sentence without consideration of mandatory juvenile

sentencing guidelines. It also involves a procedural scenario in which the sentencing court and the

post-conviction relief motion court are one and the same. Though this procedural circumstance is

not dispositive of the appeal, where the motion court details an objectively reasonable basis why

the sentencing court would not have been persuaded to sentence the defendant any differently after

being apprised of new evidence and legal arguments at the Rule 24.035 hearing, the motion court’s

finding that there is no prejudice is not clearly erroneous.
         Specifically, Mr. Gabriel Knight Dawson (“Dawson”) appeals from the judgment of the

Circuit Court of Buchanan County, Missouri (“motion court”), denying his Rule 24.0351 motion

for post-conviction relief after an evidentiary hearing. On appeal, Dawson contends that the

motion court clearly erred in denying his claim that the sentencing court “improperly sentenced”

him without considering a sentence under the dual-jurisdiction statute, § 211.073,2 and in denying

his claims that plea counsel was ineffective for failing to present mitigation evidence at his

sentencing hearing. We affirm.

                                      Factual and Procedural History3

         Dawson was born on September 21, 1999. On November 16, 2015, due to numerous acts

of juvenile delinquency, Dawson was placed within the jurisdiction of the Circuit Court of

Buchanan County, Juvenile Division (“juvenile court”), and was placed on probation (which he

violated on numerous occasions) and supervision of the juvenile court. After Dawson participated

in a crime that led to the death of his criminal accomplice, on June 1, 2016, the Juvenile Office

filed a motion for certification seeking to certify Dawson to be prosecuted in a court of general

jurisdiction for the commission of murder in the second degree, which would be a felony if

committed by an adult. After a hearing, on July 13, 2016, the juvenile court entered an order that

Dawson be transferred to a court of general jurisdiction for the purpose of such prosecution and

that he be released from the jurisdiction of the juvenile court. On the same day, Dawson was

charged in the Circuit Court of Buchanan County with the class B felony of attempted robbery in

the first degree in that on May 17, 2016, he attempted to carry out a robbery of another’s property

by threatening the use of a deadly weapon.


         1
            All rule references are to I MISSOURI COURT RULES – STATE 2019.
         2
            All statutory references are to the REVISED STATUTES OF MISSOURI 2016.
          3
            “On appeal of the denial of a Rule 24.035 motion, we view the facts in the light most favorable to the motion
court’s judgment.” Bishop v. State, 566 S.W.3d 269, 270 n.3 (Mo. App. W.D. 2019).


                                                           2
          In exchange for the prosecutor’s agreement that he would not be charged with felony

murder, on October 6, 2016, Dawson filed a petition to enter a plea of guilty to the charge of felony

robbery, and the sentencing court held a hearing on Dawson’s petition. The sentencing court

questioned Dawson regarding the factual basis for his plea, which established that Dawson and an

accomplice engaged in a robbery that ultimately resulted in the death of his accomplice. After first

questioning Dawson and confirming that he understood the range of punishment included a

sentence of up to fifteen years with no probation, that neither plea counsel nor anyone else had

promised or assured him that he would receive probation or a particular sentence, and that nobody

had promised or assured him that he would be released on parole after serving a certain portion of

the sentence imposed, the sentencing court found that Dawson’s plea was made voluntarily and

knowingly and that he was guilty as charged of the class B felony of attempted robbery in the first

degree.

          Before pronouncing sentence, the sentencing court ordered a sentencing assessment report

(“SAR”). On December 12, 2016, the sentencing court held a sentencing hearing and sentenced

Dawson to fourteen years’ imprisonment in the Missouri Department of Corrections. After

imposing sentence, the sentencing court questioned Dawson and confirmed with him that he

understood that the sentence he received was within the sentencing range for the crime to which

he pleaded guilty, that he had not been made any promises by anyone about probation or parole,

and that he was satisfied with the legal representation that he had received from his plea counsel.

          Subsequently, Dawson timely filed a pro se Rule 24.035 motion, and appointed counsel

timely filed an amended motion. In Dawson’s amended motion, he alleged that: (1) the sentencing

court erred in sentencing him by failing to consider dual jurisdiction as a possible sentence as

required by section 211.073, in violation of his right to due process of law; (2) plea counsel




                                                 3
provided ineffective assistance by failing to investigate and present evidence of adolescent

development at Dawson’s sentencing hearing for mitigation purposes, and he was prejudiced

thereby because had such evidence been presented, there is a reasonable probability the plea court

would have sentenced him to a lesser term of incarceration or sentenced him pursuant to

section 211.073, in the custody of the Division of Youth Services (“DYS”); and (3) plea counsel

provided ineffective assistance by failing to investigate and present mitigation evidence from

Dawson’s family members and weightlifting coach at his sentencing hearing, and had plea counsel

called the witnesses to testify, there is a reasonable probability the plea court would have sentenced

him to a lesser sentence.

       The motion court held an evidentiary hearing on August 30, 2018. Dawson presented the

testimony of the senior program administrator with the DYS, who testified regarding the

dual-jurisdiction program. Plea counsel testified regarding her representation of Dawson. A

neuropsychologist, Dr. Sandi Isaacson, testified regarding adolescent brain-behavior relationships

and the results of her evaluation of Dawson while he was in custody when he was seventeen years

old. Dawson’s mother, grandmother, great-aunt, and weightlifting coach all testified as to

Dawson’s good character. Dawson testified on his own behalf by deposition.

       Following the evidentiary hearing, the motion court entered its findings of fact, conclusions

of law, and judgment denying the claims in Dawson’s amended Rule 24.035 post-conviction

motion.

       Dawson timely appealed.

                                       Standard of Review

       Our review of the motion court’s decision on a Rule 24.035 motion is limited to
       determining whether its findings of fact and conclusions of law are clearly
       erroneous. The motion court’s findings and conclusions are clearly erroneous only




                                                  4
       if a review of the entire record by the appellate court results in a definite and firm
       impression that a mistake has been made.

Pettis v. State, 212 S.W.3d 189, 192-93 (Mo. App. W.D. 2007) (internal citations and quotations

omitted).

                                             Analysis

                                              Point I

       In Dawson’s first point, he asserts that the motion court clearly erred in denying his claim

that the sentencing court committed reversible error when it “improperly sentenced [Dawson]

without considering a sentence under the dual-jurisdiction statute, Section 211.073” and such

sentencing error prejudiced Dawson since a “reasonable judge” would have sentenced Dawson to

a dual-jurisdiction sentence had it been considered by such “reasonable judge.”

       The State argues that Dawson’s claim is not cognizable in a Rule 24.035 motion. We

disagree. In effect, Dawson’s claim in this point on appeal is that the sentencing court failed to

sentence him according to the law as mandated by section 211.073 and, hence, illegally sentenced

him. “[A] claim that a defendant was illegally sentenced following a guilty plea ‘may be

considered only in response to a Rule 24.035 motion.’” Gray v. State, 498 S.W.3d 522, 528-29

(Mo. App. W.D. 2016) (quoting State v. Onate, 398 S.W.3d 102, 106 (Mo. App. W.D. 2013)).

Simply put, post-conviction relief motions have long been recognized by Missouri courts as an

appropriate procedural vehicle to seek relief for a sentencing court’s misapprehension or

misapplication of the law in sentencing the defendant. See Wraggs v. State, 549 S.W.2d 881 (Mo

banc 1977); Williams v. State, 800 S.W.2d 739 (Mo. banc 1990); Pettis, 212 S.W.3d 189.

       That said, no Missouri court has presumed prejudice in such a post-conviction claim of

sentencing error. See Pettis, 212 S.W.3d at 194-95 (“The prejudice is obvious” . . . where the

sentencing court expressly misconstrued the effect of sentencing the defendant to a consecutive



                                                 5
term after expressing its interest in showing leniency to the defendant); Williams, 800 S.W.2d at

740-41 (prejudice found where the sentencing court misconstrued the applicable sentencing statute

to impose a lengthier sentence than required by law where sentencing court expressly noted that it

believed it had shown leniency and imposed the minimum sentence required by law); Wraggs, 549

S.W.2d at 883 (sentencing court improperly enhanced sentence with previous convictions of

defendant that were not entitled to be used to enhance the defendant’s sentence).

        “Post-conviction proceedings are not criminal proceedings, but are considered civil in

nature.” Wartenbe v. State, 583 S.W.3d 115, 120 (Mo. App. E.D. 2019) (citing Pennsylvania v.

Finley, 481 U.S. 551, 556-57, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987)). “[P]ost-conviction

proceedings pursuant to Rules 24.035 and 29.15 are civil proceedings . . . [and] are ‘governed by

the rules of civil procedure insofar as applicable.’” Watson v. State, 545 S.W.3d 909, 911 (Mo.

App. W.D. 2018) (quoting Rule 24.035(a); Rule 29.15(a)). Hence, “‘[e]ven assuming the circuit

court erred . . . an error does not warrant reversal on appeal unless the error results in prejudice.’”

Cygnus SBL Loans, LLC v. Hejna, 584 S.W.3d 324, 332 (Mo. App. W.D. 2019) (quoting Barron

v. Abbott Labs., Inc., 529 S.W.3d 795, 798 (Mo. banc 2017)).

        As relevant to Dawson’s sentence imposed by the sentencing court, section 211.073.1

provides, in part, that:

        [t]he court shall, in a case when the offender is under seventeen years and six
        months of age and has been transferred to a court of general jurisdiction pursuant
        to section 211.071, and whose prosecution results in a conviction or a plea of guilty,
        consider dual jurisdiction of both the criminal and juvenile codes, as set forth
        in this section.

(Emphasis added.) As this court has explained:

        Section 211.073 gives a court the authority to “invoke dual jurisdiction of both the
        criminal and juvenile codes,” § 211.073.1, in cases involving an offender under
        seventeen [and six months of age] who is transferred to a circuit court of general
        jurisdiction and whose prosecution results in a conviction. Under section 211.073,



                                                  6
         the circuit court may impose a juvenile disposition and “simultaneously impose an
         adult criminal sentence, the execution of which shall be suspended pursuant to the
         provisions of this section.” Id.

State v. Elliott, 502 S.W.3d 59, 64 (Mo. App. W.D. 2016) (quoting State ex rel. Sanders v. Kramer,

160 S.W.3d 822, 824 (Mo. App. W.D. 2005)). “The decision regarding whether to place an

offender under the dual jurisdiction program is a matter for the court’s discretion.” Id. at 64-65

(Mo. App. W.D. 2016) (citing Burnett v. State, 311 S.W.3d 810, 816 (Mo. App. E.D. 2009)).4

         Here, plea counsel testified that she spoke with Dawson about “dual jurisdiction” with DYS

and Dawson “was very adamant about wanting probation. He did not want to go to DYS.” So, a

conscious decision was made by Dawson and his plea counsel not to seek dual-jurisdiction

consideration by the sentencing court under the juvenile code and, instead, to seek probation under

the general criminal code. Hence, at the sentencing hearing, section 211.073 was not mentioned.

But, when the sentence imposed was not what Dawson wanted, Dawson then argued via his

Rule 24.035 motion that his due process rights were violated by the sentencing court’s failure to

consider dual jurisdiction.5

         Dawson, however, ignores that the motion court and sentencing court are one and the same

and that “[s]pecial deference is given when the PCR judge and the [sentencing] judge are the

same.” Goodwater v. State, 560 S.W.3d 44, 55 (Mo. App. W.D. 2018). Further, “[a] motion



          4
            In 2013, the legislature amended section 211.073, changing “[t]he court may, in a case when the offender
is under seventeen years of age and has been transferred to a court of general jurisdiction pursuant to section 211.071,
and whose prosecution results in a conviction or a plea of guilty, invoke dual jurisdiction of both the criminal and
juvenile codes,” to “[t]he court shall, in a case when the offender is under seventeen years and six months of age and
has been transferred to a court of general jurisdiction pursuant to section 211.071, and whose prosecution results in a
conviction or a plea of guilty, consider dual jurisdiction of both the criminal and juvenile codes.” § 211.073.1
(emphasis added). Under either version of the statute, whether to place an offender in the dual-jurisdiction program
is within the court’s discretion.
          5
            In circumstances where, as here, the defendant is not claiming that his guilty plea was not knowingly,
voluntarily, and intelligently entered into and where the defendant was aware of a relevant sentencing statute but
consciously chose not to bring that statute to the sentencing court’s attention until after sentencing, at least one court
has concluded that the issue is deemed waived as it relates to the defendant’s Rule 24.035 motion. Borneman v. State,
573 S.W.3d 83, 88 (Mo. App. S.D. 2019).


                                                            7
court’s findings are presumptively correct. In this case, they carry special weight since the motion

court also was the [sentencing] court. . . .” Joos v. State, 277 S.W.3d 802, 804 (Mo. App. S.D.

2009) (internal citation omitted). And, though the motion court judge candidly admitted in the

Rule 24.035 proceedings that the sentencing court judge “did not consider Dawson for imposition

of dual jurisdiction” as mandated by section 211.073, the motion court identified a litany of reasons

why this same judge would not have imposed a different sentence had he considered

section 211.073 at sentencing—a sentence that the motion and sentencing judge indicated was the

most lenient the judge was willing to consider under the circumstances, which were:

          Dawson’s history with the juvenile court was poor and Dawson had violated numerous
           juvenile court probation orders before engaging in the current felony crime that led to
           a fatality.

          The motion court, having heard the testimony of Dr. Isaacson at the Rule 24.035
           evidentiary hearing about development of the adolescent brain, noted that he had
           already considered such topics—as the sentencing judge—since he knew Dawson was
           a young offender when he sentenced him.

          The motion court, as the sentencing court, had already considered a “good character”
           testimonial by a relative in the SAR before imposing sentence.

          Dawson’s crime in question had caused a fatality and he could have been charged with
           felony murder, which carried a stiffer sentencing range.

          Dawson knew his accomplice had a gun and it would be used to rob the victim.

          Dawson ran from the scene after shots were fired but, after he knew his accomplice had
           been shot, he returned to the scene to collect the stolen marijuana.

          The sentencing court heard and considered an emotional victim impact statement from
           the mother of the deceased accomplice.

          Dawson showed little remorse at sentencing and simply stated that “all I want to do is
           turn my life around” and “I need another chance.”

          Though there was evidence that, at sentencing, Dawson would have been eligible for
           placement with DYS, there is no evidence that DYS had room for his placement at that
           time nor would otherwise have accepted Dawson for placement at that time.



                                                 8
          The motion court judge, also the sentencing court judge, noted that while he was
           required to consider dual jurisdiction, “there is no requirement that a sentencing court
           impose a dual jurisdiction sentence” and, ultimately, under Dawson’s circumstances,
           the judge concluded that there simply was no prejudice to Dawson, from which we
           infer that the judge concluded he would not have exercised his discretion to sentence
           Dawson to a dual-jurisdiction sentence.

       In Burnett v. State, 311 S.W.3d 810 (Mo. App. E.D. 2009), the plea court considered dual

jurisdiction and “declined to follow DYS’s recommendation of dual-jurisdiction placement.” Id.

at 816. The Burnett court noted that “[t]he decision of whether to place an offender in the

dual-jurisdiction program is a matter within the plea court’s discretion.” Id. (citing § 211.073.1).

Additionally, the Burnett court observed that in denying the movant’s Rule 24.035 motion, “the

motion court found that the plea court’s decision was a ‘considered rejection’ of the DYS

recommendation.” Id. The Burnett court found that “the motion court did not clearly err in

concluding that Movant’s crimes ‘reflect[ed] extremely violent conduct,’ and therefore

‘support[ed] the trial court’s decision to sentence for a longer term as an extremely dangerous

criminal.’” Id.

       Similarly, here, having been given the opportunity to “consider” the dual-jurisdiction

sentencing statute, albeit during the Rule 24.035 proceedings, the motion court simply concluded

that—wearing the hat of the sentencing court—it would not have sentenced Dawson differently.

By having the same judge serving as both the sentencing court and the motion court, the record

presents an objectively reasonable and “considered rejection” of dual jurisdiction by that same

judge. While the concurring opinion is correct to note that a mere subjective foreclosure of

consideration of prejudice by the motion court (who was also the sentencing court) is legally

insufficient analysis by the motion court, Strickland v. Washington, 466 U.S. 668, 695 (1984), the

motion court below did, in fact, provide an objective basis for his Rule 24.035 ruling and it is this




                                                 9
objective analysis by a motion court who also served as the sentencing court that our state’s

appellate courts have given special deference to as a practical matter.

       There were objectively reasonable grounds for the motion court to conclude that, acting as

the sentencing court, it would not have invoked dual jurisdiction and imposed a juvenile

disposition. The motion court did not clearly err in its prejudice analysis and, absent prejudice,

Dawson’s point on appeal fails.

       Point I is denied.

                                         Points II and III

       In Dawson’s second and third points on appeal, he asserts that the motion court erred in

denying his claim that plea counsel provided ineffective assistance during the sentencing

proceedings by failing to present mitigating evidence of adolescent development through the

testimony of Dr. Isaacson (Point II), and by failing to present mitigating character evidence

through the testimony of his mother, grandmother, great-aunt, and weightlifting coach (Point III).

Dawson does not contend that but for counsel’s failure to call these witnesses during the sentencing

hearing he would not have pleaded guilty. Instead, Dawson contends that because of plea

counsel’s failure to present this evidence at his sentencing hearing, he was prejudiced because “a

reasonable judge” would have considered the testimony and imposed a lower sentence or placed

Dawson in the dual-jurisdiction program. He does not seek to withdraw his guilty plea, but only

to have his sentence vacated and be resentenced.

       “A claim of ineffective assistance of counsel at sentencing following a guilty plea is a

‘cognizable’ claim under Rule 24.035.” Cherco v. State, 309 S.W.3d 819, 825 (Mo. App. W.D.

2010). “If a defendant aggrieved by ineffective assistance of counsel at sentencing is willing to

abide by the guilty plea or conviction, the defendant nonetheless may have recourse under a




                                                10
post-conviction motion if the defendant demonstrates that sentencing was influenced by ineffective

assistance of counsel during sentencing.” Id. at 830. “[T]he two-pronged test from Strickland

applies equally to claims of ineffective assistance of counsel arising out of a sentencing hearing.”

Id. at 825 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984)).

        To state a claim for post-conviction relief because of ineffective assistance of counsel, the

movant must show by a preponderance of the evidence that: (1) counsel’s performance was

deficient because she failed to exercise the customary skill and diligence that a reasonably

competent attorney would exercise in similar circumstances; and (2) counsel’s deficient

performance prejudiced the movant. Id. (citing Strickland, 466 U.S. at 687). In order to satisfy

the performance prong, Dawson must demonstrate that plea counsel’s failure to call character

witnesses at his sentencing hearing fell below an objective standard of reasonableness. Id. (citing

Strickland, 466 U.S. at 688). In order to establish the prejudice prong, Dawson “must demonstrate

that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.’” Jones v. State, 541 S.W.3d 694, 697 (Mo. App. W.D.

2018) (quoting Strickland, 466 U.S. at 694).

        “Applied to claims of ineffective assistance of counsel at sentencing, a movant must show

that but for sentencing counsel’s errors . . . the result of the sentencing would have been different,

specifically, that his sentence would have been lower.” Id. (internal quotation marks omitted). “A

movant claiming ineffective assistance must overcome a strong presumption that counsel provided

competent representation.” Id. (internal quotation marks omitted). “Because a movant must

establish both deficient performance by counsel and prejudice, if a movant fails to establish one

prong, a court need not address or consider the other.” Id. (citing O’Neal v. State, 766 S.W.2d 91,




                                                  11
92 (Mo. banc 1989)). “As a matter of strategy, the decision not to call a witness is ‘virtually

unchallengeable.’” Id. at 699 (quoting Cherco, 309 S.W.3d at 825).

       At the evidentiary hearing, Dawson presented evidence from Dr. Isaacson regarding

adolescent brain-behavior relationships; from Dawson’s mother, grandmother, great-aunt, and

weightlifting coach about his character; and from plea counsel about her representation.

       Dr. Isaacson testified that she conducted an evaluation of Dawson when he was seventeen

years old while he was in custody. The results of her testing showed that Dawson “was of at least

average intellectual ability, that he was able to express himself verbally and forthrightly and

present a narrative of his own background and trauma.” She determined that “his maturity was

fairly average for a 17-year-old, albeit with some indications of impulsivity, depression, anxiety,

and trauma which delayed his development of adequate coping ability and adequate ability to

manage stress and anxiety.”

       Plea counsel testified at the evidentiary hearing that she discussed with Dawson what to

present at the sentencing hearing. Plea counsel testified that she thought about calling a witness

to testify about Dawson being a juvenile, but both she and Dawson had concerns about that

strategy. According to plea counsel, Dawson “made it very clear to me that he wanted to take

responsibility. He didn’t want any excuses made.” Plea counsel testified that she investigated

hiring an expert in neuropsychology or psychology to evaluate Dawson, to investigate mitigating

factors regarding juvenile culpability that could have helped at sentencing. Plea counsel stated her

strategy behind not hiring an expert was that such testimony could potentially harm Dawson by

making it look “as if he were not trying to take responsibility or trying to make an excuse.”

       Plea counsel also testified that the two main character witnesses were Dawson’s mother

and his weightlifting coach. Plea counsel stated that Dawson told her he did not want his mother




                                                12
to testify at the sentencing hearing because he was afraid of what she might say. Plea counsel

testified that she talked with Dawson’s weightlifting coach several times about being present to

testify on Dawson’s behalf at the sentencing hearing, but the coach was out of town on the day of

the hearing and did not testify. Plea counsel also testified that she was planning to inform the

sentencing court that Dawson had obtained his GED.

        Dawson testified by deposition. He testified that the charge against him in his juvenile

case was second-degree felony murder; he pleaded guilty in the “adult case” to the charge of

attempted robbery in the first degree in exchange for the State agreeing not to file additional

charges. He knew the range of punishment for second-degree felony murder was ten to thirty

years, and the range of punishment for attempted robbery in the first degree was five to fifteen

years. Dawson testified that he always planned on pleading guilty, and that sentencing was his

biggest concern. He said that he told plea counsel he wanted her to call his weightlifting coach,

his mother, his grandmother, and his great-aunt as character witnesses. According to Dawson, at

sentencing, plea counsel told him either that “she didn’t think it was a good idea or necessary” to

call character witnesses. He said when the court asked him at sentencing if there was anything

plea counsel had not done that he wanted her to do, he said no because he was “in shock” when

the court imposed a prison sentence. Dawson testified that plea counsel had told him about the

dual-jurisdiction program, but he thought that “it was just a place where they held you until you

were twenty-one.” He testified that when he was in juvenile custody, he “attempted suicide a

couple of days after being charged with felony murder,” and he told plea counsel that he thought

it was important for an expert to testify about the traumatic events in his life “in order for the judge

to get a full understanding.” He stated that he had been diagnosed with post-traumatic stress




                                                  13
disorder, insomnia, and manic depressive disorder. Dawson testified that he was emotionally and

psychologically unstable when he was making decisions in his case.

         In denying Dawson’s claims, the motion court considered Dawson’s testimony at his plea

hearing that he was satisfied with plea counsel’s representation and that there was nothing more

that he wanted her to do before he entered a guilty plea. The motion court also considered

Dawson’s testimony at his sentencing hearing that he was satisfied with plea counsel’s

representation and that there was nothing more that he wanted her to do in his case.6 The motion

court stated that Dr. Isaacson’s testimony regarding the development of the adolescent brain “is

common knowledge of a judge who presides over juvenile court cases and offenses committed by

young offenders.” The court noted that Dawson’s SAR contained information about: Dawson’s

“mental health history, including his statement that he had been diagnosed with post-traumatic

stress disorder, manic depression and insomnia[,] and had been on medication”; the fact of

Dawson’s previous attempt to commit suicide; a statement from his great-aunt that he was “a good

kid, very intelligent and was hanging around the wrong people during the present offense”; and

the fact that Dawson had obtained his GED prior to sentencing. The motion court noted that

Dawson’s weightlifting coach’s opinion that he would have been willing to testify that Dawson

was a “good kid” and that the crime he committed was not consistent with his character was similar

to the information contained in Dawson’s SAR through the statement of his great-aunt. See

Scroggins v. State, 596 S.W.3d 163, 167-68 (Mo. App. W.D. 2020) (finding movant’s claim that

he was prejudiced by defense counsel’s failure to more specifically argue age as a mitigating factor



          6
            In Jones v. State, 541 S.W.3d 694 (Mo. App. W.D. 2018), Jones was specifically asked during his sentencing
hearing following his guilty plea whether there were specific witnesses that plea counsel should have talked to, or
specific evidence that plea counsel should have presented. Id. at 701. He answered in the negative. Id. at 700. We
found that “[t]hese questions were sufficiently specific to permit the motion court to rely on Jones’s response to refute
his Rule 24.035 claim that counsel failed to investigate and call witnesses whose testimony would allegedly have
impacted the length of his imposed sentence.” Id.


                                                          14
in sentencing was refuted by the record, which established that the sentencing court, which was

also the motion court, considered movant’s age, mental development, and educational and family

background as detailed in the SAR).

       The motion court concluded that Dawson could have called these witnesses at the

sentencing hearing; but after considering the evidence proffered at the PCR evidentiary hearing,

the motion court found “that had plea counsel presented this evidence at the sentencing hearing, it

would not have resulted in a lower sentence for [Dawson].” The motion court’s conclusion is

objectively reasonable. Likewise, where we have the benefit of having a motion court who also

served as the sentencing court, the motion court’s ruling as to the impact of character witnesses

has been categorized by other courts as being “virtually unchallengeable.” See Cherco, 309

S.W.3d at 831 (“[W]here, as here, the sentencing court and the motion court are one in the

same, . . . a motion court’s finding that character witnesses would not have ameliorated the

sentence [is] virtually unchallengeable under the clearly erroneous standard.”).

       The motion court’s finding is not clearly erroneous. Dawson has failed to establish the

Strickland prejudice prong, and “if a movant fails to establish one prong [of the Strickland test], a

court need not address or consider the other.” Jones, 541 S.W.3d at 697.

       Points II and III are denied.

                                            Conclusion

       The motion court’s judgment is affirmed.

                                              /s/Mark D. Pfeiffer
                                              Mark D. Pfeiffer, Presiding Judge

Edward R. Ardini, Jr., Judge, concurs.
Alok Ahuja, Judge, concurs in a separate opinion.




                                                 15
           IN THE MISSOURI COURT OF APPEALS
                   WESTERN DISTRICT
 GABRIEL KNIGHT DAWSON,        )
                    Appellant, )
                               )
 v.                            )              WD82441
                               )
 STATE OF MISSOURI,            )              FILED: July 14, 2020
                 Respondent. )

                              CONCURRING OPINION
      I concur in the result reached by the majority, and in its opinion – with one

caveat.

      The circuit court concluded that Dawson had failed to demonstrate that there

was a reasonable probability that he would have received a lesser sentence if his

counsel had presented mitigation witnesses, or if the sentencing court had

considered a “dual jurisdiction” disposition under § 211.073, RSMo. In affirming

this conclusion, the majority notes that the judge who denied Dawson’s post-

conviction relief motion was the same judge who sentenced Dawson in the first
place. The majority quotes prior decisions of this Court which hold that, because

the same judge imposed Dawson’s sentence and also ruled on his post-conviction

relief motion, the court’s factual findings concerning prejudice “carry special

weight,” Joos v. State, 277 S.W.3d 802, 804 (Mo. App. S.D. 2009), and its denial of

post-conviction relief is entitled to “[s]pecial deference,” Goodwater v. State, 560

S.W.3d 44, 55 (Mo. App. W.D. 2018), and is “virtually unchallengeable.” Cherco v.

State, 309 S.W.3d 819, 831 (Mo. App. W.D. 2010). See also Scroggins v. State, 596
S.W.3d 163, 168 (Mo. App. W.D. 2020) (holding that it is “nearly impossible” on
appeal to establish prejudice from counsel’s failure to present mitigating evidence,

where the sentencing and post-conviction judges are the same); McKee v. State, 540

S.W.3d 451, 458-59 (Mo. App. W.D. 2018).

      I recognize that decisions of this Court have repeatedly held that heightened

deference is given to the circuit court’s prejudice findings when the sentencing judge

and the post-conviction judge are the same. But on further review, it is clear to me

that those decisions fundamentally misconstrue the prejudice analysis mandated by

Strickland v. Washington, 466 U.S. 668 (1984). These cases rely on the notion that

the judge who actually imposed sentence on a post-conviction movant has special –

indeed, unique – insight whether additional evidence or argument could have

altered the sentence. These cases presume that Strickland’s prejudice analysis asks

whether more effective representation would have swayed the particular judge who

imposed sentence on a movant. But that is not the question the prejudice analysis is

intended to answer.

      Strickland itself makes this crystal clear. Strickland involved claims of

ineffective assistance of counsel at sentencing, including – like here – a claim that

counsel was ineffective for failing to present mitigating psychiatric testimony and

character witnesses during the sentencing proceeding. 466 U.S. at 675. The
Supreme Court stressed that the “prejudice prong” of the ineffective assistance of

counsel inquiry is an objective inquiry, not a subjective inquiry concerning the

decision-making process of a particular judge or jury.

      The assessment of prejudice should proceed on the assumption that the
      decisionmaker is reasonably, conscientiously, and impartially applying
      the standards that govern the decision. It should not depend on the
      idiosyncracies of the particular decisionmaker, such as
      unusual propensities toward harshness or leniency. Although
      these factors may actually have entered into counsel's selection of
      strategies and, to that limited extent, may thus affect the performance
      inquiry, they are irrelevant to the prejudice inquiry. Thus, evidence
      about the actual process of decision, if not part of the record of the


                                           2
      proceeding under review, and evidence about, for example, a
      particular judge’s sentencing practices, should not be
      considered in the prejudice determination.
Strickland, 466 U.S. at 695 (emphasis added).

      In Strickland, the Supreme Court held that testimony of the sentencing judge

was “irrelevant” to the prejudice inquiry – highlighting that this is an objective, not

subjective, inquiry. In the federal habeas proceeding in Strickland, “[t]he State of

Florida, over respondent's objection, called the trial judge to testify” in the district

court. 466 U.S. at 678. As explained in the Court of Appeals’ decision, “[o]ver the

strenuous objection of Washington’s counsel, the [state-court trial] judge testified

that evidence of the type contained in petitioner's fourteen affidavits and two

psychiatric reports would not have altered his determination that Washington

deserved the death penalty.” Washington v. Strickland, 693 F.2d 1243, 1249 (11th

Cir. 1982) (en banc) (plurality opinion), rev’d by Strickland, 466 U.S. 668. The

Supreme Court expressly held that the state-court trial judge’s testimony

concerning the effect particular mitigation evidence would have had on his

sentencing decision was “irrelevant”:

             Our conclusions on both the prejudice and performance
      components of the ineffectiveness inquiry do not depend on the trial
      judge’s testimony at the District Court hearing. We therefore need not
      consider the general admissibility of that testimony, although, as noted
      [above], that testimony is irrelevant to the prejudice inquiry.
466 U.S. at 700 (emphasis added; citation omitted).
      Relying on this aspect of Strickland, at least two recent federal appellate

decisions have held that evidence concerning how individual jurors would have

reacted to particular evidence is irrelevant to the prejudice inquiry, and that a post-

conviction court errs by relying on such evidence. Sealey v. Warden, Ga. Diagnostic

Prison, 954 F.3d 1338, 1358 (11th Cir. 2020) (“Although Sealey put forward the

affidavit of a juror from his trial suggesting that testimony from his family [as
mitigating evidence at sentencing] would have made a difference, the assessment of


                                            3
prejudice does ‘not depend on the idiosyncrasies of the particular decisionmaker.’

Rather, the inquiry under Strickland is an objective one.”; citing and quoting

Strickland, 466 U.S. at 695); Garner v. Lee, 908 F.3d 845, 862-63 (2d Cir. 2018)

(district court erred in assessing Strickland prejudice based in part on individual

juror’s post-trial statements to media and to investigator; “the proper focus of the

inquiry is the reliability of the result, from an objective viewpoint, and not the

‘unusual propensities’ of particular judges or jurors”; citations omitted).

      Multiple federal appellate cases have held that, under Strickland, it is

inappropriate to gauge prejudice based on whether additional evidence or

arguments would have swayed the particular judge who presided over a defendant’s

trial and sentencing. Those cases also hold that it is erroneous to do exactly what

our cases do: give greater deference to a decision denying post-conviction relief,

because the judge denying the motion was also the sentencing judge. Thus, in

Williams v. Allen, 542 F.3d 1326 (11th Cir. 2008), the Eleventh Circuit held that a

federal trial judge ruling on a habeas petition had given inappropriate weight to the

fact that the same state-court judge who had sentenced the defendant to death later

said that additional evidence would not have altered his decision.

              In its own assessment of prejudice, the district court focused on
      the fact that the same judge who sentenced Williams to death presided
      at the [state-court post-conviction relief] hearing. Because that judge
      found no reasonable likelihood that the additional evidence would have
      prompted him to impose a different sentence, the district court
      concluded that Williams could not establish prejudice. However, a
      trial judge's post-hoc statements concerning how additional evidence
      might have affected its ruling are not determinative for purposes of
      assessing prejudice. Indeed, in Strickland, the trial judge who
      sentenced the petitioner to death testified during federal habeas
      proceedings that the additional evidence would not have caused him to
      rule differently. The Supreme Court held that this testimony was
      “irrelevant to the prejudice inquiry.” The Court made clear that the
      assessment should be based on an objective standard that presumes a
      reasonable decisionmaker. Applying that standard, we conclude that
      Williams has demonstrated sufficient prejudice to warrant relief. For


                                           4
      the reasons discussed above, we cannot say with confidence that the
      outcome of the sentencing phase would have been the same absent his
      trial counsel's errors.
Id. at 1344-45 (citations omitted).

      Similarly, in Saranchak v. Beard, 616 F.3d 292 (3d Cir. 2010), the Third

Circuit held that a state court had improperly conducted a Strickland prejudice

inquiry, where the state court “highlight[ed] the fact that the [post-conviction relief]

judge was also the judge” at trial, and erroneously “consider[ed] the effect the new

evidence would have had on that particular judge . . . rather than considering, more

abstractly, the effect the same evidence would have had on an unspecified, objective

factfinder, as required by Strickland.” Id. at 309. See also White v. Ryan, 895 F.3d

641 (9th Cir. 2018) (concluding that state court’s “prejudice determination was

contrary to Strickland” where “the court determined whether it would have imposed

a death penalty if it had considered the mitigation evidence that McVay failed to

present. However, the test for prejudice is an objective one.”; citing Strickland, 466

U.S. at 695).

      I recognize that it will be an unusual case in which we will reverse a circuit

court’s conclusion that there is no reasonable probability that additional mitigation

evidence or argument would have affected sentencing. We owe substantial
deference to such decisions both because of the discretionary nature of sentencing

decisions under an indeterminate sentencing regime like Missouri’s, but also

because we may only reverse a circuit court decision granting or denying post-

conviction relief if we find that decision to be “clearly erroneous.” Rules 24.035(k),

29.15(k). But although we may owe substantial deference to circuit court decisions

in this area, our level of deference should not be affected by the specific identities of

the sentencing and post-conviction relief judges.

      For reasons explained in the majority opinion, the circuit court did not clearly
err when it concluded that there was not a reasonable probability that presentation


                                            5
of mitigation evidence, or consideration of a “dual jurisdiction” disposition, would

have resulted in a lesser sentence. I accordingly concur in affirmance of the circuit

court’s denial of post-conviction relief.




                                                Alok Ahuja, Judge




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