 

In the Missouri Court of Appeals

Eastern District
DIVISION FOUR
FREDRICK A. BARNES, ) No. ED103895
)
Appellant, ) Appeal from the Circuit Court of
) the City of St. Louis, Missouri
vs. ) l 322-CC08864
)
STATE OF MISSOURI, ) Honorable Thomas J. Frawley
)
Respondent. ) Filed: December 27, 2016

OPINION

Fredrick A. Barnes was convicted of first-degree murder and twelve other counts arising
out of a night of horrific events that occurred on Brantner Place in the City of St. Louis on
September 28, 2007. Barnes forced a female victim to perform oral sex, raped her in front of her
two-year-old child, killed her boyfriend, and set fire to the victims’ apartment Because the State
did not waive the death penalty for the first-degree murder charge, Barnes was tried separately
on that count.l A jury convicted Barnes of first-degree murder, and Barnes was sentenced to life
imprisonment without the possibility of probation or parole. Barnes’s murder conviction was
affirmed on appeal. See S!ate v, Barnes, 384 S.W.3d 298 (Mo.App.E.D. 2012).

Following Barnes’s first-degree murder trial, Barnes waived his right to a jury trial on the
remaining twelve charges and agreed to have those charges submitted to the court in a bench trial

based upon the trial transcript from the murder trial. The waiver was made pursuant to an

 

1 see § 565.004 RSMO 2000.

 

agreement with the State that Barnes’s sentences wouid not exceed twenty-five years and any
sentence would be ordered to run consecutively to the life sentence he received for the first-
degree murder conviction

The trial court found Barnes guilty on all twelve charges, including first-degree assault,
forcible rape, forcible sodomy, first-degree robbery, first-degree arson, first-degree endangering
the welfare of a child, third-degree assault, and five counts of armed criminal action. Consistent
with the agreement described above, the court issued numerous sentences for the twelve
convictions but ordered those sentences to run concurrently to each other such that the maximum
sentence Barnes received was twenty-five years which the court ordered to run consecutively to
his life sentence for the first-degree murder charge. Barnes’s convictions were affirmed on
direct appeal. See Stafe v. Barnes, 395 S.W.3d 43 (Mo.App.E.D. 2013).

Barnes now appeals the denial without an evidentiary hearing of his Rule 29.152 motion
for post-conviction relief. In his sole point on appeal, Barnes ciaims he received ineffective
assistance of counsel because his trial attorneys pressured him and improperly induced him into
waiving his right to a jury trial on the twelve charges he agreed to have tried by the court using
the trial transcript from the first-degree murder jury trial. Finding no clear error, we affirm.

Standard of Review

Appellate review of the denial of a Rule 29.15 motion is limited to a determination of

whether the motion court’s findings, conclusions, and judgment are clearly erroneous Anderson

v. State, 196 S.W.3d 28, 33 (Mo.banc _2006). Findings and conclusions are clearly erroneous if

 

2 All references to rules are to the Missouri Supreme Court Rules (2016) unless otherwise
indicated.

 

 

after a review of the entire record we are left with the definite and firm impression that a mistake
has been made. Id. We presume that the motion court’s findings are correct. Id.
Discussion
A. The motion court did not clearly err in denying without an evidentiary hearing
Barnes’s claim of ineffective assistance of trial counsel.

Barnes argues that he received ineffective assistance of counsel because his trial attorneys
pressured him and improperly induced him into waiving his right to a jury trial and into agreeing
to have the remaining charges in the case submitted to the trial court for a bench trial based on the
trial transcript from Barnes’s first-degree murder trial. Barnes contends that he was persuaded to
waive his right to a jury trial because the trial court agreed to sentence him to no more than twenty-
five years to run concurrently with his life sentence, but argues that the court did not comply with
the agreement and instead sentenced him to twenty-five years and ordered that sentence to run
consecutively to, and not concurrently with, his life sentence The motion court denied Barnes’s
amended motion without an evidentiary hearing Finding no clear err'or, we affirm.

An evidentiary hearing is not required with every Rule 29.15 motion. See Rule 29.15(h).
“To be entitled to an evidentiary hearing, a movant must: (1) allege facts, not conciusions, that, if
true, would warrant relief; (2) these facts 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.” Barnett
v. Smte, 103 S.W.3d 765, 769 (Mo.banc 2003) (citing State v. Brooks, 960 S.W.Zd 479, 497
(Mo.banc 1997)).

To prove ineffective assistance of trial counsei, the movant must satisfy the following two-
prong test from Sfrickland v. Washingron, 466 U.S. 668, 687 (1984): l) that counsel’s performance

did not conform to the degree of skill and diligence of a reasonably competent attorney; and 2)

 

that as a result thereof, the movant was prejudiced Zz'nk v. Stafe, 278 S.W.3d 170, 175 (Mo.banc
2009). The movant must overcome a strong presumption that counsel’s performance was
reasonable and effective to meet the first prong. Id. at 176. To satisfy the second prong, the
movant must show that there was a reasonable probability that, but for counsel’s alleged errors,
the outcome would have been different. Id. If either the performance or the prejudice prong is not
met, then we need not consider the other and the claim of ineffective assistance must fail. State v.
Si))amons, 955 S.W.Zd 729, 746 (Mo.banc 1997).

Here, we find that Barnes has faiied to meet both prongs of the Strickland test. As to the
performance pr'ong, the record refutes that Barnes was improperly pressured and induced into
waiving his right to a jury trial. Barnes filed a written waiver of his right to a jury trial signed by
him, his attorney, and the attorney for the State in which he specifically stated that it was his desire,
after consulting with his attorneys, to have the remaining untried counts tried to the court without
a jury using the trial transcript from the first-degree murder trial. Barnes acknowledged that he
had a right to a jury trial unless he waived that right, and stated that it was his understanding that
in exchange for the waiver, the State and the court would agree, that if the court found Barnes
guilty of any or all remaining pending counts, the sentence imposed would not exceed twenty-five
years and would run consecutive to the life sentence previously imposed.

When this written waiver was presented in open court with Barnes present, Barnes’s
attorney asked the court to accept and approve Barnes’s waiver. The court accepted, signed, and
approved Barnes’s waiver of his right to a jury trial.

In addition, after finding Barnes guilty of all remaining charges and sentencing him, the
court advised Barnes regarding his rights under Rule 29. 15 and asked him about the effectiveness

of his attorney, Barnes admitted that he and his attorney discussed how the matter would proceed,

 

that nothing happened during the proceedings that was different than what his attorney told him
would happen, that his attorney explained to him that he had the right to a jury trial, had the right
to waive a jury triai, and that there was not anything his attorney had not done that he thought she
should have done for him. Barnes testified that his attorney did not make any threats or promises
to him to have the matter heard and resolved in the manner it was resolved and that the only
promise that was made to him was that if the court found him guilty that his sentence would not
exceed twenty-five years to run consecutive to his life sentence. Moreover, the record showed
clearly that Barnes knew he had the right to a jury trial, having exercised his right to a jury trial in
this case on the first-degree murder charge.

We find that this evidence refutes Barnes claims that his attorneys coerced him into
waiving his right to a jury trial on the remaining twelve charges. To the contrary, the record shows
that Barnes knowingly and voluntarily waived his right to a jury trial on these remaining twelve
charges based upon the agreement that he would receive a maximum sentence of twenty-five years
on those remaining charges While Barnes now argues that he was misled about his sentence
running consecutive to his life sentence, this argument is refuted by the contrary terms in the
written waiver he signed and in the transcript of the proceedings during which the court accepted
his waiver.

Fuithermore, Barnes’s waiver of his right to a jury trial was made pursuant to a sentencing
agreement, which we find analogues to a plea agreement And the expectation that a defendant
will receive a lighter sentence does not make a plea involuntary McMahon v. Stare, 569 S.W.Zd
753, 758 (Mo.banc 1978). Indeed,_ it is well-settled that a disappointed hope of a lesser sentence
does not make a plea involuntary McCall v. Stafe, 771 S.W.Zd 357, 359 (Mo.App.E.D. 1989)

(citing McMahon, 569 S.W.Zd at 758).

 

 

Finally, as to the prejudice prong of the S!rickland test, Barnes’s claim also fails. Barnes
has not shown a reasonable probability that, but for counsel’s alleged errors, the outcome would
have been different While Barnes alleges that but for counsel’s alleged errors he would have
insisted on a jury trial on the remaining twelve charges, he does not allege how the outcome of a
jury trial would have been different than the outcome of his bench trial. Barnes does not explain
how the same evidence detailing his September 28, 2007, crime spree that the jury found sufficient
to convict him of first-degree murder and the court found sufficient to convict him of the remaining
twelve charges would not have likewise resulted in convictions on the twelve related charges had
he insisted on proceeding with a jury trial on those charges. Moreover, Barnes has failed to show
that he would have received a lighter sentence than the additional twenty-five years he got pursuant
to the agreement described above. Thus, the motion court did not clearly err. Point denied.

Conclusion

For the reasons stated abcve, we affirm.

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Kurt S, Odenwald, J., and
Gary M. Gaertner, Jr., J., concur.

 

