                                            In the
                          Missouri Court of Appeals
                                    Western District


                                                
ALYSSA D. BUSTAMANTE,                           
                                                   WD77493
                 Appellant,                        OPINION FILED:
v.                                              
                                                   September 29, 2015
STATE OF MISSOURI,                              
                                                
                Respondent.                     
                                                
                                                


                   Appeal from the Circuit Court of Cole County, Missouri
                           The Honorable Patricia S. Joyce, Judge

                                    Before Division One:
           Cynthia L. Martin, P.J., Joseph M. Ellis, and James Edward Welsh, JJ.


       Alyssa Bustamante appeals the circuit court's judgment denying her Rule 24.035 motion

for post-conviction relief after an evidentiary hearing. She claims that she was denied effective

assistance of counsel and that the statute under which she was initially charged with first-degree

murder is unconstitutional as applied to her. Finding no clear error, we affirm.

                                           Background

       On October 21, 2009, fifteen-year-old Alyssa Bustamante strangled and stabbed nine-

year-old Elizabeth Olten to death and then buried her body in a shallow grave. Upon questioning
by law enforcement officers, Bustamante admitted that she had killed the child, and she led the

officers to the grave.1

         In November 2009, the Cole County Juvenile Officer filed a petition asking the juvenile

court to relinquish its jurisdiction over Bustamante to allow the State to prosecute her as an adult

in circuit court. The juvenile court held a "certification" hearing (at which Bustamante was

represented by counsel) and ultimately granted the Juvenile Officer's petition. The State then

charged Bustamante as an adult with first-degree murder and armed criminal action. Attorneys

Donald Catlett and Charles Moreland from the Capital Division of the Public Defender's Office

entered an appearance on Bustamante's behalf. The matter was set for trial on January 26, 2012.

         On January 10, 2012, Bustamante appeared before the circuit court, accompanied by her

attorneys, to plead guilty to second-degree murder and armed criminal action, pursuant to an

agreement with the State. Plea counsel informed the court that he and co-counsel had reviewed

the substitute information with Bustamante and that she was "prepared today to take

responsibility for these offenses." Bustamante confirmed that she wanted to withdraw her not-

guilty plea and to plead guilty to the charges in the substitute information.

         The court informed Bustamante of the range of punishment for the offenses and

explained that there would be a sentencing hearing at which evidence would be taken and the

court would then decide what the sentence would be. Bustamante acknowledged that she

understood that she was entering a "blind plea," meaning that the judge was not bound by any

agreed upon sentence, and that she could not withdraw her guilty plea after the plea hearing. The

circuit court accepted Bustamante's guilty plea after finding that she had entered the plea


         1
           Following a suppression hearing, the circuit court found that Bustamante's admissions had been obtained
in violation of the rules for juvenile statements and excluded them from the evidence that could be presented at trial.

                                                           2
"knowingly, willingly, voluntarily, and intelligently," with a full understanding of the charges and

the consequences of the plea, and that a factual basis had been established for the plea.

       At the sentencing hearing, numerous witnesses, including several expert witnesses,

testified for both sides. The circuit court heard evidence about Bustamante's history of mental

health issues and about the circumstances surrounding the murder. On February 8, 2012, the

court sentenced Bustamante to consecutive terms of life for the murder and thirty years for ACA.

       While Bustamante's case was being adjudicated in circuit court, a case contesting the

constitutionality of a mandatory life-without-parole sentence for a juvenile convicted of first-

degree murder, Miller v. Alabama, 132 S.Ct. 2455 (2012), was pending in the United States

Supreme Court. In June 2012, the Court held in Miller that a statute providing for a mandatory

sentence of life without parole for a juvenile convicted of a homicide offense violates the Eighth

Amendment's ban on cruel and unusual punishment. Id. at 2469.

       Bustamante filed a timely pro se motion for post-conviction relief. Her retained post-

conviction counsel entered his appearance and thereafter filed an amended motion pursuant to

Rule 24.035. The amended motion alleged, inter alia, that Bustamante was denied effective

assistance of counsel and that Missouri's first-degree murder statute (§ 565.020, RSMo 2000) is

unconstitutional as applied to juveniles, pursuant to Miller.

       Following an evidentiary hearing, at which Bustamante and both plea attorneys testified,

the circuit court denied Bustamante's motion for post-conviction relief. Bustamante appeals.

                                       Standard of Review

       Our review of the circuit court's ruling on a Rule 24.035 motion is limited to determining

whether its findings and conclusions are clearly erroneous. Rule 24.035(k). Findings and

conclusions are clearly erroneous only if we have a definite and firm impression that a mistake

                                                 3
was made. Dobbins v. State, 187 S.W.3d 865, 866 (Mo. banc 2006). The movant bears the

burden of proving his claims for relief by a preponderance of the evidence. Rule 24.035(i).

                                                   Discussion2

         In Point I, Bustamante contends that the circuit court erred in denying her claim that plea

counsel rendered ineffective assistance by "failing to advise her fully and make certain that she

understood the effect of" the pending case of Miller v. Alabama, 132 S.Ct. 2455 (2012), before

she pleaded guilty. Bustamante claims that this resulted in her plea being involuntary and

unknowing in that, had she known that there was a possibility that she would not face mandatory

life without parole, she would not have pleaded guilty but would have chosen to go to trial.


         2
           The State has filed a motion seeking a "Limited Remand to Determine Whether the Amended Post-
Conviction Motion was Timely Filed," which this Court has taken with the case. The State argues that, because it is
not readily apparent when, or if, the transcript of the plea and sentencing hearings was "filed" (one of the acts that
dictates the due date for the amended motion pursuant to Rule 24.035(g)), there is "a potential issue concerning the
timeliness of the amended post-conviction motion [that] needs to be further evaluated," in light of Moore v. State,
458 S.W.3d 822, 825-26 (Mo. banc 2015). Moore held that an untimely amended motion required remand to
determine whether the late filing constituted abandonment and, hence, a determination as to whether the amended or
the pro se motion should be considered by the court. Id. If the motion court determined that the movant was
abandoned, then it should consider the claims in the amended motion, but if the movant was not abandoned, then the
motion court should proceed to adjudicate only those claims in the timely pro se motion. Id.

          Here, the State urges this Court to remand for the circuit court to determine whether the amended motion
was timely, and if not, whether the movant was abandoned by post-conviction counsel. We have concluded that
remand is unnecessary in this case. Recently, in Childers v. State, 462 S.W.3d 825, 827 (Mo. App. 2015), after the
circuit court treated the amended post-conviction motion as timely, held an evidentiary hearing, and denied all of the
claims therein, the appellate court determined, sua sponte, that the amended motion was untimely. The Childers
Court concluded, however, based on its reading of Moore, that remand was not necessary in its case. Id. at 828.
Unlike Moore (where the motion court "did not reference [the pro se] claims or adjudicate them with written
findings of fact and conclusions of law"), in Childers, "all of the claims in both the pro se and amended motion
ha[d] been adjudicated with written findings of fact and conclusions of law." Id. (quoting Moore, 458 S.W.3d at
826, n. 3). The appellate court thus concluded that Childers "ha[d] received all the process to which he is entitled"
and that "remand would be pointless." Id. (citing Moore, 458 S.W.3d at 827-31 (Wilson, J., dissenting) (declaring
that remand is "pointless" where the pro se claims have been incorporated into the amended motion and thus
adjudicated along with the amended motion)). The Childers Court proceeded to review the appeal on its merits. Id.

         The same is true here. The movant in this case raised two claims in her pro se motion, both of which were
included in the Rule 24.035 amended motion. The motion court held an evidentiary hearing on the claims raised in
the amended motion (and therefore also the claims raised in the pro se motion), addressed those claims in its
findings of fact and conclusions of law, and denied them all. Consequently, here, as in Childers, we conclude that a
remand on the issue of timeliness "would be pointless," and, as in Childers, we will examine the merits of the
appeal. The State's motion for remand is denied.

                                                          4
       To succeed on a claim of ineffective assistance of counsel in a Rule 24.035 proceeding,

the movant must establish: "(1) that counsel's performance did not conform to the degree of

skill, care and diligence of a reasonably competent attorney; and (2) that [she] was thereby

prejudiced." Haskett v. State, 152 S.W.3d 906, 909 (Mo. App. 2005) (citing Strickland v.

Washington, 466 U.S. 668, 687 (1984)). If the movant fails to prove either criterion, we do not

consider the other. Id. In a Rule 24.035 case, a movant establishes prejudice by demonstrating a

reasonable probability that, but for counsel's errors, she would not have pleaded guilty but would

have insisted on proceeding to trial. Jones v. State, 211 S.W.3d 210, 213 (Mo. App. 2007).

       "[A] guilty plea must be a voluntary expression of the defendant's choice, and a knowing

and intelligent act done with sufficient awareness of the relevant circumstances and likely

consequences." State v. Roll, 942 S.W.2d 370, 375 (Mo. banc 1997). By pleading guilty, a

defendant "waive[s] any claim that counsel was ineffective except to the extent that the conduct

affected the voluntariness and knowledge with which the plea was made." Worthington v. State,

166 S.W.3d 566, 573 (Mo. banc 2005).

       In her amended motion and at the evidentiary hearing, Bustamante claimed that she was

denied effective assistance and that her plea was involuntary because, despite knowing that a

ruling on Miller could potentially invalidate a first-degree murder statute (like Missouri's) that

mandates a life-without-parole sentence as applied to a juvenile offender, plea counsel advised

and "pressured" her to plead guilty before Miller was decided.

       The circuit court rejected Bustamante's claim, finding that the record showed that she

"was advised about the litigation in the Miller case and that it was pending in the Supreme

Court." The court further found that Bustamante "understood that the issue of life imprisonment

without parole for juveniles was going to be decided" and that she "was advised by her attorneys

                                                  5
of the issue." The court concluded that she "would have entered her plea of guilty to murder in

the second degree regardless of the advice of her attorneys" and that her testimony to the

contrary was "not credible." The court noted that the evidence against Bustamante was "both

strong and aggravating," which would not "favor her at any trial" and found, therefore, that her

assertion that she would have gone to trial was "difficult to countenance."

         The record of the evidentiary hearing supports these findings. Bustamante's post-

conviction counsel presented the testimony of plea attorneys Moreland and Catlett at the

evidentiary hearing. Both attorneys indicated that they were aware, prior to Bustamante's guilty

plea, that Miller, 132 S.Ct. 2455, was pending in the United States Supreme Court and involved

the issue of whether a juvenile murderer could be sentenced to life without parole. Both

attorneys testified that they had discussed with Bustamante the concepts of Miller and also

Graham v. Florida, 560 U.S. 48 (2010) (which held that juveniles cannot be sentenced to life

without parole for a non-homicide offense).3

         Attorney Moreland testified that he recalled considering Miller and Graham, discussing

the issue of juvenile life-without-parole with Bustamante, and filing a motion based on Graham

to declare the first-degree murder statute unconstitutional as applied to her. Moreland stated that

he was "quite confident that we did discuss" that those two cases were pending, as well as the

risks and benefits of pleading guilty despite not knowing how the Court would rule in Miller.

Moreland agreed that Bustamante had expressed her understanding of the issues that he and co-

counsel were discussing with her. Moreland opined that if Bustamante had gone to trial, "she

stood a very strong risk of being found guilty of murder in the first degree by a jury, a very

         3
          While Bustamante's case was pending in circuit court, plea counsel filed a motion seeking to have
Missouri's first-degree murder statute (§ 565.020) declared unconstitutional, as applied to juveniles, as a "logical
extension" of Graham, 560 U.S. 48. The court denied the motion.

                                                           6
strong risk." He explained that pleading guilty to the lesser charge aided her by avoiding a jury

trial on guilt, where the focus would have been on the victim, and instead shifted the focus at the

sentencing hearing to Bustamante (and her mental health issues).

       Attorney Catlett testified that, although he did not specifically remember discussing

Graham and Miller with Bustamante, he believed that the relevant issues were discussed with

her when they filed the constitutional challenge to section 565.020 based on Graham. Catlett

stated that he was "sure" Bustamante was aware of that motion because she was present when

they presented it. He did not specifically recall whether Miller or Graham came up when he and

Moreland met with her to discuss the State's plea offer.

       Bustamante testified that she remembered discussing the plea offer with counsel and that

counsel explained the risks of accepting the offer. She also remembered talking with her

attorneys about legal issues but said she did not understand them. She stated that she was on

psychiatric medication that made her sleepy when they discussed the plea offer with her and that

they did not give her time to think about it. She accepted the plea offer, she said, because she

believed that it was the only way to avoid "the absolute certainty of life without parole." She

claimed that she was not aware of the Miller case and that, had she known the Supreme Court

was going to decide a case involving life without parole for juveniles, she would not have

entered a guilty plea but would have taken her chances with a jury.

       As noted, the circuit court found that counsel had fully advised Bustamante of the

juvenile life-without-parole issue and that her testimony to the contrary was not credible. On

appeal of a Rule 24.035 post-conviction motion, we defer to the circuit court's "superior ability to

determine matters of witness credibility." See State v. Taylor, 929 S.W.2d 209, 224 (Mo. banc

1996). "At [the] evidentiary hearing, the motion court determines the credibility of the witnesses

                                                 7
and is free to believe or disbelieve the testimony of any witness." Wills v. State, 321 S.W.3d 375,

380 (Mo. App. 2010). We presume that the circuit court's findings are correct, and we defer to

that court's determinations of credibility. Id. Thus, to the extent that there was any conflict in

the testimony at the evidentiary hearing, we defer to the circuit court's credibility findings.

       In any event, with the trial date set to begin in two weeks, and the State's deadline on the

plea offer set to expire in two days, counsel cannot be deemed ineffective for not somehow

waiting for the decision in Miller, or for failing to predict what the holding in Miller might be.

"[F]ailure to predict a change in the law is not ineffective assistance." State v. Parker, 886

S.W.2d 908, 923 (Mo. banc 1994). Moreover, as more fully explained below, even after Miller,

132 S.Ct. at 2469, Bustamante still could have been sentenced to life without parole after

consideration of other factors (see State v. Hart, 404 S.W.3d 232, 238-39 (Mo. banc 2013); State

v. Nathan, 404 S.W.3d 253, 270-71 (Mo. banc 2013)), and her desire to avoid such a sentence

still inevitably would have motivated her to accept the plea offer.

       Bustamante fails to establish that the circuit court clearly erred in finding no ineffective

assistance of counsel related to this claim, and, thus, the point is denied.

       In Point II, Bustamante contends that the statute under which she was initially charged

with first-degree murder (§ 565.020, RSMo) is unconstitutional as applied to her, in light of the

later decision in Miller, which held that a mandatory sentence of life without parole for a

juvenile convicted of a homicide offense violates the Eighth Amendment's ban on cruel and

unusual punishment. See 132 S.Ct. at 2469. She claims that, had she not been charged with

first-degree murder, a reasonable probability exists that she would not have pleaded guilty to

second-degree murder.



                                                  8
       Bustamante alleged in her amended 24.035 motion that she was denied her constitutional

right to be free of cruel and unusual punishment when she was charged with first-degree murder

for an act committed when she was a juvenile. She claimed that, because she could not be

sentenced to death, the only sentence available for a first-degree murder conviction was

mandatory life without parole, which Miller rendered unconstitutional as applied to juveniles.

       The motion court rejected this claim based, in part, on the Missouri Supreme Court's

interpretation of the Miller case in State v. Hart, 404 S.W.3d 232 (Mo. banc 2013), and State v.

Nathan, 404 S.W.3d 253 (Mo. banc 2013). In Miller, the United States Supreme Court did not

bar a sentence of life without parole for a juvenile murderer; it held instead that a sentencing

scheme that mandates the imposition of such a sentence for juveniles was impermissible. See

132 S.Ct. at 2469. In Hart, our Supreme Court held that, after Miller, a juvenile in Missouri can

still be found guilty of first-degree murder and sentenced to life without parole, just not under a

mandatory sentencing scheme. 404 S.W.3d at 241-42; accord Nathan, 404 S.W.3d at 270-71.

       In Hart, and in Nathan, our Supreme Court addressed and rejected the very same

constitutional challenge that Bustamante raises. The defendant in Hart claimed that, because

"the only authorized sentences for first-degree murder are unconstitutional as applied to juvenile

offenders, . . . section 565.020 is void for failure to provide a valid punishment." 404 S.W.3d at

234. The Court rejected that claim because the Eighth Amendment, as interpreted by the

Supreme Court in Miller, does not categorically bar imposition of a life-without-parole sentence

on a juvenile murderer. Id. at 237. "Instead, Miller holds that such a sentence is constitutionally

permissible as long as the sentencer determines [that] it is just and appropriate in light of the

defendant's age, maturity, and the other factors discussed in Miller." Id. at 237-38. The Court



                                                  9
expressly rejected the argument that section 565.020 was "void" for failure to provide a

"constitutionally permissible punishment," stating:

        Hart's claim that section 565.020 is void is premature. As noted above, Hart claims
        that section 565.020 is void for lack of a constitutionally permissible punishment
        because, like the death penalty, life without parole is an unconstitutional sentence
        for all juvenile offenders. The Court rejects this argument because, if the sentencer
        determines on remand that life without parole is a just and appropriate sentence for
        Hart under all the circumstances, that sentence is constitutional under Miller.

Id. at 239; see also Nathan, 404 S.W.3d at 270-71 (citing Hart for the same proposition).

        When the Missouri Supreme Court has already decided the precise issue that is raised in

this Court, we have jurisdiction, but we and all lower courts must follow the Supreme Court's

ruling. See State v. Davis, 203 S.W.3d 796, 801 (Mo. App. 2006).4 Here, the motion court did

just that; thus, it did not clearly err in rejecting this claim. Consequently, Point II also is denied.

        In Point III, Bustamante contends that the circuit court clearly erred in denying her claim

that plea counsel was ineffective in failing to challenge her certification as an adult by seeking a

remand to the juvenile court. She claims that "reasonably effective counsel would have known

that the evidence presented in juvenile court was insufficient to warrant certification."

        At the certification hearing, the juvenile court noted that it must presume that the juvenile

committed the alleged offenses and determine if a juvenile committing such an offense would be

"a fit subject" to be dealt with under the juvenile code. Bustamante's counsel objected to any

        4
            As to whether this Court has jurisdiction to consider this constitutional claim, we explained in Davis:

        When a defendant challenges the constitutionality of a statute, the provisions of Article V, Section
        IV of the Missouri Constitution would normally divest this court of jurisdiction. Merely asserting
        that the statute in question is unconstitutional does not necessarily deprive this court of jurisdiction
        unless that issue is real and substantial and not merely colorable. Where, however, "the Missouri
        Supreme Court has already twice ruled on the precise issue," presented by the Defendant, "the
        court of appeals has jurisdiction, but must . . . follow the rule decided by the Supreme Court."

203 S.W.3d at 800-01 (internal citations omitted). Here, as in Davis, this constitutional claim is merely colorable
because the very claim that Bustamante makes has already been rejected by our Supreme Court in Hart and Nathan.

                                                            10
testimony describing the offense in detail, noting that the facts as alleged in the petition are

presumed to be true for purposes of the hearing. An investigator gave limited testimony about

Bustamante's admissions after the murder. At the end of the hearing, the juvenile court

relinquished jurisdiction, finding, inter alia, that "the nature of the crime charged was serious,

vicious, violent, and forceful [and] resulted in the death of a nine-year-old child."

       In her amended post-conviction motion, Bustamante alleged that her plea attorneys were

ineffective for failing to revisit her juvenile certification by filing "a motion to remand [her] to

juvenile court in light of the juvenile court's failure to consider [her] unbalanced emotional

condition." The motion court rejected the claim because Bustamante "did not present any

evidence [at the evidentiary hearing] that she sought such action." The court also found that

there was "no evidence to show any chance of merit on such a motion" and the record showed

that she "was properly certified."

       The circuit court did not err in finding that Bustamante abandoned this claim by failing to

present any evidence to prove it at the evidentiary hearing. Although both plea counsel testified

at the evidentiary hearing, neither was questioned about the failure to file a remand motion on

the certification issue. "Allegations in a post-conviction motion are not self-proving." Cole v.

State, 223 S.W.3d 927, 931 (Mo. App. 2007). "It is well-settled that a movant's failure to present

evidence at a hearing to provide factual support for a claim in his or her post-conviction motion

constitutes an abandonment of that claim." Id. at 932 (citing State v. Nunley, 980 S.W.2d 290,

293 (Mo. banc 1998)). "A hearing court is not clearly erroneous in refusing to grant relief on an

issue which is not supported by evidence at the evidentiary hearing." Id.

       Moreover, as noted, a defendant who pleads guilty "waive[s] any claim that counsel was

ineffective except to the extent that the conduct affected the voluntariness and knowledge with

                                                  11
which the plea was made." Worthington, 166 S.W.3d at 573. Here, Bustamante does not argue

-- nor does she show -- that plea counsel's failure to challenge the juvenile certification affected

the voluntariness of her plea.

       In sum, Bustamante does not demonstrate that the motion court clearly erred in denying

this claim of ineffective assistance of counsel. This point also is denied.

       For the foregoing reasons, we affirm the circuit court's judgment.




                                                      /s/ JAMES EDWARD WELSH
                                                      James Edward Welsh, Judge


All concur.




                                                 12
