Trial And Sentencing
On August 13 2010, Goodwater was indicted by a grand jury with nineteen counts of the class B felony of possession of a child pornography video and one count of the class C felony of possession of a single photograph of child pornography pursuant to section 573.037.
During rebuttal closing argument the State argued:
He has had twenty-six months to figure out a way to get back whatever he said. He has had twenty six months to change what the Detective told you he said to him when he turned that recorder off ... Really? He had two years to try to come up with something that he thought maybe you folks would buy.
Trial counsel did not object to this statement or any other statement during the State's closing argument.
The jury convicted Goodwater of all counts. Goodwater waived jury sentencing and was sentenced by the trial court.
At the sentencing hearing, Goodwater's counsel attempted to mitigate his bad acts by stating that "granted, these are not images that anyone should see or images that anyone should have produced, but Goodwater did not produce these images." In response to this argument, the trial court stated that "the problem this Court
The sentencing assessment report ("SAR") provided a mitigating sentence of "community structured sentence," a typical sentence of "5 years prison" and an aggravated sentence of "8 years to 15 years prison." The State recommended a total sentence of thirty-seven years in the Department of Corrections. Prior to sentencing, Goodwater's trial counsel stated:
I'm not certain why the State has that recommendation today. I am not certain why the State wants to punish him more than what they did before the plea or before the trial. I think everyone is entitled to their day in court. In fact, if someone takes their day in court that should not somehow enhance their punishment.
The trial court responded by stating:
Okay. Well, as the State pointed out, these young victims are violated every time these images are viewed or displayed. The jury had to view numerous images and films so upsetting and so vulgar, the only way this Court could attempt to describe those images is to say it was like viewing hell on Earth. I mean, the English language doesn't obviously doesn't contain the words this Court needs to express its absolute and total disgust and outrage when viewing the material, and for those reasons, the Court can't follow the SAR.
There was no objection by Goodwater's trial counsel to this statement. The sentencing court sentenced Goodwater to a total of twenty-five years' incarceration.
Goodwater timely appealed his conviction to this Court. His appellate counsel raised one claim, alleging that the trial court abused its discretion in excluding eleven witnesses whose computers Goodwater had repaired. This Court affirmed the trial court's judgment in a per curiam opinion, State v. Goodwater ,
Evidentiary Hearing on the Rule 29.15 Motion
Goodwater timely filed his Rule 29.15 motion. He raised nine claims, three of which were raised against both appellate and trial counsel.
As relevant to this appeal, in his motion claims 8/9(a) and 8/9(b), Goodwater alleged appellate and trial counsel respectively failed to raise on appeal and object to the trial court's sentencing Goodwater more harshly because he had exercised his right to a jury trial. In claims 8/9(c) and 8/9(d), Goodwater alleged appellate and trial counsel respectively failed to raise on appeal and object to the trial court's sentencing Goodwater more harshly because the trial court in this case always considers the crime of possessing child pornography to include the production of child pornography. In claim 8/9(e), Goodwater alleged trial counsel failed to object to the State's closing argument that Goodwater "had two years to try to come up with something." In claims 8/9(f) and 8/9(g), Goodwater alleged appellate and trial counsel respectively failed to raise on appeal and object to Goodwater's twenty child pornography convictions on double jeopardy and unit of prosecution grounds.
An evidentiary hearing on the motion was held on January 19, 2017. During the hearing, Goodwater's trial counsel testified that he could not recall why he did or did not do anything concerning the trial court's comments during sentencing. Trial counsel testified that after being read the comments at the hearing, he believed the
Trial counsel further testified that he was unable to articulate a reason for not objecting to the trial court's statement regarding possession of child pornography being equivalent to promoting child pornography. Trial counsel went on to testify that "I can tell you what the Court was indicating there I don't believe there was something objectionable, but you may believe different and maybe I should have."
Trial counsel testified that he remembered a conversation about State v. Liberty ,
Trial counsel also testified that in retrospect, he maybe should have objected to the State's arguments regarding the time Goodwater had to make up a new story. Trial counsel testified that a jury will sometimes get mad when objections are made during closing argument. Trial counsel stated that it was one of his trial strategies to be very cautious about when to object during closing arguments.
During the hearing Goodwater's appellate counsel also testified. She testified that she did not identify retaliatory sentencing as a potential claim on direct appeal. Appellate counsel testified that she should have raised it and would have if she had identified it as a potential claim. She acknowledged that the trial court could have imposed the same sentences based on its own disgust at the images and could have done so even had Goodwater opted for a bench trial instead of a jury trial. Appellate counsel testified that she would have had no problem raising the issue as a claim of plain error if she had identified it as a valid claim.
Appellate counsel further testified at the evidentiary hearing that she did not identify the trial court's remarks regarding promotion of child pornography as the basis for a potential claim on direct appeal. She testified that it would have been a novel claim, but one that would potentially have had merit. Appellate counsel said that she would have raised the claim had she identified it as a potential issue. She testified on cross-examination that she had never seen a claim like that before. Appellate counsel testified on redirect that if the trial court's comments did not seem right to her, even if she could not identify a legal basis for that feeling, she would have researched the issue and discussed it with colleagues.
Appellate counsel testified that she did not identify the double jeopardy issue as a potential claim on direct appeal. She testified that it should have been raised. Appellate counsel acknowledged that the success of such a claim would have depended on how the appellate court interpreted the unit of prosecution under the statute. She testified that the sentencing issue did not seem right to her after she read the amended Rule 29.15 motion, but that the issue did not dawn on her when she read the trial transcript and legal file.
The motion court denied all of Goodwater's claims. In this case the judge who presided over the trial was the same judge who heard the motion in this matter. The
This timely appeal followed.
Standard of Review
"This Court will affirm the judgment of the motion court unless its findings and conclusions are clearly erroneous." Johnson v. State ,
"To be entitled to post-conviction relief for ineffective assistance of counsel, a movant must show by a preponderance of the evidence that his or her trial counsel failed to meet the Strickland test in order to prove his or her claims."
"A movant must overcome the strong presumption that counsel's conduct was reasonable and effective."
The movant must also prove prejudice, which occurs when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Johnson ,
Analysis
Goodwater raises seven points on appeal. In Goodwater's first point on appeal, he argues that the motion court erred in denying his Rule 29.15 motion because appellate counsel was ineffective for not raising a claim of error on direct appeal regarding the trial court's allegedly retaliatory sentencing. In Goodwater's second point on appeal, he argues that the motion court erred in denying his Rule 29.15 motion because trial counsel was ineffective for failing to object to the trial court's allegedly retaliatory sentencing. In Point
Point One
Goodwater argues in his first point on appeal that the motion court clearly erred in denying his Rule 29.15 motion because appellate counsel was ineffective for failing to raise as a claim that the trial court punished Goodwater for exercising his constitutional right to trial. Goodwater argues that the trial court's comments prior to sentencing showed that there was a direct link between the sentence he received and his exercise of his right to trial. Goodwater argues that appellate counsel failed to exercise the customary skill and diligence of a reasonably competent attorney and this resulted in Goodwater's appeal being denied.
"As a general rule, appellate counsel will not be deemed ineffective for failing to raise an unpreserved claim of error on appeal." Henningfeld v. State ,
At the evidentiary hearing, appellate counsel testified that at the time she had not recognized it as a claim but should have raised it. She testified that had she recognized the claim, she would have had no problem raising it even under plain error review. In denying this claim, the motion court found that appellate counsel was not ineffective and the sentence given to Goodwater was based on other reasons and not based on Goodwater's decision to go to trial. After reviewing the record, we find no manifest injustice or miscarriage of justice resulted because the record does not demonstrate that such a claim would have been successful on appeal.
"Constitutionally, a court is prohibited from using the sentencing process to punish a defendant who chose[s] to exercise his or her right to proceed to trial." Greer v. State ,
"[N]o constitutional violation occur[s] if there were other reasons which also caused the court to impose the same sentence, so that the comment on the fact defendant went to trial was not determinative." Wright ,
"[O]nce it appears in the record that the sentencing court has taken into consideration a defendant's exercise of his constitutional right to proceed to trial, the record must show that no improper weight was given the refusal to plead guilty." Greer ,
The comments made by the trial court affirmatively show that the trial court's sentence was based upon the highly disturbing nature of the images possessed by Goodwater. While the trial court referenced the re-victimization of the children that occurred every time the images were viewed, the trial court made clear that its sentence was based on the grotesque nature of the images when it stated that "the only way this Court could attempt to describe those images is to say it was like viewing hell on Earth" and "the English language obviously doesn't contain the words this Court needs to express its absolute and total disgust and outrage when viewing the material." Further, in this case the trial judge and the judge who conducted the PCR hearing were the same. Special deference is given when the PCR judge and the trial judge are the same. See Noland v. State ,
Goodwater was sentenced to twenty-five years in prison based on his conviction for 20 separate felony charges. Goodwater faced the potential of a sentence of over 290 years. The State recommended a sentence of 37 years. This record does not support a conclusion that the trial court enhanced the sentence based on Goodwater's choice to go to trial.
Appellate counsel was not ineffective for failing to raise an unpreserved claim of retaliatory sentencing on direct appeal. Point One is denied.
Point Two
Goodwater argues in his second point on appeal that the motion court clearly erred in denying his Rule 29.15 motion because trial counsel was ineffective for failing to object to the trial court's statements which indicated retaliatory sentencing. Goodwater argues that trial court's comments prior to sentencing showed that there was a direct link between the sentence he received and his exercise of his right to trial. Goodwater argues that trial counsel's failure to object was not a reasonable trial strategy and resulted in Goodwater receiving a longer sentence.
Goodwater's trial counsel testified at the evidentiary hearing that he did not know why he did or did not object to the statements. The record does not indicate that trial counsel had a strategic reason for failing to object. However, the record does not demonstrate that Goodwater was prejudiced by trial counsel's failure to object as the objection would not have been well taken. Trial counsel testified that after being read the trial court's comments from the transcript that he believed the trial court was expressing its disgust at what the judge himself viewed and therefore the comment was not objectionable. Trial counsel said that he did not personally feel at the time of sentencing that the trial court enhanced punishment because Goodwater had exercised his right to a trial. Trial counsel testified that his perception was informed by his personal knowledge of the trial judge. Trial counsel said that he would have objected if he thought the trial court was improperly considering some factor.
As stated in Point One, the record affirmatively demonstrates that the trial court sentenced Goodwater based upon the disturbing nature of the child pornography, not as a punishment for him refusing to plead guilty. See Supra Point One; Greer ,
Point Three
In Goodwater's third point on appeal, he argues that appellate counsel was ineffective for failing to raise as a claim the sentencing court's automatic aggravation of his possession of child pornography charges to promotion of child pornography charges. Goodwater argues that the trial court made clear that it always considers possession of child pornography to necessarily include the promotion of child pornography. Goodwater argues that the trial court's automatic aggravation of a sentence violates the separation of powers and the requirement of individualized sentencing. Goodwater argues that appellate counsel failed to exercise the customary skill and diligence of a reasonably competent attorney and resulted in denying Goodwater an opportunity for resentencing.
The basis of this claim is that when Goodwater's trial counsel argued at sentencing that these images are not something anyone should have produced, but made the point that Goodwater did not produce the images in question. In response the trial court stated "the problem this Court has is that when someone possesses child pornography, one promotes child pornography. When you possess it,
Once again, this was an unpreserved claim of error which will rarely be determined to be ineffective by appellate counsel. Henningfeld ,
At the evidentiary hearing, appellate counsel testified that she did not recognize the trial court's statements as a claim of error and that such a claim of error would have been novel. Appellate counsel testified that she had not previously seen this type of claim. The statements by the sentencing court were not an aggravation of Goodwater's charges but rather a statement of disagreement with Goodwater's trial counsel's argument for a mitigation of sentence. Trial counsel was attempting to mitigate Goodwater's behavior by making the point that he was not the one who actually forced the children depicted in the images to endure such violence. The trial court was responding by making the point that if no one wanted these disturbing images then the producers would have no market for their materials and would not force these children into such horrible acts. The claim Goodwater now claims appellate counsel should have raised was not obvious. See Tisius v. State ,
Further, Goodwater did not suffer a manifest injustice from appellate counsel failing to raise such a claim on appeal because the sentencing court was merely articulating that it was unpersuaded by trial counsel's argument; i.e. because Goodwater only possessed child pornography his sentence should be mitigated. In an attempt to mitigate his sentence, Goodwater's trial counsel argued that while the images were terrible, Goodwater was not the one who produced or created them so he did not directly hurt these children. In response to Goodwater's argument for a mitigation of sentence, the trial court responded that possessing child pornography results in demand for child pornography, which causes the production of more child pornography to meet that demand. Therefore solely by being a customer of these materials Goodwater was creating a demand for more children to be victimized. The trial court was articulating that it was unpersuaded by trial counsel's argument that because he only possessed child pornography, the crime he was convicted of, his sentence should be mitigated. There is nothing in the record to demonstrate that the trial court believed that possession of child pornography was the same crime as promotion of child pornography in relation to an enhanced sentence. Even if an objection had been raised to the trial court's comments, it would not have been well taken.
The motion court did not err in determining that appellate counsel was not ineffective for failing to raise this unpreserved claim of error on direct appeal. See Tisius ,
Point Four
In Goodwater's fourth point on appeal, he argues that trial counsel was ineffective for failing to object to the trial court for its automatic aggravation of his possession of child pornography charges to
At the evidentiary hearing, trial counsel testified that he was unable to articulate a reason why he did not object to the statements but did not believe that the statements made were objectionable. That alone suggests a strategic reason for failing to make an objection. But even if trial counsel's testimony is construed to mean he did not have a strategic reason for failing to make an objection, the record does not demonstrate that an objection would have been meritorious or that Goodwater was prejudiced by trial counsel's failure to object.
As stated by Point Three supra there is nothing in the record to demonstrate that the trial court believed that the charge of possession of child pornography was the same as the charge of promotion of child pornography resulting in the trial court automatically enhancing his sentence. Goodwater was not prejudiced by trial counsel's failure to object because the trial court did not automatically aggravate Goodwater's charge but instead was responding to trial counsel's argument for mitigation of his sentence. See Johnson ,
Point Five
In Goodwater's fifth point on appeal, he argues that the motion court erred in denying his Rule 29.15 motion because appellate counsel was ineffective for not raising a claim of double jeopardy on direct appeal. Goodwater argues that a unit of prosecution under the version of section 573.037 in effect at the time he committed these offenses was based on each transaction, not each possession. Goodwater argues that each charge was limited by each transaction and there was only evidence of two mass downloads. Therefore, he argues it was a violation of his right against double jeopardy to be charged with 20 offenses rather than two. Goodwater argues that appellate counsel failed to exercise customary skill and diligence of a reasonably competent attorney when she failed to raise double jeopardy as a claim of error and this resulted in denying Goodwater relief on appeal.
"[A] defendant must be tried for the offense as defined by the law that existed at the time of the offense." State v. Pierce ,
1. A person commits the crime of possession of child pornography if such person knowingly or recklessly possess any child pornography of a minor under the age of eighteen or obscene material portraying what appears to be a minor under the age of eighteen.
2. Possession of child pornography is a class C felony unless the person possesses more than twenty still images of child pornography, possesses one motion picture,film, videotape, videotape production, or other moving image of child pornography or has pleaded guilty to or has been found guilty of an offense under this section, in which case it is a class B felony. 4
In State v. Liberty ,
The motion court did not clearly err in denying this claim and Point Five is denied.
Point Six
In Goodwater's sixth point on appeal, he argues that the motion court erred in denying his Rule 29.15 motion because trial counsel was ineffective for not objecting to Goodwater's sentencing on double jeopardy grounds. Goodwater argues that the unit of prosecution under section 573.037 in effect during the time he committed the offenses was based on each transaction, not each possession. Goodwater argues that since it was based on each transaction and there were only two downloads, it was a violation of his rights against double jeopardy to be charged with twenty separate offenses. Goodwater argues that trial counsel failed to exercise the customary skill and diligence of a reasonably competent attorney when he failed to object at sentencing to Goodwater's charges and this resulted in Goodwater being sentenced in violation of his freedom from double jeopardy.
As stated in Point Five, section 573.037.2 describes units of prosecution consistent with Goodwater's convictions. See Supra Point Five. Goodwater was not prejudiced by his trial counsel's failure to object because such an objection would not have been meritorious. See
Point Seven
In his seventh point on appeal, Goodwater argues that the motion court erred in denying is Rule 29.15 motion because the motion court used the wrong standard of review when determining whether his trial counsel was ineffective for not objecting to the State's closing argument.
In its rebuttal closing argument the State stated that Goodwater had "twenty-six months to figure out a way to get back whatever he said. He has had twenty-six months to change what the Detective told you he said to him when he turned that recorder off ... Really? He had two years to try to come up with something that he thought maybe you folks would buy." Goodwater argues that the motion court did not determine if trial counsel's strategy not to object to this argument was reasonable, it only determined that it was trial counsel's strategy to not object during closing argument. Goodwater argues that trial counsel should have objected to the State's comments during closing argument because the argument commented on Goodwater's post-arrest, post-Miranda silence and that the failure to object was not reasonable.
First, we disagree with Goodwater's position that this was in fact a comment on his post-arrest, post-Miranda silence. The testimony from Detective Ryun was that when the pornographic images were found on Goodwater's computer, that Goodwater asked Detective Ryun to turn off the recording device but continued to talk to Detective Ryun. Goodwater told Detective Ryun that he knew that there was child pornography on his computer. Goodwater said that he did not use the pornography for sexual pleasure and that most of the files were downloaded accidentally and he just did not delete them. Goodwater told Detective Ryun that the files could be found stored in a file that he created that was labeled "illegal." However, at trial Goodwater denied making these statements to Detective Ryun and testified that the DVDs and hard drives that contained the child pornography were his but he did not knowingly download child pornography. He denied that he ever told Detective Ryun that he was aware of there being child pornography on the computer mediums found in his home. Goodwater testified that he is a multimedia hoarder, regularly did bulk downloads, and did not feel he could delete or throw away what he had downloaded. The State's rebuttal argument was merely calling into question the credibility of Goodwater's trial testimony when compared to the testimony of Detective Ryun regarding Goodwater's statements at the time of his arrest. The State's argument did not constitute a comment on Goodwater's silence and did not violate any provision of Miranda or its progeny.
Second, while the motion court may not have used the word "reasonable" in this section of its judgment discussing trial counsel's strategy in failing to object to this closing argument, the court did provide the proper standard of review for this claim within the judgment. In the section of the judgment regarding trial counsel's failure to call Goodwater's wife as a witness, the motion court said it was a reasonable trial strategy by trial counsel not to do so. Trial counsel testified that not objecting during closing argument was one of his trial strategies as to avoid irritating
In addition, irrespective of the strategy in failing to object to this argument, such an objection would not have been meritorious. Barton v. State,
Conclusion
The motion court did not clearly err in overruling Goodwater's Rule 29.15 motion for post-conviction relief. The judgment is affirmed.
All concur
Notes
Statutory references are to RSMo. (2000) as amended through January 2010.
The statute Goodwater was charged under has been subsequently amended. However, our analysis is limited to the statute in effect at the time of offense. See State v. Pierce ,