Tracy Greer (“Movant”), appeals from the denial of his Rule 29.15 post-conviction relief motion without an evidentiary hearing. In State v. Greer,
I. BACKGROUND
A jury convicted Movant of three counts of assault in the first degree, in violation of Section 565.050, RSMo 2000; three counts of armed criminal action, in violation of Section 571.015, RSMo 2000; six counts of endangering a corrections employee, in violation of Section 565.085, RSMo Supp. 2006; and one count of possession of a weapon in a correctional facility, in violation of Section 217.360, RSMo Supp.2006. The trial court sentenced Movant as a prior and persistent offender to a total of twenty-five (25) years’ imprisonment. On appeal, this Court remanded the case to correct the sentences on the six counts of endangering a corrections employee, but affirmed the judgment in all other respects. Greer,
Movant filed a timely motion for post-conviction relief pursuant to Rule 29.15. Counsel was appointed to represent Mov-ant, and an amended motion was filed. The amended motion alleged, for various reasons, Movant was provided with ineffective assistance by his Trial Counsel. The amended motion was denied without an evidentiary hearing and the motion court issued its Findings of Fact, Conclusions of Law and Order.
This appeal now follows.
Movant advances two points on appeal. In his first point, Movant argues the motion court erred in denying him an eviden-tiary hearing on his Rule 29.15 postconviction relief claim, in that Trial Counsel was ineffective for failing to object to certain remarks proffered during the State’s closing argument, in violation of the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution. Specifically, Movant contends Trial Counsel was ineffective for failing to object and request a mistrial after the State referred to Movant’s physical appearance as “Taliban-looking.”
Next, Movant asserts the motion court erred in denying him an evidentiary hearing on his Rule 29.15 post-conviction relief claim, in that Trial Counsel was ineffective for failing to object to the sentencing court’s alleged consideration of Movant’s exercise of his constitutional right to proceed to trial when imposing sentence, in violation of the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution.
Standard of Review
Appellate review of a denial of a 29.15 motion for post-conviction relief is limited to determine whether the motion court’s “findings of fact and conclusions of law are clearly erroneous.” Worthington v. State,
Pursuant to Rule 29.15, an eviden-tiary hearing is not required “[i]f the court shall determine the motion and the files and records of the case conclusively show that the movant is entitled to no relieff.]” Rule 29.15(h). Accordingly, the motion court is only required to grant an eviden-tiary hearing on a Rule 29.15 motion for post-conviction relief if the movant satisfies three requirements: (1) the movant must allege facts, not conclusions, warranting relief; (2) the facts alleged must raise matters not refuted by the files and records in the case; and (3) the matters complained of must have resulted in prejudice to the movant. Matthews v. State,
When, as in the present case, the requested evidentiary hearing involves a claim of ineffective assistance of counsel, the movant must show by a preponderance of the evidence both that the counsel’s performance failed to conform to the degree of skill, care and diligence of a reasonably competent attorney and that such deficiency prejudiced the movant. Dickerson v. State,
Analysis
Point I — Closing Argument
In his first point on appeal, Movant alleges the motion court erred in denying him an evidentiary hearing on his Rule 29.15 post-conviction relief claim because he received ineffective assistance of counsel. Specifically, Movant contends Trial Counsel was ineffective for failing to object and request a mistrial after the State referred to Movant’s appearance as Taliban-looking during the State’s closing rebuttal argument, because that statement was improper and likely to inflame and excite the prejudices of the jury. But for Trial Counsel’s failure to object during closing argument, Movant asserts there is a reasonable probability the outcome of his trial would have been different.
Trial counsel is granted vast latitude and judgment about whether or when to make objections. Helmig v. State,
During the State’s closing rebuttal argument, the prosecutor stated to the jury the following:
Now, it’s really sad when electronic equipment fails. The camera didn’t work. There it is. We laid it out there for you. It didn’t work, okay. Things don’t work sometimes. You don’t always jump to some mad conspiracy when things don’t work, you know, when it’s a corrections officer.... What do you want them to do? “The camera doesn’t work. Hey, I guess we’ll leave these two heads wrapped up, Taliban looking guys, in their cells with these assortment of shanks and let them sort it out.” Huh? Is that what they should have done. “The camera doesn’t work; nobody will believe us. Let’s just leave them in there.” Are you kidding me? Are you kidding me? It didn’t work.
In order to understand the import of the State’s rebuttal argument, it is important for this Court to review the entire record, not just an isolated segment. State v. McFadden,
Again, Ladies and Gentlemen, basically this case amounts to the lieutenant and the captain wanting you to take their word for something that a video tape would have more than likely contradicted. Doesn’t make sense to hide something that would back you up. Doesn’t make sense to hide something that would have proven you didn’t use excessive force. That’s exactly what happened.
To counter defense counsel’s fabrication insinuation made during closing argument, the State made reference, in their rebuttal closing argument, to Corrections Officer Charles Boone’s (“Boone”) testimony:
Q [Prosecutor]: All right. And, what observation did you make about Tracy Greer?
A [by Boone]: Tracey Greer — they was [sic] ready to fight.
Q: What do you mean by that?
A: Because they had their head wrapped in tee-shirts and towels like the Taliban or something; showing us weapons that they had made.
“The State always has ‘considerable leeway’ to make retaliatory arguments during closing argument, ‘and is permitted to retaliate to an argument made by the defense.’ ” Hardy v. State,
Here, the State’s rebuttal closing argument was proffered to both retaliate against the defense’s argument of fabrication (i.e., can the State’s story be true if there was no videotape?) and was a legitimate inference from the testimony offered during trial. Considered in context, the State’s argument was proper retaliation for defense counsel’s closing argument. See State v. Parker,
Movant relies heavily upon State v. Banks,
We agree and reinforce the holding in Banks. However, the case at bar is inap-posite. First, there was testimony adduced during trial that Movant had his head wrapped in a tee-shirt “like the Taliban.” See, e.g., State v. Bailey,
In this case, the motion court found that Trial Counsel’s failure to object to the above-quoted language of the State’s closing rebuttal argument was reasonable trial strategy and was in atícord with the evidence adduced during trial. We agree. Movant has not overcome the burden that the State’s rebuttal argument caused prejudice or deprived him of his right to a fair trial. Since Defendant raised the issue of the missing videotape, the State was entitled to respond. Moreover, besides the fact that an objection by Trial Counsel would have rightfully been overruled, an objection by Trial Counsel would have only served to highlight the State’s rebuttal closing argument, and would have diverted the jury’s attention away from Defendant’s claim that the State’s witness fabricated the attack. See Barnes v. State,
Furthermore, when considering and reviewing the cumulative evidence of Movant’s guilt, we find the elicited closing rebuttal argument was not prejudicial to Movant’s case and had no effect on the verdict. See State v. Long,
Point I is denied.
Point II — Increase in Sentence
Movant, in his second point on appeal, claims the motion court erred in denying him an evidentiary hearing on his Rule 29.15 post-conviction relief claim because he was provided ineffective assistance of counsel. Specifically, Movant alleges Trial Counsel was ineffective for failing to object to the sentencing court’s alleged consideration of Movant’s exercise of his constitutional right to proceed to trial when imposing sentence. But for Trial Counsel’s' failure to object during sentencing, Movant asserts there is a reasonable prob
When fashioning punishment and a prison sentence for a defendant, the sentencing court has a duty to undertake a “case by case, defendant by defendant,” assessment. State v. Lindsey,
Constitutionally, a court is prohibited from using the sentencing process to punish a defendant who chose to exercise his or her right to proceed to trial. State v. Wright,
The Missouri Court of Appeals, Western District, succinctly stated the appropriate and applicable standard:
In State v. Wright,998 S.W.2d 78 (Mo.App. W.D.1999), we held that “no 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.” Id. at 83 (dismissing and explaining language in State v. Brewster,836 S.W.2d 9 (Mo.App. E.D.1992) which could be mistakenly read to suggest that retaliation requires proof that a trial court solely considered the defendant’s exercise of a constitutional right in sentencing). By defining the standard as “determinative factor,” and not as “solely,” we made clear that the record cannot indicate that a trial court “enhance[d] the Defendant’s sentence in part based on Defendant’s decision to [exercise a constitutional right].” Id. at 84. In other words, if a defendant’s exercise of a constitutional right was an actual factor considered by the sentencing court in imposing sentencing, then the exercise of the right was a “determinative factor” in sentencing, and retaliation has been demonstrated, even if other factors could have been relied on by the trial court to support the same sentence.
Taylor v. State,
No rule or court decision requires the sentencing judge to justify, explain or detail to the defendant the elements taken into account at sentencing. See Section 557.036. When the sentencing judge chooses to explain or justify their reasoning, the result is often confusion among our appellate courts as to what the sen
This case offers no exception to the confusion caused by a sentencing court’s comments. Here, before pronouncing sentence, the sentencing court addressed Movant:
See, here’s the thing. What I’m seeing right now is I’m looking at your parents, and I’m a parent, you know, and they’re dying. You know. And I’m dying. Because I could only imagine to have my son in this situation. This is just heartbreaking. Because here’s the thing: You strike me as a really bright guy, sharp guy, but you remind me of like a ram battering your head against the Grand Coulee Dam trying to bring it down repeatedly. You just bam, bam. You know, you just — you strike out a cause that can never be won with your anger, and just over and over. Your stubbornness is monumental. In the meantime, what happens is you accumulate all this. I mean, this is — this is something, you know, your time in.
Now, on the other hand, I don’t know if I could ever do time. I think I would go crazy if I was confined in a place like the Justice Center. I think I would. I would be bouncing off the walls. And your action along with your accomplice here looks like something just crazy. If you take a step back and look at it from the outside, it looks like the dumbest thing that was ever done by two guys that I’ve ever seen. You know? Trying to — I don’t know what you were trying to accomplish, but according to you, it never happened. It was fabricated. My problem is, there’s a lot of evidence in the case.
So here’s my other problem. The pretrial recommendation in this case was 20 years. While high, with your record I can see why it was that high. Now, your attorney wants me to give you 12 years. See, there a problem with that. The problem that I have is, if I go and give you 12 years, or even 20 years, you’re going to go back to the Justice Center and say, “I got less than the [recommendation], or I got the [recommendation], and I went to trial. ” And we’re going to have a problem over here, because then more guys are going to be acting up like you are. There’s going to be chaos. It’s going to be out of control, and we’re going to get more of these charges, and everyone’s going to go to trial, because they’re going to think they’re going to get less than the recommended sentence or the same sentence. That’s my problem. Okay? I’ll tell you that, (emphasis added)
The other thing is, I watched the trial, and I looked at all the evidence at the same time when the jury was. And while I think that at your base, at your core, I really do believe that you are a good guy, I do, I’m going to have to give you what they’re recommending. Okay?
Movant argues the above quoted language demonstrates the sentencing court considered inappropriate factors — specifically, Movant’s exercise of his constitutional right to a jury trial — in imposing Movant’s sentence. Conversely, the State contends Movant’s decision to proceed to trial was not the “determinative factor,” because the sentencing court relied upon and considered other appropriate factors
This Court finds the sentencing judge’s comments could conceivably be construed to mean that the Movant’s rejection of a plea bargain caused him to receive a more severe sentence. The comments conveyed by the sentencing judge seem to consider two factors in rejecting Movant’s requested 12-year sentence and imposing the State’s post-trial 25-year sentence recommendation:
In support of its argument, the State relies on State v. Collins,
... I think for someone to be eligible for a program like that they have to know that they committed the crime that they’ve been convicted of, they have to have remorse. All right? They have to feel some type of pain for the pain that they have inflicted on these two victims here; and, I don’t see that from you. All right.
Now, I understand why you’re doing it. You went to trial and you want to maintain your innocence to the bitter end.... For a lot of reasons you don’t want to admit to me you did this; and, that’s the decision that you have made. All right. And, that’s fine. Okay. But don’t expect something from me if you’re not willing to give me something, okay, No. 1.
Id. at 746. Under those facts, this Court found that the comments did not support a finding that the sentencing court improperly punished defendant for exercising his right to a trial, because the comments indicated the sentencing court only considered defendant’s lack of remorse and failure to take responsibility for his actions, both appropriate considerations. Id. at 747.
While we do not contest the result of Collins, the “solely” language used by that court is inaccurate. Rather, the correct analysis and applicable standard, as held by Taylor, supra, is “if a defendant’s exercise of a constitutional right was an actual factor considered by the sentencing court in imposing sentencing, then the exercise of the right was a ‘determinative factor’ in sentencing, and retaliation has been demonstrated, even if other factors could have been relied on by the trial court to support the same sentence.” Taylor,
The State also argues, citing to Brewster, that a sentencing judge is entitled to fashion a sentence in order to deter others from committing the crime and protect possible victims. Brewster,
In electing to offer comments immediately prior to pronouncing sentence, the sentencing court, in this case, failed to clearly articulate the basis for its decision, leaving doubt regarding the factors considered by the court in imposing Movant’s sentence. Accordingly, once 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. Thurston v. State,
The comments made by the sentencing judge evidence the possibility of improper consideration of Movant’s decision to exercise his constitutional right to proceed to trial. Accordingly, Movant’s Rule 29.15 motion has alleged facts that would, if proven, establish the sentencing court im-permissibly considered Movant’s exercise of his constitutional right to proceed to trial when imposing sentence. We do not find that the evidence “conclusively show[s] that the movant is entitled to no relief[.]” Rule 29.15(h) (emphasis added). Therefore, the record does not conclusively show that Movant’s Trial Counsel was not ineffective for failing to object at the sentencing hearing and Movant is entitled to an evidentiary hearing on this claim.
Point II is granted.
III. CONCLUSION
We reverse the motion court’s judgment insofar as it denies Movant’s claim that counsel was ineffective for failing to object to the sentencing court’s perceived consideration of Movant’s exercise of his right to proceed to trial and remand for an eviden-tiary hearing on that allegation. In all other respects, the judgment is affirmed.
Notes
. As aptly illustrated by Movant, the State advances contradictory arguments. On the one hand, the State argues the trial court “considered other factors besides [Movant’s] exercise of his right to trial[,]” (emphasis added) thereby insinuating the sentencing court relied in part upon Movant's decision to proceed to trial. Clearly, this would be in violation of Movant’s constitutional rights. See Taylor, supra. On the other hand, the State contends Movant’s exercise of his constitutional right to a jury trial was not the "determinative factor.”
. The State's pretrial recommendation requested a twenty (20) year sentence, whereas, the State’s post-trial recommendation requested a twenty-five (25) year sentence.