Tоmmy R. Yarberry (“Yarberry”) appeals the motion court’s denial of his Rule 24.035
Factual and Procedural Background
On August 27, 2009, Yarberry was charged as a prior and persistent offender with two counts of the class C felony of domestic assault in thе second degree, violations of section 565.073, and two counts of the unclassified felony of armed criminal action, violations of section 571.015.
On October 23, 2009, a guilty plea hearing was held and Yarberry pled guilty pursuant to a plea agreement.
On April 27, 2010, Yarberry filed his pro se Rule 24.035 mоtion. He was thereafter appointed counsel by the motion court, and his appointed counsel filed an “AMENDED MOTION UNDER RULE 24.035.” Among the claims raised in this motion were allegations that Yarberry’s plea counsel was ineffective for failing to properly investigate the charges against Yarberry, for failing tо review discovery and other documents with Yarberry, for advising him that he could be convicted solely on the facts in the police report alone, and for informing him that his spouse was definitely going to testify against him at trial.
On May 19, 2011, an evidentiary hearing was héld on this motion. Counsel for Yar-berry, Larry Tyrrell (“Tyrrell”), testified hе did not tell Yarberry he could be convicted solely on the basis of the police reports, and he recalled he told him that “if the witnesses testified as the police reports indicated that they would, he would have had a hard time defending his case.” He related it was his understanding the victim in Yarberry’s сase was available and willing to testify and he “had no doubt that [she] would testify because that’s been the protocol here in Greene County.... They just go get them if they don’t come.”
Stephanie Wan (“Wan”), the State’s prosecutor, testified she was familiar with Yarberry’s spouse because she was alsо a special prosecutor with a local court program and Yarberry’s spouse was enrolled in that program. She related she subpoenaed Yarberry’s spouse to testify and even personally spoke with her, as well as with her probation officer, about appearing in сourt for Yarberry’s case. She stated she did not recall Yarberry’s spouse “ever coming and talking to [her] and telling [her] she didn’t want to testify!,]” nor did she ever get any indication that she did not. intend to testify. Wan further testified that in the event Yarberry’s spouse had indicated an unwillingness to testify, she would still have proceeded with the case as it is her “policy [not to] dismiss cases just because people tell [her] they don’t want to testify.” Additionally, Wan stated that if she had been unable to locate Yarberry’s spouse, she would have sent an investigator to locate her and she would have subpoenaed her аgain.
Yarberry’s spouse testified she was never contacted by plea counsel about testifying in Yarberry’s criminal case and she did not rеcall receiving a summons or subpoena from the State. She went on to testify she was “not for sure” if she was assaulted by Yarberry on the date in question because her drug use at the time made her recollection “kind of blurry.” She also related she would not voluntarily testify against Yarberry if she had been cаlled to testify even if under a subpoena. At the close of the evidentiary hearing, the motion court ruled from the bench that “there was not ineffective assistance of counsel” and Yarberry was not entitled to prevail on his Rule 24.035 motion. In its “ORDER DENYING AMENDED MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE AND JUDGMENT,” the motion court relied on the testimony of Tyrrell and Wan in its dеtermination that Yarberry’s plea was not involuntarily made as it related to the potential testimony of his spouse and any assertions relating to the police reports. Accordingly, the motion court denied Yar-berry’s request for relief. This appeal followed.
The issues presented for our determination are:
1. Did the motion court err in denying Yarberry’s claims in his Rule 24.035 motion that he received ineffective assistance of counsel as a result of his plea counsel’s failure to investigate?
2. Was there error in the motion court’s denial of his Rule 24.035 motion because his post-conviction counsel omitted certain claims from the amended motion and failed to raise all potential claims?
Standard of Review
Our review of the denial of a post-conviction motion under Rule 24.035 is limited to a determination of whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 24.035(k); Chrisman v. State,
Where, as here, a defendant pleads guilty pursuant to a plea agreement, the defendant ‘“waive[s] any claim that counsel was ineffective except to the extent that the conduct affected the volun-tariness and knowledge with which the plea was made.’” Welch v. State,
To prevail on a claim of ineffective assistance of counsel, a movant must show counsel’s representation fell below an objective standard of reasonableness and that, as a result, movant was prejudiced. Id. at 206; Strickland v. Washington,
Point I: Ineffective Assistance of Counsel for Failure tо Investigate
In his first point relied on, Yarberry asserts the motion court clearly erred in denying his Rule 24.035 motion relating to his claim of ineffective assistance of plea counsel because “plea counsel failed to investigate the facts and law of the case before incorreсtly advising [him] that he could be convicted by the police reports alone, and incorrectly advising him that [his wife] was planning on testifying against him at trial....” Yarberry maintains he later “discovered that counsel’s advice was factually and legally incorrect, and counsel’s ineffectiveness prejudiced [him] by rendering his guilty pleas involuntary and unknowing ...,” and but for this “incorrect advice” from counsel he “would have chosen to exercise his right to a trial.”
Analysis
When a movant claims counsel failed to adequately investigate a case, this court considers whether counsel “fulfilled his obligation to either conduсt a reasonable investigation or to make a reasonable decision that a particular investigation was unnecessary.” Hill v. State,
Likewise, Yarberry’s contention that Tyrrell told him he could be convicted based on the pоlice reports alone is also refuted by the record. Tyrrell, an experienced criminal defense attorney, testified he told Yarberry “if the witnesses testified as the police reports indicated that they would, he would have had a hard time defending his case.” This is different than Yarberry’s assertion thаt Tyrrell “[gave] him the impression that if it went to trial, the police reports alone would be enough to convict [him] ... [.] ” Again, we defer to the credibility determinations made by the motion court. Id. It is clear in the present matter, that Tyrrell fulfilled his obligations to Yarberry when it came to investigating the case and in mаking reasonable decisions relating thereto. See Hill,
Point II: Ineffective Assistance of Post-Conviction Counsel for Failing to Raise Claims in the Amended Motion
In his second point relied on, Yarberry maintains the motion court clearly erred in denying his request for post-conviction relief in that the record shows he received ineffective assistance from his post-conviction counsel. He asserts post-conviction counsel “failed in her duties ... to include all known claims of error in the amended motion” including at least one claim of error asserted by Yarberry in his pro se motion. He argues that he was prejudiced by her actions “because [her] failure to raise all claims known to him prevented the motion court from reviewing [plea] counsel's] ineffectiveness and a serious constitutional error that is apparent from the record.”
Analysis
Yarberry acknowledges in his brief that this claim was clearly not raised in his motions filed with the motion court. He asserts that he “is not seeking plain error review, and recognizes these claims are unreviewable.” With that being said, he then goes on to acknowledge “courts have consistently held that claims of ineffective assistance of post-conviction counsel are categorically unreviewable[,]” yet he urges that the present case warrants such a review due to the Supreme Court’s
The order of the motion court is affirmed.
Notes
. All rule references are to Missouri Court Rules (2011).
. All statutory references are to RSMo 2000.
.The terms of the plea agreement were such that in exchange for Yarberry’s guilty pleas on the two domestic assault charges, the State would dismiss the armed criminal action chargеs, as well as a separate case filed
. We note Yarberry’s first point relied on comes close to being improperly multifarious in that he argues not only that counsel failed to investigate and gave "incorrect advice” but that he did so in relation to two separate matters. "Points relied on containing multifarious claims violate Rule 84.04(d) and ordinarily are subject to dismissal.” Day v. State,