author: JAMES EDWARD WELSH, Judge.

text:
    Mark R. FINLEY, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71234.
    Missouri Court of Appeals, Western District.
    July 13, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 31, 2010.
    Application for Transfer Denied Oct. 26, 2010.

      Frederick J. Ernst, Kansas City, MO, for Appellant.
    John W. Grantham, Jefferson City, MO, for Respondent.
    Before THOMAS H. NEWTON, C.J., JAMES EDWARD WELSH, and KAREN KING MITCHELL, JJ.
   JAMES EDWARD WELSH, Judge.

Mark R. Finley appeals from the circuit court’s judgment denying his Rule 24.035 postconviction relief motion without an evi-dentiary hearing. Finley asserts that the circuit court erred in accepting his guilty plea to the charges of attempted forcible rape, armed criminal action, and burglary in the first degree because no factual bases existed for the plea. We disagree and affirm the circuit court’s judgment.

In overruling Finley’s challenges to the sufficiency of the factual bases on the three charges, the circuit court found that Finley’s testimony at the plea hearing provided a sufficient factual basis to support his conviction for attempted forcible rape because Finley admitted that he entered the victim’s apartment, lay on top of her, and held a box cutter to her throat. The court found that Finley’s conduct toward the victim constituted more than a mere threat of forcible rape. The court also noted that, according to the victim, Finley kept trying to kiss her and threatened her whenever she attempted to move out from underneath him. The court found that Finley’s admission at the hearing together with the statement by the victim was sufficient to support a finding that Finley had taken a substantial step toward the commission of forcible rape.

The circuit court also concluded that, because Finley admitted threatening the victim with a box cutter while he attempted to rape her, the record established a sufficient factual basis for armed criminal action. Further, the court found that Finley’s admission that he entered the victim’s apartment without her permission for the purpose of committing forcible rape to be sufficient to establish a factual basis for first-degree burglary.

Our review of the circuit court’s ruling on a Rule 24.035 motion is limited to determining whether or not its findings and conclusions are clearly erroneous. Rule 24.0S5(k). To be entitled to an evi-dentiary hearing on a motion for post-conviction relief: (1) the movant must allege facts — not conclusions — which, if true, warrant relief; (2) the facts alleged must establish that the movant’s case was prejudiced; and (3) the facts must not be refuted by the record. Coates v. State, 939 S.W.2d 912, 914 (Mo. banc 1997). The circuit court may deny an evidentiary hearing if any of these elements is missing. Wedlow v. State, 841 S.W.2d 214, 216 (Mo.App.1992).

Finley argues that the factual basis for his guilty plea to attempted forcible rape was insufficient because the State never established that he took a substantial step toward the commission of a forcible rape. Relying on this argument, Finley also contends that the factual basis for armed criminal action, which was predicated on the attempted forcible rape, was also insufficient. Further, he asserts that, because there was insufficient proof of a substantial step toward the commission of a forcible rape, there was an insufficient factual basis to support his guilty plea to burglary because he was alleged to have entered the victim’s home for the purpose of committing a forcible rape. We disagree.

“A factual basis for a guilty plea is necessary to ensure that the guilty plea was intelligently and voluntarily entered, thereby satisfying due process requirements.” State v. Henry, 88 S.W.3d 451, 457 (Mo.App.2002). Rule 24.02(e) says, “The court shall not enter a judgment upon a plea of guilty unless it determines that there is a factual basis for the plea.” A “factual basis” for a guilty plea “is established where the information clearly charges the defendant with all elements of the crime, the nature of the charge is explained to the defendant, and the defendant admits guilt.” Ivy v. State, 81 S.W.3d 199, 202 (Mo.App.2002). As long as a mov-ant understands “the nature of the charges against him, trial courts are not required to explain every element of the crime.” Id. A movant is “ ‘not required to admit or to recite the facts constituting the offense in a guilty plea proceeding, so long as a factual basis for the plea exists.’ ” Johnson v. State, 172 S.W.3d 831, 835 (Mo.App.2005) (citation omitted). “An appellate court’s focus is on whether the defendant understood the nature of the charge against him and not on whether a particular ritual was followed or every detail was explained.” Wagoner v. State, 240 S.W.3d 159, 165 (Mo.App.2007).

The State charged that Finley committed attempted forcible rape when he “climbed on top of [the victim], held a box cutter type knife to her throat and kissed her cheek, and such conduct was a substantial step toward the commission of forcible rape, and was done for the purpose of committing such forcible rape.” “A person is guilty of attempt to commit an offense when, with the purpose of committing the offense, he does any act which is a substantial step towards the commission of the offense.” § 564.011.1, RSMo 2000. “A ‘substantial step’ is conduct that is strongly corroborative of the firmness of the actor’s purpose to complete the commission of the offense.” Fee v. State, 283 S.W.3d 296, 299 (Mo.App.2009) (citing § 564.011). “‘A person “acts purposely” or with purpose, with respect to his conduct or to a result thereof when it is his conscious object to engage in that conduct or to cause that result.’ ” Id. (quoting § 562.016, RSMo 2000). “[A] mere threat with the ability to carry out that threat does not necessarily constitute an attempt to commit a crime. Instead, there must be strongly corroborating evidence that it was the defendant’s conscious object to carry out the threat.” State ex rel. Verweire v. Moore, 211 S.W.3d 89, 93 (Mo. banc 2006). “A defendant’s purpose is rarely susceptible to direct proof.” State v. McFerron, 890 S.W.2d 764, 767 (Mo.App.1995). As a result, purpose will frequently be established by circumstantial evidence. See State v. Rafaeli, 905 S.W.2d 516, 518 (Mo.App.1995).

“A person commits the crime of forcible rape if such person has sexual intercourse with another by the use of forcible compulsion.” § 566.030, RSMo Cum.Supp.2007. Section 556.061 provides in relevant part that “forcible compulsion” includes “[a] threat, express or implied, that places a person in reasonable fear of death, serious physical injury or kidnapping of such person or another person[.]” § 556.061(12)(b), RSMo 2000.

In this case, the circuit court did all that was required to establish a sufficient factual basis for Finley’s guilty plea to attempted forcible rape. First, the indictment, which contained all of the elements of attempted forcible rape, was read to Finley. Second, Finley stated in his own words that he entered into the victim’s home at night without her permission and that he lay on top of her, placed a knife to her throat, and attempted to rape her. The victim reported that Finley entered her home while she was sleeping and repeatedly instructed her to kiss him while he lay on top of her. Third, Finley admitted that he was guilty.

Finley argues, however, that the record in this case is insufficient to sustain a conviction of attempted rape because there was no showing that he took a substantial step toward engaging in forcible sexual intercourse. He asserts that nothing exists in the record to suggest that he intended to engage in sexual intercourse with the victim or that he understood that this is what he was pleading to when he pled guilty. He claims that the record does not indicate that he understood what constituted rape.

The record established that Finley was twenty-one years old, had a twelfth grade education, and graduated from high school. He also admitted that he reads, writes, and understands the English language. Finley acknowledged that he was not suffering from any mental disease or defect and that he did not have any mental condition that would make it difficult for him to concentrate and understand. He also admitted that his attorneys had explained the charges against him. In pleading guilty, Finley admitted that he attempted to rape the victim.

Although, as we said above, a defendant’s purpose is rarely susceptible to direct proof, here we have Finley directly testifying as to his purpose and intention by informing the court that “[o]n November 3rd, around three o’clock in the morning, I entered into the victim’s apartment and laid on top of her and held a box cutter to her throat, and I attempted to rape her.” As to Finley’s purpose and intent, evidence does not come any clearer than this, and to say it is a sufficient factual basis for the crime of attempted forcible rape is to demonstrate a knack for understatement. The fact that Finley now would like to say that he did not understand what he was saying and that his plea was therefore not made knowingly is belied by the record and common sense.

We find that the term “rape” is a commonly-known, layman term that is generally understood to mean non-consensual sexual intercourse. Indeed, courts from other jurisdictions have so concluded. Commonwealth v. Sherman, 451 Mass. 332, 885 N.E.2d 122, 127 (2008); People v. Lankford, 819 P.2d 520, 521 (Colo.App.1991). Finley, therefore, admitted to attempting to do an act which has a widely-known, common meaning of non-consensual sexual intercourse. Where the allegations contained in the counts are “simple, specific and sufficient to inform the defendant in terms that a layman would understand what acts he was charged with committing,” then a factual basis is established. Hoskin v. State, 863 S.W.2d 637, 639 (Mo.App.1993); see also Johnson v. State, 115 S.W.3d 422, 426 (Mo.App.2003) (stating that the term “serious physical injury” is “simple, specific and sufficient to inform the defendant in terms that a layman would understand what acts he was charged with committing”), and Kennell v. State, 209 S.W.3d 504, 508 (Mo.App.2006) (“[T]he term ‘deadly weapon’ used in the armed criminal action charge would be easily understood by most people to mean a gun, knife, or other weapon readily capable of causing death”). The circuit court was not required to explain every element of the crime to Finley, and given the common meaning of the term “rape,” we cannot say that Finley did not understand the nature of the charge against him. Ivy, 81 S.W.3d at 202.

Finley’s argument is similar to an argument raised in State v. Thomas, 670 S.W.2d 138, 139 (Mo.App.1984), where the defendant challenged the sufficiency of the evidence to support his conviction for attempted forcible rape because he did not attempt penetration. This court’s Southern District concluded that the defendant took a substantial step toward the commission of the offense of rape by entering the victim’s home, using a knife to threaten the victim, and by throwing the victim on the bed. Id. Likewise, in this case, Finley’s acts of entering the victim’s home, lying on top of the victim, and putting a knife to her throat, conjoined with his admission at the plea hearing that he intended to rape the victim, establish that he took substantial steps toward the commission of forcible rape.

As this court’s Southern District said in Chipman v. State, 274 S.W.3d 468, 472 (Mo.App.2008):

[A] movant’s post-conviction constitutional challenge to the knowingness and voluntariness of his or her guilty plea based upon an insufficient factual basis must not only prove the insufficiency of a factual basis on the record before the plea court, i.e., the lack of compliance with Rule 24.02(e), but also must demonstrate that such failure deprived him or her of the actual knowledge of the factual basis for the charge, thereby rendering his or her plea unknowing and involuntary and, thus, unconstitutional.

Because the term “rape” is a commonly-known, layman term, Finley failed to demonstrate that he was deprived of the actual knowledge of the factual basis for the attempted forcible rape charge.

Finley’s attack on the factual bases to support the armed criminal action and first-degree burglary counts is predicated upon the attempted forcible rape. He argues that, because he was charged with armed criminal action predicated on a charge of attempted forcible rape and first-degree burglary based upon his entering the victim’s home for the purpose of committing a forcible rape, if there was an insufficient factual basis to support the forcible rape plea, then his plea to armed criminal action and first-degree burglary was also infirm. Finley has no independent attack on the factual bases to the armed criminal action and first-degree burglary counts apart from his attack on the attempted forcible rape count. Because there was a sufficient factual basis to support his plea to the attempted forcible rape count, his claim as to the armed criminal action and first-degree burglary-counts is without merit. The record demonstrates that Finley was adequately advised of the nature of armed criminal action and first-degree burglary and that his guilty plea to those charges was knowing and voluntary.

The circuit court’s judgment denying Finley’s Rule 24.035 postconviction relief motion without an evidentiary hearing was not clearly erroneous. We, therefore, affirm the circuit court’s judgment.

All concur.

      . The circuit court granted the motion in part and set aside and dismissed one count of armed criminal action arising out of the burglary charge.

      . The circuit court informed Finley:
      In Count I it is charged that on or about November 3rd, 2007, you climbed on top of [the victim] and that you held a box cutter type knife to her throat and kissed her cheek and that that conduct was a substantial step toward the commission of the crime of forcible rape and was done for the purpose of committing forcible rape.”

      . Specifically, Finley said: "On November 3rd, around three o'clock in the morning, I entered into the victim’s apartment and laid on top of her and held a box cutter to her throat, and I attempted to rape her.”

      .Indeed, the circuit court found on the record that Finley seemed to be "very clearheaded” and "very direct” and that "nothing in the way [he] answered the questions leads [the court] to believe that [Finley was] having any difficulty” at the guilty plea hearing. Finley acknowledged at the hearing that he did not disagree with these findings.

      . We acknowledge that in State v. Ogle, 627 S.W.2d 73, 76 (Mo.App.1981), this court's Southern District found that the term “forcible compulsion,” as used in the context of rape, is not a term that has a commonly understood meaning and must be defined in a jury instruction. Finley does not assert that the factual basis for the plea was insufficient because the State did not establish he attempted to rape the victim by forcible compulsion.

      . In Hoskin, the circuit court read the defendant the charges in substantially the same language as contained in the information, and the defendant admitted that he did the acts contained in the charges. Hoskin, 863 S.W.2d at 638. The Hoskin court held: “The allegations contained in the kidnapping, rape, and stealing a motor vehicle counts were simple, specific and sufficient to inform the defendant in terms that a layman would understand what acts he was charged with committing, and the commission of which constituted the crimes charged.” Id. at 639.

      .The facts in Thomas also established that the defendant told the victim that he was going to "eat” and "fuck” her and that he ripped the victim’s shirt open with the knife and his hands. Thomas, 670 S.W.2d at 139. The Thomas court, however, did not rely on this evidence in concluding that the evidence was sufficient to establish that the defendant took a substantial step toward the commission of the offense of attempted rape. The Thomas court merely said: "[The defendant] took a substantial step toward the commission of the offense by entering the home, using a knife to threaten the girl, and by throwing her on the bed.” Id.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Brenda L. SIECKMANN, Respondent, v. CRUM & FORSTER SPECIALTY INSURANCE COMPANY, Appellant.
    No. ED 93459.
    Missouri Court of Appeals, Eastern District, Division Two.
    July 13, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Sept. 15, 2010.
    Application for Transfer Denied Oct. 26, 2010.
    Philip C. Graham, Clayton, MO, for Appellant.
    Maurice B. Graham, St. Louis, MO, for Respondent.

      Before SHERRI B. SULLIVAN, P.J. and ROBERT G. DOWD, JR. and PATRICIA L. COHEN, JJ.
   ORDER

PER CURIAM.

Crum & Forster Specialty Insurance Company (“C & F”) appeals from the grant of summary judgment in favor of Brenda L. Sieckmann (“Sieckmann”). C & F alleges six points on appeal. Most of C & F’s points have to do with whether Interstate Brands Corporation (“IBC”) was an additional insured under the C&F policy.

We have reviewed the briefs of the parties and the record on appeal and find the claims of error to be without merit. An opinion would have no precedential value nor serve any jurisprudential purpose. The parties have been furnished with a memorandum for their information only, setting forth the reasons for this order pursuant to Rule 84.16(b).


author: PER CURIAM:

text:
    Cesar M. TORREZ, Appellant, v. MIDWEST BLOCK & BRICK, INC., Respondent.
    No. WD 71632.
    Missouri Court of Appeals, Western District.
    July 20, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 31, 2010.
    Application for Transfer Denied Oct. 26, 2010.
    Brianne Niemann, for Appellant.
    Brad Letterman, for Respondent.
    Before Division Three: VICTOR C. HOWARD, Presiding Judge, THOMAS H. NEWTON, Judge and GARY D. WITT, Judge.
   ORDER

PER CURIAM:

Cesar Torrez appeals the trial court’s grant of summary judgment in favor of his employer, Midwest Block & Brick, Inc., on Mr. Torrez’s negligent supervision claim. On appeal, Mr. Torrez claims that the trial court erred in granting summary judgment because genuine issues of material fact exist as to whether his employer failed to exercise reasonable care in supervising its employees at a company party. Because a published opinion would have no precedential value, a memorandum has been provided to the parties.

The judgment is affirmed. Rule 84.16(b).


author: GARY D. WITT, Judge.

text:
    Frederick WILLS, Appellant, v. STATE of Missouri, Respondent.
    No. WD 71271.
    Missouri Court of Appeals, Western District.
    July 20, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 31, 2010.
    Application for Transfer Denied Oct. 26, 2010.

      Alexa I. Pearson, Columbia, MO, for appellant.
    Shaun J. Mackelprang and Jaime P. Rasmussen, Jefferson City, MO, for respondent.
    Before Division Three: VICTOR C. HOWARD, Presiding Judge, THOMAS H. NEWTON, Judge and GARY D. WITT, Judge.
   GARY D. WITT, Judge.

Frederick Wills appeals the circuit court’s judgment denying his motion for post-conviction relief. After being charged in Boone County Circuit Court with one count of kidnapping (Section 565.110), one count of forcible sodomy (Section 566.060), and one count of forcible rape (Section 566.030), Wills reached a plea agreement with the State where, in exchange for his guilty plea to the rape charge, the State agreed to dismiss the other two counts. Pursuant to this agreement, Wills entered into an “open plea” on the rape charge and was subsequently sentenced by the circuit court to twenty five years in the Missouri Department of Corrections. On appeal, Wills alleges that his guilty plea was not knowingly and intelligently entered into for a variety of reasons, including the fact that he received ineffective assistance of plea counsel.

We affirm.

Factual Background

On December 5, 2006, Wills pled guilty to Count II of the State’s substitute Information, which charged him with the crime of forcible rape. At the guilty plea hearing, Wills acknowledged that he understood that he was entering into an open plea of guilt, which meant that the circuit court would have sole discretion to sentence him anywhere from ten to thirty years or life in prison. Having evidenced a full understanding of these terms on the record, Wills then pled guilty to forcibly raping the victim.

On February 5, 2007, the circuit court held a sentencing hearing, and sentenced Wills to twenty five years in the Missouri Department of Corrections based on his guilty plea. Further details regarding the circumstances surrounding Wills’s guilty plea and sentencing will be outlined as relevant in the analysis section herein.

On August 11, 2008, Wills filed a pro se motion for post-conviction relief, which was subsequently amended by counsel. An ev-identiary hearing was held on the motion on May 1, 2009.

On June 19, 2009, the motion court issued its Findings of Fact, Conclusions of Law, and Judgment, which denied Wills’s post-conviction relief motion.

Standard of Review

In determining whether the motion court erred in denying Wills’s motion for post-conviction relief, our review is “limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous.” Rule 29.15(k). Error is clear when the record definitely and firmly indicates that the circuit court made a mistake. State v. Johnson, 901 S.W.2d 60, 62 (Mo. banc 1995).

Analysis

In Point One, Wills argues that the circuit court erred in denying his motion for post-conviction relief in light of the fact that his guilty plea “was not knowingly, intelligently, or voluntarily entered because he entered his plea of guilt during a time when he was being deprived of long-prescribed psychiatric medications by authorities at the Boone County Jail, and this deprivation caused him to suffer from symptoms related to his diagnosis of Paranoid Schizophrenia and rendered him unable to understand the proceedings against him or to make rational decisions.”

“A 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 of the act.” Roberts v. State, 276 S.W.3d 833, 836 (Mo. banc 2009). “Due process requires that a person who wishes to plead guilty must be competent to do so and must enter the plea knowingly and voluntarily.” State v. Shafer, 969 S.W.2d 719, 731 (Mo. banc 1998).

The Supreme Court of Missouri outlined the following applicable legal standards in Wilson v. State:

To be competent to plead guilty, Wilson had to have a sufficient present ability to consult with his attorneys with a reasonable degree of rational understanding and had to have a rational and factual understanding of the proceedings against him. Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Brown v. State, 485 S.W.2d 424, 429 (Mo.1972); Pulliam v. State, 480 S.W.2d 896, 903 (Mo.1972). Some degree of mental retardation does not automatically render him incapable of entering a voluntary plea of guilty. Id. at 904; State v. Lowe, 442 S.W.2d 525, 529-30 (Mo.1969). Whether Wilson understood the nature of the proceedings against him and had a sufficient present ability to consult with his attorneys in this case was one of the issues properly before the motion court for determination. Martin v. State, 558 S.W.2d 701, 704 (Mo.App.1977).
... A plea may be involuntary either because the accused does not understand the nature of the constitutional protections that he is waiving ... or because he has such an incomplete understanding of the charge that his plea cannot stand as an intelligent admission of guilt. Without adequate notice of the nature of the charge against him, or proof that he in fact understood the charge, the plea cannot be voluntary in this latter sense.

813 S.W.2d 833, 835 (Mo. banc 1991) (quoting Henderson v. Morgan, 426 U.S. 637, 644, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976)).

In rejecting his claim for post-conviction relief, the motion court expressly found that Wills’s testimony that his mental illness made him unable to understand the proceedings against him or make rational decisions “to be not credible.” Specifically, the motion court found the following:

First, counsel testified at the evidentiary hearing that they had meaningful conversations with Movant throughout their representation of him and never felt like he did not understand what they were saying or that he was unable to make rational decisions. Counsel testified that Movant discussed the pros and cons of going to trial and pleading guilty. Second, this court conducted the plea hearing, the sentencing hearing, and the evidentiary hearing and finds that Mov-ant had no difficulty with his ability to reason or understand the proceedings.

J. 5-6.

Simply put, Wills fails to demonstrate that the above findings and conclusions by the motion court were somehow clearly erroneous. Wills argues that his sudden, last minute decision to enter into an open plea of guilt somehow objectively demonstrates that because of his mental illness he did not meaningfully understand the proceedings when he pled guilty. But mentally healthy people make spur of the moment decisions for a variety of reasons, and therefore the fact that he made a swift decision to enter into an open plea of guilt, by itself, is insufficient to demonstrate that he did not knowingly and intelligently plead guilty.

In this Point, Wills relies heavily on his mental health records from Illinois (Exhibit # 5) in an attempt to demonstrate that the motion court erred in accepting his guilty plea in light of the fact that he “has a variety of mental health diagnoses,” including “Paranoid Schizophrenia,” “Post-Traumatic Stress Disorder,” “Intermittent Explosive Disorder,” “Depression,” and “Antisocial Personality Disorder.” (citing to Exhibit 5). Wills notes that his records show that he had been “prescribed Thorazine, Zyprexa, Trazadone, Elavil, Mellaril, Prolixin, and Geodon” for these conditions.

The crux of Wills’s argument is not merely that he had “mental health diagnoses,” but rather that “he was being deprived of long-prescribed psychiatric medications by authorities at the Boone County Jail” causing him “to suffer from symptoms related to his diagnosis of Paranoid Schizophrenia.” However, Wills ignores the fact that, beyond his own self-serving testimony, he produced no competent evidence to prove that he was being deprived of any such medication by the jail, or that he was in fact suffering from the symptoms that he described. “The movant bears the burden of proving his post-conviction claims by a preponderance of the evidence.” Dorsey v. State, 156 S.W.3d 825, 830 (Mo.App. W.D.2005) (citing Rule 29.15(i)). “At a post-conviction relief evidentiary hearing, the motion court determines the credibility of the -witnesses and is free to believe or disbelieve the testimony of any witness, including that of the Movant.” Hurst v. State, 301 S.W.3d 112, 117 (Mo.App. E.D.2010).

Here, the trial court, who was present at each stage of these proceedings and had the opportunity to observe Wills, expressly found that “Movant’s testimony in this regard [is] not credible.” J. 5. “ We presume that the motion court’s findings and conclusions are correct, and defer to the motion court’s determinations of credibility.’ ” Hurst, 301 S.W.3d at 117 (quoting Clay v. State, 297 S.W.3d 122, 124 (Mo.App. S.D.2009)). Indeed, we find that the trial court’s findings and conclusions are supported by the record on appeal. The guilty plea transcript reflects that Wills was able to understand, follow, and meaningfully participate in his guilty plea. “While a defendant’s demeanor may not be dispositive of his or her competency to stand trial, the court is certainly free to consider demeanor when determining competency and give it the weight it determines is warranted.” Hubbard v. State, 31 S.W.3d 25, 36 (Mo.App. W.D.2000) (internal citations omitted). Moreover, Wills’s own testimony at the post-conviction relief hearing confirmed that he believed he was “competent to enter a plea for 15 years,” thus allowing the motion court to conclude that Wills’s claim was motivated by his dissatisfaction with the length of his sentence as opposed to his mental capacity at the time he pled guilty.

At argument, Wills directs us to the case of State v. McCurry-Bey, 298 S.W.3d 898 (Mo.App. E.D.2009), as controlling in this matter. However, McCurry-Bey is easily distinguishable. In that case, the defendant produced two licensed psychologists, one of whom had been originally retained by the State, who had recently evaluated him and who testified that the defendant was incompetent to stand trial. Id. at 900. To counter this expert testimony by the defendant’s witnesses, the State did not produce any medical testimony regarding the defendant’s mental condition, but relied instead on the observations of the trial court throughout the trial. Id. at 901-02. In the case at bar, there was no medical testimony at the hearing, and Wills relied upon past medical records to try to establish his incompetence at the present time. Without expert medical testimony as to Wills’s current medical condition, the trial court was justified in basing the decision on his observations throughout the proceedings and the testimony of Wills’s counsel. Azbell v. State, 144 S.W.3d 863, 872 (Mo.App. S.D.2004) (“Despite Movant’s letters, the record shows nothing in Movant’s demeanor, mannerisms, or responses that would raise suspicion that he was incompetent to plead guilty or proceed.”).

Moreover, Wills produced no evidence at the hearing to establish whether the Boone County Jail had any record of dispensing or failing to dispense medication to him. Thus, the motion court was left, by Wills, to speculate whether under his argument the Jail was simply not on notice that he was supposed to be receiving medication, or whether the Jail engaged in an intentional, purposeful withholding of prescribed medication. Without such evidence, the motion court was not precluded from inferring that the Jail had records that established that Wills was, in fact, being given his medication as prescribed, and thus he was being treated for his mental health maladies. See generally, State v. Davis, 965 S.W.2d 927, 930 (Mo.App. W.D.1998) (“The prosecution may argue an adverse inference from a defendant’s failure to produce evidence which could be reasonably expected to be in the defendant’s favor.”).

Furthermore, Wills failed to specify in his motion for post-conviction relief or in his testimony which medications that he was currently prescribed that he was allegedly not being given by the Jail. He also failed to put forth credible evidence to demonstrate how the failure to receive these specific medications would cause him to be unable to knowingly and voluntarily plead guilty. Again, Wills relies solely on his self-serving testimony and his past Illinois medical records in attempt to demonstrate that he was incompetent to plead guilty “[s]ince his symptoms without medication cause him to be paranoid and cause him to think that people are different people.”

Even when assuming arguendo that Wills failed to receive one or more of his medications, this alone was insufficient to demonstrate on appeal that the trial court erred. Azbell, 144 S.W.3d at 872 (“[T]he record refutes his allegations that the vol-untariness of his guilty plea was affected by any denial of psychotropic drugs at the time surrounding his guilty plea. Thus, we cannot say that the court’s findings and conclusions were clearly erroneous, particularly the court’s finding that, given the circumstances, Movant was not prejudiced by any apparent denial of his psychotropic drugs during the time he was initially held in custody at the Greene' County Jail.”). We have no qualm with the general proposition that someone with paranoid schizophrenia could have severe psychotic reactions to the failure to receive a specific anti-psychotic medication, but this generality by itself is insufficient to demonstrate that the motion court clearly erred in failing to grant Wills’s motion for post-conviction relief. Id. No medical expert testified to support Wills’s specific claim at the post-conviction relief hearing, and thus the motion court again was left to speculate as to how the failure to receive such medication(s) would prevent Wills from knowingly and voluntarily pleading guilty.

Finally, Wills argues that his inability to knowingly and intelligently plead guilty was supported by “his testimony that he was found to have diminished capacity in prior criminal proceedings in Illinois.” However, he failed to offer any records from the Illinois court to support this allegation. If such a finding were actually made in a previous court proceeding, these court records would be relatively easy to obtain to present as evidence before the motion court. State v. Gebhardt, 725 S.W.2d 628, 680 (Mo.App. E.D.1987) (“The juvenile court records were in existence long before the trial ... Any material relevant to defendant’s claim of diminished capacity could have been obtained from those records before trial”).

The trial court judge was in a much better position to see, hear, and evaluate the behavior and testimony of Wills in each of these hearings. We will defer to his factual findings in this regard.

For all of the aforementioned reasons, Point One is denied.

In Point Two, Wills argues that the motion court erred in denying his motion for post-conviction relief because he received ineffective assistance of counsel prior to pleading guilty “in that counsel failed to respond to Mr. Wills’ requests to present evidence of his long history of serious mental illness to the court, and counsel had no reasonable explanation for failing to act on these requests, which prejudiced Mr. Wills because there is a reasonable probability that if counsel had presented this information, the court would have been required to order a mental examination and the results could have precluded the court’s acceptance of the plea altogether.”

“ ‘To be entitled to post-conviction relief for ineffective assistance of counsel, the movant must satisfy a two-prong test.’ ” Glaviano v. State, 298 S.W.3d 112, 117 (Mo.App. W.D.2009) (quoting Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009)). “The movant must show that his counsel failed to exercise the level of skill and diligence that a reasonably competent counsel would exercise in a similar situation and that trial counsel’s failure prejudiced the defendant.” Id.

“However, by entering a plea of guilty, a defendant waives every claim of error except claims involving the voluntariness or understanding of the plea.” Herriford v. State, 295 S.W.3d 904, 906 (Mo.App. W.D.2009). As it pertains to pleading guilty when one later claims mental health issues at the time of the guilty plea, this Court has held the following:

Normally to satisfy the prejudice prong in the context of a guilty plea, a movant must show a reasonable probability that, but for counsel’s unprofessional errors, he would not have pleaded guilty and would instead have insisted upon going to trial.... However, a movant’s claim that his or her counsel was ineffective for failing to properly investigate his or her mental health status and present such information to the court does not lend itself very well to the outcome test in Strickland. Since to allow an incompetent person to plead guilty is a per se due process violation, whether an incompetent person would still have pled guilty despite his or her counsel’s ineffective assistance is irrelevant. Instead, in such a situation, with respect to the prejudice prong of a claim of ineffective assistance of counsel, the movant need only demonstrate a reasonable probability that he was incompetent, sufficient to undermine confidence in the outcome. This is a lower burden of proof than the preponderance standard. As such, in the context of a guilty plea where the movant has alleged that he or she was incompetent to plead guilty and his or her counsel was ineffective for failing to adequately investigate his or her mental health status, in determining whether the movant was prejudiced by his or her counsel’s ineffective assistance, the motion court must first determine whether there was a reasonable probability that the movant was incompetent. If the motion court determines that there was not a reasonable probability that the movant was incompetent, the inquiry can proceed to a second level, where the court determines whether the movant, but for his or her counsel’s unprofessional errors, would not have pleaded guilty and would instead have insisted upon going to trial.

Hubbard v. State, 31 S.W.3d 25, 38 (Mo.App. W.D.2000) (citations and internal quotation marks omitted).

Here, Wills claims that he received ineffective assistance of counsel at his guilty plea and at his sentencing hearing. Accordingly, we analyze these claims separately.

To begin with, Wills asserts that because he lacked the mental capacity to enter a guilty plea on the date in question pursuant to Section 552.020, the trial court erred in denying his motion for post-conviction relief. But for the reasons expanded upon at length in Point One, Wills has failed to demonstrate even a reasonable probability that he was incompetent at the time he pled guilty. Simply put, Wills has failed to adduce any credible evidence that would have given the motion court “reasonable cause to believe that the accused lacks mental fitness to proceed” at the time of his guilty plea. Section 552.020. Therefore, Wills’s plea counsel was not ineffective in this regard.

Moreover, Wills cannot demonstrate that he was prejudiced by his trial counsel’s failure to present this evidence of his mental health prior to his guilty plea because he has not put forth credible evidence that, but for his alleged counsel’s unprofessional errors, he would not have pled guilty and would instead have insisted upon going to trial. Hubbard, 31 S.W.3d at 38. On appeal, Wills asserts that he was prejudiced by the alleged ineffective assistance of his plea counsel merely because the mental health information “could have precluded the court’s acceptance of the plea altogether,” which is not a tenable argument for the reasons set forth above.

Wills does not argue on appeal that had he been ordered to receive a competency examination by the motion court pursuant to Section 552.020, this would have somehow given him a clearer understanding of his ease, thus motivating him to fight the charges through a jury trial. Rather, the record on appeal reflects merely that Wills was dissatisfied with the length of his sentence, which is insufficient to demonstrate prejudice on appeal. “[I]f a Rule 24.035 motion were available to anyone who would have not agreed to the plea if his attorney could have possibly gotten him a better plea deal, it is hard to imagine a defendant who would not meet that standard-a standard that does not exist under the law.” Herriford, 295 S.W.3d at 907. “Instead, the requirement for a plea to be found involuntary is that, absent the alleged ineffective plea counsel’s error, the defendant would not have been induced to agree to the plea.” Id. “Consequently, though [Wills] attempts to frame his claim of attorney error as an issue affecting his voluntary acceptance of his guilty plea, this argument fails because he does not assert that but for his counsel’s failure to investigate his mental illness prior to plea negotiation, he would not have accepted the plea that he ended up accepting.” Id.

Wills also argues that he received ineffective assistance of counsel because his plea counsel failed to present evidence pertaining to his mental conditions at his sentencing hearing. The trial court made the following findings and conclusions as it pertained to this claim:

Movant claims that his counsel was ineffective for failing to argue, as mitigation during sentencing, Movant’s long history of mental illness and treatment. Counsel testified that Movant never discussed his mental history with counsel and he did not recall that being an issue that was raised. This court finds counsel’s testimony credible. This court also notes that Movant mentioned his mental history to the SAR writer and thus, that information was before the court. This court also finds that even considering the evidence of mental health that Mov-ant presented at the evidentiary hearing, this court’s determination of the sentence would not have changed. Counsel was not ineffective and Movant was not prejudiced.

J. 4.

Wills’s inability to demonstrate prejudice from the absence of the evidence pertaining to his mental health at the sentencing hearing is dispositive of this issue. To demonstrate prejudice, the movant must “show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” State v. Simmons, 955 S.W.2d 729, 746 (Mo. banc 1997). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Before this Court, Wills fails to respond to the trial court’s critical finding and conclusion that when “considering the evidence of mental health that Movant presented at the evidentiary hearing, this court’s determination of the sentence would not have changed.” Accordingly, it is difficult to discern how Wills was even plausibly prejudiced by the failure to present the evidence pertaining to his mental health at the sentencing hearing. Because Wills knowingly and intelligently entered into an open guilty plea (during which it was explained to him by the Court that he could be sentenced anywhere from ten to thirty years or life in prison), we deny Point Two.

In Point Three, Wills argues that the motion court erred in denying his motion for post-conviction relief in light of the fact that he received ineffective assistance of counsel “because counsel unreasonably failed to act on a written request to withdraw his open plea of guilty prior to sentencing.” We disagree.

Rule 29.07(d) pertains to a “Withdrawal Of Plea Of Guilty” and states that “[a] motion to withdraw a plea of guilty may be made only before sentence is imposed or when imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.” “The accused is not entitled to -withdraw a guilty plea as a matter of right; such relief is reserved for extraordinary circumstances, such as a showing of fraud, mistake, misapprehension, fear, persuasion, or the holding out of false hopes.” State v. Taylor, 929 S.W.2d 209, 215 (Mo. banc 1996). “If a defendant is misled or induced to enter a plea of guilty by fraud, mistake, misapprehension, coercion, duress or fear, then the defendant should be permitted to withdraw the plea.” Dobbins v. State, 187 S.W.3d 865, 867 (Mo. banc 2006).

In rejecting Wills’s post-conviction relief motion, the motion court made the following findings and conclusions:

Movant claims that his counsel was ineffective because counsel failed to honor his request to withdraw his ‘open’ plea and to waive his SAR, accepting the State’s offer of 20 years in the Missouri Department of Corrections. The evidence established that Movant had sent a letter after his plea of guilty but prior to his sentencing to counsel requesting that his plea be withdrawn and that he accept the 20 year offer [previously] made by the State. Counsel testified that they did not recall ever seeing that letter. Regardless, Movant’s claim must fail [because] Movant’s claim is simply a claim of “buyer’s remorse” which is not a valid reason to allow a guilty plea to be withdrawn.”

J. 3.

Here, Wills has failed to demonstrate that had his plea counsel filed the motion to withdraw the guilty plea, he would have been allowed to withdraw his guilty plea. Of course, Wills needs to make this showing in order to demonstrate that he was prejudiced by his attorney’s alleged ineffective assistance of counsel. See generally, State v. Hunter, 840 S.W.2d 850, 870 (Mo. banc 1992) (“The post-conviction court was not clearly erroneous in finding counsel was not ineffective for failing to investigate and file a meritless motion to suppress defendant’s confession.”).

Wills argues that the record supports his argument that he had good cause to withdraw his guilty plea in light of the fact that he did not understand the terms of his guilty plea because of his counsel’s ineffective assistance of counsel. We disagree.

Wills cites to Dobbins for the proposition that “[prejudice can be shown when counsel’s ineffectiveness caused movant to enter an open plea rather than accepting a more favorable plea agreement,” but the Supreme Court of Missouri did not announce such a broad holding in that case. In Dobbins, the Court reversed and remanded the motion court’s denial of post-conviction relief based on the fact that the defendant’s guilty plea was not entered in a knowing and voluntary fashion. 187 S.W.3d at 867. In so holding, the Court found that defendant had “relied on his attorney’s [mistaken] advice that, whatever sentence he received, he would be eligible to petition for early release pursuant to section 558.046 upon completion of a detoxification and rehabilitation program.” Id. at 866. The fact that this “advice was incorrect” was essential to the trial court’s holding that defendant received ineffective assistance of counsel. Id. at 867.

While he argues that “he felt he was misled” by counsel and that his plea deal was “clouded with confusion,” Wills fails to cite.to anything other than his own testimony at the post-conviction hearing to support such baseless allegations. The plea transcript demonstrates that Wills was properly advised that he was entering into an “open plea” from which he could be sentenced by the court from ten to thirty years or life in prison. In addition, Wills affirmatively acknowledged that if the court chose to sentence him beyond what his counsel or the State argued for at the sentencing hearing, that the court would not allow him to withdraw the plea of guilty.

Wills argues that his plea “was neither knowing nor voluntary” because he realized after he pled guilty “that with his background in Illinois he did not think there was any way that Judge Hamilton would give him any less time than the State’s recommendation” of twenty years imprisonment. “The expectation that a defendant will receive a lesser sentence or a disappointed hope of a lesser sentence does not make a plea involuntary.” Redeemer v. State, 979 S.W.2d 565, 572 (Mo.App. W.D.1998).

We can understand Wills’s frustration that he entered into an “open plea” that resulted in him being sentenced to twenty five years imprisonment, when he had previously refused the State’s offer to plead guilty for twenty years imprisonment. But this fact alone does not establish that he is entitled to post-conviction relief. Specifically, the record reflects that Wills had an understanding that he could receive up to life in prison, and that he entered the open plea because this was his only possibility through pleading guilty to receive a sentence that was less than the twenty year sentence offered by the State. Because Wills has failed to allege or prove sufficient facts to support his motion for post-conviction relief, this claim must be denied.

Point Three is denied.

In his final Point Relied On, Wills argues that the motion court erred in denying his pro se motion for post-conviction relief “without entering specific findings of fact and conclusions of law on his pro se claims, which were addressed at the evi-dentiary hearing, because this failure denied Appellant due process of law ... in that the order is entirely insufficient to provide for meaningful appellate review of these claims.” We disagree.

Wills is correct that Rule 24.035(j) states that “[t]he court shall issue findings of fact and conclusions of law on all issues presented.” Id. (emphasis added). It is not disputed that after Wills filed his pro se motion for post-conviction relief on August 11, 2008, Wills’s appellate counsel timely filed an amended motion for post-conviction relief.

“[T]he parties and the court should consider only the amended motion, and not Mr. Day’s pro se motion” because the “amended motion supersedes Mr. Day’s pro se motion and renders it a nullity.” Day v. State, 143 S.W.3d 690, 693 (Mo.App. W.D.2004) (emphasis added). “In fact, Rule 24.035(g) prohibits the amended motion from incorporating any material in any previously filed motion.” Id. at 693-94. “Allegations in a pro se motion that are not included in a subsequently filed amended motion are not for consideration.” Self v. State, 14 S.W.3d 223, 226 (Mo.App. S.D.2000). “The motion court had no duty to respond to the allegations in movant’s pro se motion that were not in the amended motion.” Id. “The reference to those allegations in the motion court’s findings is surplusage.” Id. (emphasis added).

Here, the amended post-conviction relief motion filed by Wills’s appellate counsel did not incorporate, either directly or implicitly, Wills’s pro se claims. Therefore, such pro se claims were not properly before the motion court because they were a nullity, and accordingly, the motion court’s findings and conclusions pertaining to Wills’s pro se claims were merely surplus-age that cannot be a basis for post-conviction relief.

Point Four is denied.

Conclusion

The circuit court’s judgment, denying Wills’s motion for post-conviction relief, is hereby affirmed.

All concur.

      . All statutory references are to RSMo 2000 as updated through the 2009 cumulative supplement, unless otherwise indicated.

      . Unless otherwise indicated, rule citations are to the Missouri Rules of Criminal Procedure (2010).

      . Wills insinuates that his medical records, by themselves, were all the evidence that was needed to demonstrate that the failure to receive his "medications” rendered him incompetent to plead guilty. Exhibit 5 is predominately a history of what medications Wills was receiving while incarcerated in Illinois, but these records alone were insufficient to make the requisite showing to prove that the failure to take any of one these medications would have had a specific adverse affect on him. Moreover, Exhibit 5 did contain a report from a medical professional with the initials "kft” from 2002 that notes, among other things, ”[p]atient believes that he is better with the Zyprexa and since he is claiming psychotic symptoms with response to an anti-psychotic, this appears to be appropriate.” Id. at 2 (emphasis added). In this sense, Exhibit 5 demonstrates why, without supporting expert testimony, the motion court would be warranted in rejecting Wills's claim as presented.

      . Wills argues in Point One that his trial counsel failed to respond to his requests that counsel pursue his mental health issues prior to him pleading guilty. As Wills notes, however, this is the substance of his second Point, and therefore we will address those issues in Point Two to avoid duplicative analysis.

      . Wills testified at his post-conviction relief hearing that he "wanted to go to trial," but this declaration by itself does not explain how his desire to go to trial was predicated on his attorney’s failure to present this mental health evidence to the court prior to his guilty plea. Rather, Wills's statement was made in the context of him articulating his desire to receive or negotiate a better plea deal, which is not a basis by itself for relief on appeal.

      . The instant case is distinguishable from Vaca v. State, 314 S.W.3d 331 (Mo. banc 2010), because (among other reasons) in Vaca the Supreme Court of Missouri dealt with the issue of jury sentencing. Here, because the motion court was the court that sentenced Wills, it was in a unique position to conclude that no prejudice followed to Wills by his attorney's failure to submit this mental health evidence at the sentencing hearing.

      . If the additional claims raised in Wills’s pro se motion had been properly preserved, he still would not be entitled to relief because he failed to raise the issue of the lack of proper findings in a motion to amend the judgment filed before the trial court, as is required by Rule 78.07(c).


text:
    STATE of Missouri, Respondent, v. Stephanie RIDDLE, Appellant.
    No. WD 71096.
    Missouri Court of Appeals, Western District.
    July 27, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 31, 2010.
    Application for Transfer Denied Oct. 26, 2010.
    John P. O’Connor and Daniel J. Lobdell, Kansas City, MO, for Appellant.
    Chris Koster, Attorney General, Evan J. Buchheim, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before Division II: JOSEPH M. ELLIS, Presiding Judge, and ALOK AHUJA and KAREN KING MITCHELL, Judges.
   Order

PER CURIAM:

This is an appeal from a judgment of conviction following a jury trial in the Circuit Court of Platte County (“trial court”). Appellant Stephanie Riddle was convicted of one count of receiving stolen property with a value exceeding $500. § 570.080, RSMo 2000. She was sentenced to 120 days in the county jail and ordered to pay a $4,000 fine. We affirm the judgment of the trial court. Rule 30.25(b).


text:
    COMMERCE BANK, N.A., Respondent, v. Michael Shane STEWART and Jennifer Stewart, Appellants.
    No. WD 71301.
    Missouri Court of Appeals, Western District.
    July 27, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied Aug. 31, 2010.
    Application for Transfer Denied Oct. 26, 2010.
    Todd A. Norris, Overland Park, KS, for Respondent.
    Kimberly J. Westhusing, Kansas City, MO, for Appellants.

      Before Division I: JAMES M. SMART, JR., Presiding Judge, and MARK D. PFEIFFER and CYNTHIA L. MARTIN, Judges.
   Order

PER CURIAM:

Michael Shane Stewart and Jennifer Stewart (“the Stewarts”) appeal the judgment of the Circuit Court of Platte County (“trial court”) which was entered in favor of Commerce Bank, N.A. In their appeal, the Stewarts argue that the trial court erred in either ruling against the weight of the evidence or misapplying the law, in that: (1) the Stewarts claim the subject transaction was void; and (2) the Stewarts argue that a promissory note given to secure purchase money for a sales transaction that is void is unenforceable due to lack of consideration. We affirm in this per curiam order and have provided the parties a memorandum detailing the basis for our ruling today. Rule 84.16(b).


author: DON E. BURRELL, Judge.

text:
    Steven Keith STACY, Petitioner-Appellant, v. Tony HARRIS, Respondent-Respondent.
    No. SD 29845.
    Missouri Court of Appeals, Southern District, Division One.
    July 29, 2010.
    Motion for Rehearing and Transfer Denied Aug. 20, 2010.
    Application for Transfer Denied Sept. 21, 2010.

      John M. Albright, Poplar Bluff, MO, for Appellant.
    Chris Koster, Attorney General and Michael R. Cherba, Assistant Attorney General, Jefferson City, MO, for Respondent.
   DON E. BURRELL, Judge.

Steven K. Stacy (“Employee”) appeals from a judgment of the circuit court affirming a decision of the Personnel Advisory Board (“the PAB”) affirming Employee’s dismissal from his merit system position with the Missouri Department of Mental Health (“Employer”). In three points relied on, Employee alleges he did not receive adequate notice of the grounds on which his termination was based; that the PAB erred in concluding it could sanction his dismissal pursuant to 1 C.S.R. 20-3.070(2)(B) instead of pursuant to Missouri Department of Mental Health Operating Regulation 2.205 (“DOR 2.205”); and that the PAB improperly substituted its judgment of the appropriate sanction for that of Employer. Because the PAB’s decision was supported by substantial evidence, did not misapply the law, and did not constitute an abuse of discretion, we affirm the judgment.

Factual and Procedural Background

Employee worked from 1994 to 2006 as an “Associate Psychologist II” at Employer’s Southeast Missouri Residential Services (“SEMORS”) housing facility. Employee’s position was a merit system position, and was thereby subject to the state merit system law (chapter 36, RSMo) and ancillary administrative rules promulgated and administered by the State Division of Personnel and the PAB. As an Associate Psychologist II, Employee’s responsibilities included, among other things, writing a behavior support plan (“BSP”) for each patient. Patients at SEMORS were also variously referred to by Employer as “consumers,” “clients,” or “residents.” Employee was also responsible for training the direct care staff at SEMORS on all aspects of each resident’s BSP before it was implemented. Employee’s training of the direct care staff was a key job component of his position and was necessary to protect both residents and staff from harm.

The Appointing Authority for SEMORS was Tony Harris (“Respondent”), the facility’s superintendent. Respondent placed Employee on administrative leave while he investigated an incident in which Employee was alleged to have failed to include a note in a BSP dated September 1, 2005, regarding the necessity of protective equipment for a particular client, A.B., who had demonstrated self-injurious behavior. After conducting his investigation, Respondent sent Employee a letter dated December 6, 2006, which outlined Respondent’s findings and made a “preliminary determination [against Employee] of one count of [c]lass II [n]eglect.” The letter also notified Employee that the disciplinary action being taken against him in regard to the incident involving A.B. was governed by two separate sets of rules. The first was “a disciplinary action governed by the rules of the [PAB] ” and the second was “an abuse and/or neglect finding governed by [DOR 2.205].” The letter stated that Employee had been “incompetent, inadequate, careless or inefficient in the performance of [his] duties as an Associate Psychologist II.” The letter also informed Employee that he would remain on administrative leave until December 22, 2006, at which time he would serve a one-day suspension without pay.

On December 22, 2006, Respondent sent Employee a second letter. This second letter notified Employee that his employment at SEMORS was being terminated effective January 5, 2007. The second letter (as had the first) began with the following notice in bold type:

Please note: This letter contains within it two separate actions. First, there is a disciplinary action governed by the rules of the Missouri Personnel Advisory Board. Second, there is an abuse and/or neglect finding governed by Missouri Department of Mental Health Operating Regulation 2.205.

The second letter went on to inform Employee that his failure to properly train employees had resulted in a second incident at SEMORS. The letter also informed Employee that he had the right to present additional facts to Respondent and had the right to appeal his dismissal to the PAB in accordance with 1 C.S.R. 20-3.070(5) and 1 C.S.R. 20-4.010(1) (rules promulgated by the PAB).

The second letter’s reference to a “second incident” concerned L.M., a SEMORS client who had a medical condition that required her to remain upright for at least thirty minutes after eating. Employee had created a BSP for L.M. that directed direct care staff to use specific restraint techniques on L.M. when she began exhibiting extreme behaviors. The BSP directed that “least restrictive methods” were to first be used to attempt to de-escalate L.M.’s behavior. If such methods did not abate the emergency, the direct care staff was then directed by the BSP to place her in “an agency approved emergency restraint until the emergency no longer exists.” The BSP also noted that “the two person restraint with or without assistance procedures may be utilized to manage the emergency situation if [L.M.] has already fallen or slipped to the floor upon her own accord.” Finally, the BSP stated, “If [L.M.] has to be restrained within 80 minutes after eating she MUST be restrained in the standing position.” (Emphasis in original). Employee was responsible for training staff on L.M.’s BSP.

On October 11, 2006, “developmental assistants” (personnel considered to fall within the category of direct care staff) Karen Cooper, Grace Wagner, and Martha McClure worked the 7:00 a.m. to 3:00 p.m. shift in the SEMORS home where L.M. resided. While Wagner and Cooper were in L.M.’s bedroom, L.M. became aggressive and attacked them. Wagner and Cooper placed L.M. in a standing restraint and called McClure to come assist them. When McClure arrived, L.M. was still struggling. All three staff members and L.M. slipped on L.M.’s comforter and fell to the floor. McClure restrained L.M.’s legs while Cooper and Wagner restrained L.M.’s upper body. Cooper and Wagner attempted to lift L.M.’s chest off the floor. L.M. became calm in less than five minutes and was released from the restraint.

SEMORS’s policy at the time of the incident made allowance for only a two-person floor restraint unless a different type of restraint technique was outlined in the resident’s BSP and staff was trained on the technique.

An investigation of the incident took place when L.M. subsequently alleged that the staff had abused her. McClure testified that she had never been trained on L.M.’s BSP during the three years she had worked with L.M. at SEMORS. McClure testified that she was unaware of any special requirements for any restraint techniques used on L.M. Wagner testified that she had not read L.M.’s BSP and had not received any training on it in the three months she had worked with L.M. Training records also indicated that Cooper, the third direct care staff member involved in the incident, also had not received any training on L.M.’s BSP.

On January 5, 2007, Respondent held a “due process meeting” with Employee, who asked a couple of questions and requested copies of reports Respondent had received but did not present Respondent with any additional information about the incidents. In a third letter, dated April 27, 2007, Respondent informed Employee that his dismissal from employment would not be reversed but would have a new effective date of April 30, 2007. The third letter stated that Respondent’s reason for terminating Employee was Respondent’s substantiation of the incidents referred to in his first and second letters. It was Respondent’s contention that each of the incidents they referred to constituted instances of class II neglect as defined by DOR 2.205 and that this regulation required the termination of any employee who had engaged in two incidents of substantiated class II neglect within a 12-month period.

On May 3, 2007, Employee appealed his termination to the PAB. After holding an evidentiary hearing, the PAB affirmed Employee’s termination in its written “Findings of Fact, Conclusions of Law, Decision and Order” dated June 10, 2008. In its decision and order, the PAB first found that the incident involving A.B. referred to in Respondent’s first letter to Employee did not meet the necessary criteria to rise to the level of class II neglect. The PAB did find, however, that the incident involving L.M. referred to in Respondent’s second letter did constitute class II neglect. The PAB found that “[Employee] failed to train the direct care staff on client LM’s [BSP] over a course of at least three years” and that this failure to train resulted in the direct care staff acting contrary to the plan’s requirements and “placing L.M. in a prone restraint within thirty minutes of her eating on October 11, 2006.”

The PAB also noted that even if the incident involving L.M. did not occur within 30 minutes of L.M. eating and L.M. suffered no injury, Employee still failed to train the staff as required. And while the PAB found that the incident with L.M. did constitute an incident of class II neglect, because it had also determined that the incident involving A.B. did not fit within that category, the PAB disagreed with Respondent’s contention that Employee’s termination was mandatory under DOR 2.205. Instead, the PAB found that Employee’s failure to train direct care staff on L.M.’s BSP “qualified] as a cause for dismissal pursuant to Board Regulation 1 C.S.R. 20-3.070(2)(B)” and affirmed Employee’s termination on that basis.

Analysis

Standard of Review

The standard for judicial review of a decision of the PAB is set forth in section 536.140. “The inquiry may extend to a determination of whether the action of the agency (1) is in violation of constitutional provisions; (2) is in excess of the statutory authority or jurisdiction of the agency; (3) is unsupported by competent and substantial evidence upon the whole record; (4) is, for any reason, unauthorized by law; (5) is made upon unlawful procedure or without a fair trial; (6) is arbitrary, capricious or unreasonable; (7) involves an abuse of discretion.” Section 536.140.2.

“The decision of the PAB is reviewed as if it had been directly appealed to this court.” Prenger v. Moody, 845 S.W.2d 68, 73 (Mo.App. W.D.1992) (citation omitted). “If the Board’s ruling ‘is supported by competent and substantial evidence upon the whole record ... the ruling will be affirmed, even though the evidence would also have supported a contrary determination.’ ” Missouri Veterans’ Comm’n v. Vanderhook, 290 S.W.3d 115, 119-20 (Mo.App. W.D.2009) (quoting Lagud v. Kansas City Bd. of Police Comm’rs, 136 S.W.3d 786, 791 n. 5 (Mo. banc 2004)). “ ‘This Court must look to the whole record in reviewing the Board’s decision, not merely at that evidence that supports its decision,’ and we no longer view the evidence in the light most favorable to the agency’s decision.” Vanderhook, 290 S.W.3d at 119 (quoting Lagud, 136 S.W.3d at 791).

“A reviewing court will refrain from substituting its judgment for that of the [PAB] on factual matters.” State Bd. of Registration for the Healing Arts v. McDonagh, 123 S.W.3d 146, 152 (Mo. banc 2003). “We may not substitute our judgment on the evidence for that of the agency, and we must defer to the agency’s determinations on the weight of the evidence and the credibility of witnesses.” Orion Sec., Inc. v. Board of Police Comm’rs of Kansas City, 90 S.W.3d 157, 163 (Mo.App. W.D.2002). “While this Court cannot substitute its own judgment on factual matters, it can independently determine questions of law.” Id.

Adequate Notice Requirement

Section 36.380 governs the dismissal of state merit system employees. Department of Soc. Servs. v. Oliver, 261 S.W.3d 719 (Mo.App. W.D.2008). “For an employee’s dismissal to take effect, Section 36.380 requires the appointing authority to give the employee a written reason for the dismissal before the dismissal’s effective date.” Id. “Any employee being suspended shall be furnished with a statement in writing specifically setting forth the reasons for the suspension.” Division of Family Servs. v. Cade, 939 S.W.2d 546, 551-52 (Mo.App. W.D.1997) (emphasis in original) (holding an employee was given insufficient notice when he was not furnished with specific reasons for his twenty-day, retroactive suspension without pay). “Rules and regulations, if duly promulgated, have the force and effect of law.” Id. at 551. “At the most fundamental level, due process requires that a person facing the deprivation of a property interest must receive notice and an opportunity for a hearing ‘appropriate to the nature of the case.’ ” Id. at 553 (quoting Moore v. Bd. of Educ. of Fulton Pub. Sch. No. 58, 836 S.W.2d 943, 947 (Mo. banc 1992), and Belton v. Bd. of Police Comm’rs of Kansas City, 708 S.W.2d 131, 137 (Mo. banc 1986)) (citations omitted).

Employee argues he was not afforded proper “notice of the grounds on which termination [was] soughtf.]” Whether the notice provided was sufficient to satisfy the requirements of due process is assessed by using the balancing test set forth in the United States Supreme Court case of Mathews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). Cade, 939 S.W.2d at 553. “The Mathews test balances three interests: (1) the private interest affected by the action; (2) the risk of an erroneous deprivation of that interest under the procedures being used; and (3) the government’s interest in resolving the matter without being unduly burdened by additional or substitute procedural requirements.” Id.

First, we find that as a merit employee, Employee had a property interest in his job. Id. at 552 n. 7. Employee’s loss of that job constituted a complete deprivation of his property interest. See McCall v. Goldbaum, 863 S.W.2d 640, 642 (Mo.App. E.D.1993). Thus, Employee had a due process right to receive adequate notice of the reasons for his dismissal prior to its effective date. Cade, 939 S.W.2d at 552.

In considering the second factor, we find that there was not a substantial risk of an erroneous deprivation of Employee’s interest by Respondent giving Employee notice as set forth in his first and second letters to Employee. This case is completely distinguishable from the notice given in Cade, in which the employee was merely informed that he was “being suspended pending further investigation of charges of alleged sexual harassment of fellow employees by your actions [ ... ].” 939 S.W.2d at 554. In Cade, The employee was not given any hint as to which employees he had allegedly harassed, what his actions were that constituted harassment, and, as a result, had a limited ability to prepare a defense. Id.

In another case finding a lack of adequate notice, Brixey v. Personnel Advisory Bd., 607 S.W.2d 825 (Mo.App. S.D. 1980), the challenged notice came in the form of two letters and a service report. Id. at 827. As in Cade, it was conceded that “the [PAB] ‘found reasons not included in the dismissal notice.’ This shows that [the employee] did not receive a proper written notice and thus may not have had an adequate opportunity to rebut those grounds. There is no way for us to determine if the board would have upheld the dismissal if those grounds had not been considered.” Id. at 828 (quoting what we presume was the employer’s brief).

In contrast to Cade and Brixey, the employee in Hattervig v. de la Torre, 870 5.W.2d 895 (Mo.App. W.D.1993), alleged he had not been afforded proper notice when he was accused of exhibiting disruptive behavior toward several employees because only one of those employees had been named in his letter of dismissal. Id. at 898. The appellate court found that the employee was given proper notice because his dismissal was upheld “for the same infraction alleged in [the hiring authority]’s [dismissal] letter” and “was apprised of and had a meaningful opportunity to prepare a defense to the charge of which he was found guilty by the Board and which is the subject of our review in this appeal[.]” Id. (italics omitted).

In the instant case, the first and second letters Respondent sent Employee gave very specific details of the incidents that would be the subject of Respondent’s investigations and appropriately alleged Employee’s involvement in the matters they referenced. The letters also stated the legal grounds for the contemplated disciplinary actions. The second letter specifically stated that Employee had “been incompetent, inadequate, careless or inefficient in the performance” of duties, that Employee’s failure to train staff on a BSP warranted dismissal, and referred Employee to his “right to appeal [his] dismissal to the [PAB] in accordance with 1 CSR 20-3.070[ ... ].” The second letter told Employee that he could present information explaining why the dismissal should not be effective and that he could present information explaining why a finding of class II neglect was incorrect. Because Employee was provided with notice of the exact nature of the complaints against him, as well as the rules and regulations that would govern the disposition of them, Employee had adequate notice of the grounds for his termination.

In regard to the third Mathews factor, there is no basis to require additional or different notice procedures by the government. We find that any additional or more detailed notice would not have helped Employee’s cause, as he was already informed of the details of the charges against him. Employee’s claim that he was not afforded adequate notice of the charges against him is without merit. Point denied.

Dismissal based on 1 C.S.R. 20-3.070(2)(B)

1 C.S.R. 20-3.070 (entitled “Separation, Suspension and Demotion”) grants a merit system employee the right to appeal any termination of employment and also contains several alternate grounds for the dismissal of such employees. In regard to grounds applicable to the case at bar, the rule states:

(2) Causes for Suspension, Demotion and Dismissal. The following are declared to be causes for suspension, demotion or dismissal of any employee in the classified serviced] depending upon the seriousness of the cause; however, those actions may be based upon causes other than those enumerated in this rule, namely, that the employee:
(B) Is incompetent, inadequate, careless or inefficient in the performance of the duties of his/her position (specific instances to be charged) or has failed to meet established minimum standards in the performance of those duties[.]

1 C.S.R. 20-3.070(2)(B). This PAB rule was applicable to Employee during his employment as a merit system employee and Employee was notified that the violation of PAB rules would be one of the two alternative grounds Employer would rely on in terminating his employment.

“The Personnel Advisory Board exists by authority of section 36.050,” which “gives the Board authority not inconsistent with the chapter to make rules and regulations.” Kyle v. State Pers. Advisory Bd., 607 S.W.2d 848, 849 (Mo.App. W.D.1980). “Under this authority the Board adopted Rule 1 CSR 20-3.070[.]” Id. It is within the authority of the PAB to interpret and construe the rules of the Department of Mental Health to determine if Employee’s dismissal was justified in light of the situation. Id.

A dismissal may be affirmed by the PAB when the employee at issue is found to be “incompetent, inadequate, careless, or inefficient in the performance of the duties of his position and [the] ... dismissal [is] for the good of the service .... ” Prenger, 845 S.W.2d at 75. In Prenger, the appellate court found it appropriate for the PAB to affirm an employee’s dismissal for being “incompetent, inadequate, careless or inefficient in the performance of the duties of his position and that his dismissal was for the good of the service” when the employee had engaged in conduct contrary to his employer’s policies, “ignored the direction of his supervisors,” and falsified documents. Id. at 76

Employee relies extensively on Missouri Dept of Soc. Servs. v. Young, 700 S.W.2d 889, 891 (Mo.App. W.D.1985), in which an employee was demoted for his failure to disclose the fact that he was married to a subordinate employee. Id. Young did not involve any violation of a job-related law or policy that was in place or even communicated to the employee. Id. In the instant case, Employee was charged with violating both PAB rules and a Department of Mental Health regulation in the performance of his duties as an Associate Psychologist II.

The PAB found adequate cause to dismiss Employee existed under 1 C.S.R. 20-3.070(2)(B) as his failure to train over a three-year period the direct care employees identified in Respondent’s letters resulted in L.M. and those employees being placed in a potentially dangerous situation. There was sufficient evidence before the PAB (in the form of live testimony, affidavits, investigative reports, and employee personnel files) that Employee was aware of his duty to train direct care staff on patient BSPs and did, in fact, fail to perform that duty in violation of 1 C.S.R. 20-3.070(2)(B).

A failure to properly train direct care staff on clients’ BSPs can result in serious harm either to the clients or the employees providing direct care to those clients. A failure to properly train employees can also subject an employer to causes of action for negligence. See, e.g., Boyer v. Empiregas, Inc. of Chillicothe, 734 S.W.2d 828, 832 (Mo.App. W.D.1987). Employee’s repeated and protracted failures to appropriately train direct care staff, when it was his duty to do so, put clients, fellow employees, and Employer at risk.

Employee has also not challenged the PAB’s finding that Employee’s discharge was “for the good of the service.” Discharge “for the good of the service” based on 1 C.S.R. 20-3.070(2)(B) implies “some personal misconduct or fact, rendering the incumbent’s further tenure harmful to the public interest.” Kyle, 607 S.W.2d at 850 (quoting State ex rel. Eckles v. Kansas City, 257 S.W. 197, 200 (Mo.App.K.C.D.1923)). Because Employee’s failure to properly train direct care staff was a sufficient danger to the public interest, as in Prenger and McCalister, the PAB did not abuse its discretion in finding that Employee’s termination was for the good of the service.

Employee has failed to carry his heavy burden of overcoming the presumption that the agency’s factual determinations were correct. See Vanderhook, 290 S.W.3d at 120. In addition, the PAB’s decision affirming the termination of Employee on the grounds that Employee’s failure to train employees on L.M.’s BSP was “incompetent, inadequate, careless, and inefficient performance of his job duties” and that his dismissal was for the good of the service was supported by substantial evidence, and did not misapply the law.

Employee’s second and third points are also denied, and the judgment of the trial court upholding the decision of the PAB is affirmed.

BARNEY, J., and BATES, P.J., Concur.

      . Employee further alleges the PAB erred as a matter of law by failing to uniformly enforce employment regulations and in finding that Employee had committed an instance of class II neglect. As to each of these complaints, as well as his claim that the PAB improperly substituted its judgment for that of Employer on the appropriate sanction to be imposed, Employee either misstates or misinterprets the PAB’s actual findings and conclusions. Specifically, Employee's dismissal was not upheld on the ground that Employer had proved a single incident of class II neglect where proof of two such incidents was required for an automatic dismissal under DOR 2.205. Rather, the PAB affirmed the dismissal pursuant to 1 C.S.R. 20-3.070(2)(B), an alternative ground also asserted by Employer. This alternative ground alleged that Employee was “incompetent, inadequate, careless or inefficient in the performance of [his] duties as an Associate Psychologist II.” The "incompetent, inadequate, careless or inefficient” language is a direct quotation from 1 C.S.R. 20-3.070(2)(B). In light of the PAB's actual ruling, issues related to what conduct constitutes class II neglect are irrelevant to our review and we do not address them.

      . All references to chapter 36 are to RSMo 2000. All references to chapter 536 are to RSMo, Cum.Supp.2006.

      . If we understand Employee correctly, this ruling was the basis for his argument that the appropriate disciplinary action against him should have been a one-day suspension — the discipline Employer had imposed when it believed Employee had committed one act of class II neglect. In support of his claim that the PAB improperly substituted its judgment of the appropriate sanction for that of Employer, Employee has failed to point to any evidence indicating that Employer would only have imposed a one-day suspension after the incident with L.M. if Employer knew that the prior incident with A.B. would fail to qualify as an incident of class II neglect. The fact that Employer has filed a brief in opposition to each of Employee's claims of error would support the opposite conclusion.

      . Overruled on other grounds by Missouri Veterans' Comm’n v. Vanderhook, 290 S.W.3d 115, 120 n. 3 (Mo.App. W.D.2009) (noting that administrative decisions should no longer be reviewed in the light most favorable to the agency).

      . Employee has not challenged the agency's promulgation of 1 C.S.R. 20-3.070(2)(B).

      . Although Employee relies heavily on McCall v. Goldbaum, 863 S.W.2d 640, 642 (Mo.App. E.D.1993), it is also distinguishable from the case at bar because McCall was terminated for reasons not set forth in the notice he had been given. The notice sent to McCall said that he was being terminated for class II neglect, sexual abuse of clients, and consumption of alcohol on the job. Id. at 641. In reviewing McCall’s termination, the PAB "concluded [McCall] was 'guilty of abusive or improper treatment toward residents of St. Charles Habilitation Center’ but he ‘did not consume alcohol on the premises.' The [PAB] made no findings as to whether [McCall] was guilty of either [c]lass II neglect or sexual abuse of clients.” Id. The circuit court was held to have correctly reversed the PAB because McCall was in essence found guilty of something — "client abuse and neglect” — that he had not been charged with and did not enable [him] to prepare a defense to "abusive or improper treatment toward residents.” Id. at 642. In the instant case, Employee’s notice alleged he had "been incompetent, inadequate, careless or inefficient in the performance" of his duties in failing to train the direct care staff on L.M.’s BSP and the PAB approved his termination on that ground.

      . “Associate Psychologist II” is a classified position. (Missouri Office of Administration, Division of Personnel, Alphabetical Listing of Classes 9 (2010)).

      . Employee's brief focuses on DOR 2.205(10)(c)(l), a regulation that mandates the dismissal of a merit system employee who has accumulated two substantiated class II neglect violations within a twelve-month period — apparently the primary ground Respondent said he was relying on in terminating Employee. Because the PAB found that the incident with A.B. did not meet the definition of class II neglect, this mandatory termination rule did not apply to Employee and was not relied on by the PAB in its affirmation of Employee’s dismissal.