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Sebastian DOWELL, Appellant, v. STATE of Missouri, Respondent.
Sebastian Dowell (“Dowell”) appeals the judgment of the Circuit Court of Buchanan County, Missouri (“motion court”), denying, after an evidentiary hearing, his motion for post-conviction relief pursuant to Rule 24.035.1 On appeal, Dowell claims that the motion court clearly erred in denying his Rule 24.035 motion because his plea counsel was constitutionally ineffective in retaining an expert who failed to perform a scientifically adequate psychological examination, and that, but for plea counsel's deficient performance, there is a reasonable probability that Dowell would have received a lesser sentence. We affirm the judgment of the motion court.
Factual and Procedural Background
The State charged Dowell with murder in the second degree, section 565.021,2 for his participation in events occurring on or about October 16, 2016. Dowell and his girlfriend, Amanda Bennett (“Bennett”), murdered a young woman (“Victim”) by strangling and stabbing her. Victim knew Bennett, but Dowell did not know her. Dowell was eighteen years old at the time the crime was committed. Dowell pleaded guilty, and in exchange, the State agreed not to seek any enhancements or elevated charges. Bennett also pleaded guilty. Dowell was sentenced to life in prison.
During his representation of Dowell, plea counsel retained Dr. Gregory Sisk (“Dr. Sisk”), a clinical psychologist with a Ph.D. Plea counsel has used Dr. Sisk on several of his cases, but at the motion hearing, he could not remember whether Dowell's case was the first time he used Dr. Sisk, or one of the subsequent times. Plea counsel testified at the motion hearing that he believed Dr. Sisk made a definitive diagnosis after he met with Dowell, but counsel did not remember exactly what the diagnosis was. Plea counsel did recall that Dr. Sisk mentioned that Dowell had some delusions but also that Dowell was malingering or exaggerating his symptoms. Plea counsel decided not to call Dr. Sisk at Dowell's sentencing hearing because Dr. Sisk told counsel he would not be a good witness for Dowell at sentencing.
Instead of calling an expert witness at Dowell's sentencing, he relied on the facts in the sentencing assessment report, which included that Bennett was very controlling, and that Dowell was more of a follower than the leader in that relationship. Counsel presented excerpts from letters from Bennett to Dowell while they were both in jail prior to the plea where she acknowledged that Dowell was reluctant to follow through on the murder and that she had fooled law enforcement into thinking that Dowell was evil and the primary person responsible for the murder. Counsel also stressed Dowell's young age and knew that the sentencing judge, who also heard the motion for post-conviction relief, had “an understanding and appreciation for the juvenile mind.”3 The sentencing report mentioned Dowell's history with depression, an extensive account of his self-described mental symptoms, and information about his childhood including his diagnosis at the age of eight as having high functioning autism. Finally, counsel called Dowell's mother to testify at his sentencing hearing and produced a letter from Bennett that emphasized her domineering nature.
At the motion hearing, Dowell called Dr. Lisa Witcher, a licensed clinical forensic psychologist. Dr. Witcher did not specialize in juveniles. Dr. Witcher examined Dowell, reviewed some of his medical records, and reviewed the plea and sentencing transcripts. Dr. Witcher diagnosed Dowell as having Asperger's and schizoaffective disorder. Dr. Witcher noted that Dowell was taking medications in custody for his mental conditions but that he had stopped taking them in the past because he did not like the way they made him feel. Dr. Witcher stated that Dowell suffered from auditory hallucinations which he referred to as his alter ego. The court asked Dr. Witcher whether Dowell's conditions “would affect a person's understanding of the gravity of the harm,” and whether “they would not understand that it was wrong” to take the actions Dowell took. Dr. Witcher answered, “And so they can appreciate that it's wrong, but they have trouble expressing and verbalizing their appreciation of how wrong it truly is.” The court clarified that Dr. Witcher was not “suggesting that if someone has Asperger's, that they just—that they don't know it's wrong to kill?” And Dr. Witcher confirmed that she was not making that assertion.
The motion court denied Dowell's motion, finding that Dowell's single claim of ineffective assistance of counsel was “without merit.” The motion court found that counsel's decision not to call an expert witness who opined that Dowell was exaggerating his mental symptoms in favor of a strategy to “emphasize [Dowell's] youth, and to portray [Dowell] as a follower, who acted under the control of his domineering co-defendant girlfriend” while “being aware of the Court's experience with juvenile[s] and the workings of the adolescent brain” was reasonable, and therefore not grounds for relief. Dowell appeals.
Standard of Review
This Court reviews the denial of post-conviction relief to determine whether the motion court's findings of fact and conclusions of law were clearly erroneous. Rule 24.035(k). A motion court's judgment is clearly erroneous if “in light of the entire record, the court is left with the definite and firm impression that a mistake has been made.” Davis v. State, 486 S.W.3d 898, 905 (Mo. banc 2016).
Dowell's sole point on appeal is that his plea counsel was constitutionally ineffective in that he retained a mental health expert who failed to perform an adequate psychological evaluation of Dowell, and that but for plea counsel's deficient performance, there is a reasonable probability that Dowell would have received a lower sentence. The State objects to Dowell's claim on appeal, arguing that it was not preserved, because Dowell's claim before the motion court was worded differently. Dowell counters that he pleaded facts before the motion court that support his claim under either phraseology. Dowell's claim of ineffective assistance before the motion court did involve plea counsel's retention of the expert witness in preparation for Dowell's sentencing, and the expert's qualifications. We find that Dowell has not established that the motion court clearly erred in denying his motion with respect to his plea counsel's retention of and failure to call as a witness this mental health expert.
To prevail on a claim that counsel was constitutionally ineffective, the movant must establish that counsel's performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney and that the movant was prejudiced by counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Webb v. State, 334 S.W.3d 126, 128 (Mo. banc 2011). “A claim of ineffective assistance of counsel at sentencing following a guilty plea is a ‘cognizable’ claim under Rule 24.035.” Cherco v. State, 309 S.W.3d 819, 825 (Mo. App. W.D. 2010). “If a defendant aggrieved by ineffective assistance of counsel at sentencing is willing to abide by the guilty plea ․ the defendant nonetheless may have recourse under a post-conviction motion if the defendant demonstrates there is a reasonable probability that sentencing was influenced by ineffective assistance of counsel during sentencing.” Id. at 830. The Strickland test also applies to the sentencing. Id. at 829.
To satisfy the performance prong, Dowell must show that plea counsel's decision not to present expert testimony regarding Dowell's psychological conditions at sentencing fell below an objective standard of reasonableness. Id. (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). To satisfy the prejudice prong, the movant must show that, but for counsel's errors, there is a reasonable probability that the resulting sentence would have been different. Scroggins v. State, 596 S.W.3d 163, 166 (Mo. App. W.D. 2020). Furthermore, “[s]pecial deference is given when the PCR judge and the [sentencing] judge are the same.” Goodwater v. State, 560 S.W.3d 44, 55 (Mo. App. W.D. 2018). Such is the case here.
Dowell has satisfied neither the performance prong nor the prejudice prong of Strickland. Although he claims that plea counsel retained an expert “who failed to perform a scientifically adequate psychological evaluation of [Dowell],” he provided no evidence that this allegation is true. Dowell did not call Dr. Sisk, counsel's retained expert, at the motion hearing to ask him about the examination he conducted. And while plea counsel testified at the motion hearing regarding his notes and recollection of what Dr. Sisk's examination of Dowell involved, counsel recalled little detail other than that Dr. Sisk interviewed Dowell and believed him to have some mental deficiencies, including delusions, but concluded that Dowell was malingering or exaggerating his symptoms, that Dowell was of normal IQ, and that, overall, Dr. Sisk himself did not believe he would be a good witness for Dowell at sentencing. Dowell can't establish how Dr. Sisk's examination was deficient without establishing the actual extent of the exam that was undertaken.
Dowell also has failed to satisfy the prejudice prong of Strickland because he failed to produce evidence of mental-health testimony which would have been persuasive at sentencing under the standards he himself advocates. Although Dowell claims that Dr. Sisk failed to perform an “adaptive functioning” test, Dr. Witcher, Dowell's expert at the motion hearing, did not testify that she had conducted an adaptive functioning test in arriving at her diagnosis. Dr. Witcher only met with Dowell in-person one time, as did Dr. Sisk; otherwise they both relied on other materials. Dr. Witcher also did not specialize in adolescents, although his argument belabors the fact that Dr. Sisk was not a specialist in adolescent psychology. And Dr. Witcher did not mention Dowell's IQ, which Dowell claims is a mandatory consideration in assessing intellectual disability. In fact, most of Dr. Witcher's testimony involved hypotheticals about an individual having Asperger's syndrome and a schizoaffective disorder, or other individuals Dr. Witcher had treated. Most of Dr. Witcher's testimony did not pertain to Dowell specifically.
Finally, the motion court, following the evidentiary hearing, concluded:
Following examination, the expert, Dr. Gregory Sisk, informed trial counsel he believed [Dowell] was of average IQ, [Dowell] was exaggerating his problems, and he was malingering in his responses.
Given this, trial counsel's strategy was to emphasize [Dowell's] youth, and to portray [Dowell] as a follower, who acted under the control of his domineering co-defendant girlfriend. This mitigation was presented through the testimony of [Dowell's] mother, as well as letters written to [Dowell] by his co-defendant girlfriend. Counsel also testified as to his being aware of the Court's experience with juvenile[s] and the workings of the adolescent brain. Such sound strategy will not be second-guessed by this Court․
Neither Dowell nor Dr. Witcher, his expert at the motion hearing, has offered anything to render the motion court's findings and conclusions clearly erroneous or show in any way that the sentence would have been different if an expert had been called to testify at the sentencing hearing.
Dowell's point on appeal is denied.
1. All rule references are to Missouri Supreme Court Rules (2020) as updated by the most recent supplement.
2. All statutory references are to RSMo. 2016, as updated by the most recent supplement.
3. The sentencing/motion court judge was also a probate/juvenile court judge for sixteen years.
Gary D. Witt, Judge
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Docket No: WD 83511
Decided: January 12, 2021
Court: Missouri Court of Appeals, Western District.
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