GILMAN v. STATE (2026)

Johnathon Lee Gilman (“Gilman”)¹ appeals from the motion court's judgment denying his Rule 24.035 post-conviction motion.² Gilman argues that he was deprived of effective assistance of counsel because his plea counsel failed to object or seek clarification when the State told the plea court that the ten-year sentence imposed on Count VIII had to run consecutively to the ten-year consecutive sentences imposed on Counts I through VII, resulting in a total term of imprisonment of eighty years instead of seventy years. Because the plea court did not commit legal error in ordering the sentence imposed on Count VIII to run consecutively with the sentences imposed on Counts I through VII, Gilman has not sustained his burden to establish ineffective assistance of counsel. The motion court's judgment is affirmed.

Factual and Procedural Background

The State charged Gilman via information with thirty-five counts alleging sex crimes against children and child pornography. Gilman was charged with five counts of statutory sodomy in the first degree (Counts I-V); two counts of statutory rape in the first degree (Counts VI-VII); one count of child molestation in the first degree (Count VIII); two counts of sex trafficking of a child in the first degree (Counts IX-X); eight counts of sexual exploitation of a minor (Counts XI-XVIII); fifteen counts of possession of child pornography (Counts XIX-XXXIII); one count of sexual misconduct involving a child under fifteen (Count XXXIV); and one count of incest (Count XXXV). Gilman pleaded guilty to all of the charges. The plea court accepted Gilman's pleas, ordered a sentencing assessment report, and scheduled a sentencing hearing.

During the sentencing hearing, the plea court sentenced Gilman to ten-year sentences on each of Counts I through VII and ordered the sentences to run consecutively pursuant to section 558.026.1 ³ for a total sentence of seventy years. The plea court then imposed sentence on each of the remaining offenses,⁴ including a ten-year sentence on Count VIII, and stated that the remaining sentences would run concurrently to the consecutive sentences imposed on Counts I through VII.

The State then sought clarification about the ten-year sentence imposed on Count VIII. The State told the plea court that the ten-year sentence imposed on Count VIII “has to run consecutive[ly].” The plea court responded, “Yeah. You're right. I had that marked too․ So that'll be a total of eighty years.” A bit later in the sentencing hearing, the plea court stated, “So it's really I through VIII are all required by state statute to be consecutive.” Gilman's counsel expressed no disagreement with these statements and sought no clarification of the statements. The plea court asked Gilman if he understood, and Gilman answered, “Yes, sir.”

Gilman filed a timely pro se Rule 24.035 post-conviction motion, and the motion court appointed counsel to represent him. On October 11, 2023, Gilman's appointed counsel filed an amended Rule 24.035 motion (“amended motion”). The amended motion alleged that Gilman received ineffective assistance of plea counsel in that plea counsel “fail[ed] to object [to] or seek clarification on the prosecutor's statement that [the sentence for] Count VIII had to run consecutive[ly] to Counts I-VII as a matter of law.” The amended motion argued that section 558.026.1 did not require the sentence for Count VIII to run consecutively to the sentences for Counts I through VII for two reasons: (i) because first-degree child molestation is not an offense listed in the statute that requires a consecutive sentence; and (ii) because, though section 558.026.1 requires a consecutive sentence for non-enumerated offenses that occur at the same time as an enumerated offense, that could only apply if Count VIII was committed at the same time as all of Counts I through VII, in which case Gilman's convictions of Counts II and VIII would violate double jeopardy. Gilman further argued that even if there is no double jeopardy issue, the ten-year sentence imposed on Count VIII would only be required to run consecutively to Count II, leaving Gilman's total term of incarceration at seventy years. Gilman argued that had plea counsel objected or sought clarification of the State's statement that the sentence on Count VIII had to run consecutively, then the plea court would have realized that was not the case, and Gilman would only have been sentenced to a total of seventy years on Counts I through VIII, not eighty years.

The motion court held an evidentiary hearing at which plea counsel testified. Plea counsel testified that he had no strategic reason for not objecting to or clarifying the State's statement that the sentence for Count VIII must run consecutively to the sentences for Counts I through VII. Plea counsel stated that he had “no reason” to believe based on his investigation of the case and discussions with Gilman that Count VIII occurred at a different time than Counts I through VII. Plea counsel testified that, had he believed that Count VIII occurred at a different time than Counts I through VII, he would have argued that the sentence for Count VIII was not required by section 558.026.1 to run consecutively.

The motion court issued its findings of fact, conclusions of law, and judgment denying the amended motion (“Judgment”). After finding plea counsel's testimony credible and reciting the legal standards for evaluating Gilman's claim of ineffective assistance of plea counsel during sentencing, the Judgment included the following conclusions of law: (1) “[Gilman] did not testify that the conduct stated in Count VIII was a stand-alone offense unrelated to any of the first seven (7) counts and [Gilman] would be in the best position to know that”; (2) “[Gilman] failed to show [plea counsel's] conduct fell below the standard in failing to object as there is no evidence the objection would have been meritorious as there was no showing the conduct in Count VIII was not committed at the same time or during another charged count of First[-]Degree Statutory Sodomy or Rape” (as were charged in Counts I through VII); (3) “[Gilman] failed to show the [plea] court was operating under any materially false understanding related to being sentenced to consecutive time instead of concurrent time[,] and the record does not show the court[-]imposed sentence was based on a mistaken belief [of law]”; and (4) “[Gilman] has not established that an objection by his counsel on the grounds of double jeopardy would have been meritorious.”

Gilman appeals.

Standard of Review

Our review of a motion court's denial of a Rule 24.035 post-conviction motion is “limited to a determination of whether the findings and conclusions of the [motion] court are clearly erroneous.” Rule 24.035(k). “The motion court's findings and conclusions are clearly erroneous only if, after a review of the record, [we are] left with a definite and firm impression that a mistake was made.” Lee v. State, 735 S.W.3d 669, 672 (Mo. App. W.D. 2026). The “clearly erroneous” standard encompasses alleged legal errors committed by the motion court, which, like all mistakes of law, are reviewed de novo. Flaherty v. State, 694 S.W.3d 413, 417 (Mo. banc 2024) (citing Crosswhite v. State, 426 S.W.2d 67, 70 (Mo. 1968)). When reviewing whether the motion court clearly erred in its factual findings, we view the evidence and inferences drawn therefrom in the light most favorable to the motion court's judgment, disregarding all contrary evidence and inferences. Armstrong v. State, 734 S.W.3d 381, 384 (Mo. App. W.D. 2026). Gilman, as the appellant, bears the burden to establish that the motion court's judgment constituted clear error. Id.

Analysis

Gilman presents a single point on appeal. He claims that the motion court clearly erred in denying his claim of ineffective assistance of plea counsel because its decision was based on a mistake of law and is not supported by the record. Gilman argues that the motion court's conclusion that plea “counsel's performance was not deficient was based on the legally erroneous finding that the prosecutor's statement could have been correct and that therefore counsel's objection/clarification would not have been meritorious.” Gilman argues that the record establishes that, if plea counsel would have corrected the State about the necessity of the sentence for Count VIII to run consecutively, the plea court would have sentenced Gilman to seventy years’ incarceration, not eighty years’ incarceration.

“A claim of ineffective assistance of counsel at sentencing following a guilty plea is a ‘cognizable claim’ under Rule 24.035.” Vannaman v. State, 719 S.W.3d 489, 498 (Mo. App. W.D. 2025) (quoting Cherco v. State, 309 S.W.3d 819, 825 (Mo. App. W.D. 2010)). We evaluate a claim that plea counsel provided ineffective assistance of counsel using the two-prong standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Id. The first prong, known as the performance prong, requires the movant to prove that plea counsel's “performance was deficient because [ ]he failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise in similar circumstances.” Id. When evaluating plea counsel's performance, we are “ ‘highly deferential’ to plea counsel, requiring the movant to overcome the ‘strong presumption’ that plea counsel acted reasonably and effectively.” Williams v. State, 728 S.W.3d 33, 45 (Mo. App. W.D. 2025) (quoting Browning v. State, 685 S.W.3d 639, 643-44 (Mo. App. W.D. 2024)). The second prong, known as the prejudice prong, requires the movant to prove that his plea counsel's deficient performance prejudiced him in that, but for his plea counsel's deficiency, “the result of the sentencing would have been different, specifically, that his sentence would have been lower.” Vannaman, 719 S.W.3d at 498 (quoting Dawson v. State, 611 S.W.3d 761, 769 (Mo. App. W.D. 2020)). The failure to establish either the performance or the prejudice prong by a preponderance of the evidence is fatal to the movant's claim of ineffective assistance of counsel. Id.

When claiming that plea counsel is ineffective for failing to object during sentencing, “[t]he movant must prove that a failure to object was not strategic and that the failure to object was prejudicial.” Goodwater v. State, 560 S.W.3d 44, 56 (Mo. App. W.D. 2018) (quoting Goudeau v. State, 152 S.W.3d 411, 418 (Mo. App. S.D. 2005)). If plea counsel's decision not to object was a matter of reasonable strategy, then plea counsel's performance will not be found ineffective. Id.

Gilman asserts that his plea counsel's failure to object or seek clarification about the necessity of imposing a consecutive sentence for Count VIII constituted deficient performance because section 558.026.1 did not, as a matter of law, require a consecutive sentence for Count VIII. The premise essential to Gilman's claim requires us to determine whether Gilman demonstrated that section 558.026.1 did not require the sentence on Count VIII to be served consecutively.

Section 558.026.1 provides:

Multiple sentences of imprisonment shall run concurrently unless the court specifies that they shall run consecutively; except in the case of multiple sentences of imprisonment imposed for any offense committed during or at the same time as, or multiple offenses of, the following felonies:

(1) Rape in the first degree, forcible rape, or rape;

(2) Statutory rape in the first degree;

(3) Sodomy in the first degree, forcible sodomy, or sodomy;

(4) Statutory sodomy in the first degree; or

(5) An attempt to commit any of the felonies listed in this subsection. In such case, the sentence of imprisonment imposed for any felony listed in this subsection or an attempt to commit any of the aforesaid shall run consecutively to the other sentences. The sentences imposed for any other offense may run concurrently.

(Emphasis added.) Section 558.026.1 thus sets forth the general rule that courts have discretion to order multiple sentences to run concurrently or consecutively, but that in the absence of specification, imposed sentences will run concurrently. That general rule is subject, however, to two expressed exceptions where sentences must be ordered to run consecutively.

The second exception requires consecutive sentences if the defendant is convicted of multiple counts of the enumerated sex crimes. See State v. Yocco, 698 S.W.3d 819, 840 (Mo. App. E.D. 2024) (“As the language of [section 558.026.1] plainly states, the trial court shall impose consecutive sentences for multiple counts of the listed offenses ․”). It is this exception that required the sentences for Counts I through VII to run consecutively, as Counts I through V charged Gilman with multiple counts of first-degree statutory sodomy, and Counts VI and VII charged Gilman with multiple counts of first-degree statutory rape. Gilman does not challenge the legal propriety of the consecutive sentences imposed on Counts I through VII. Neither party disputes that the second exception is immaterial to Count VIII because first-degree child molestation is not an enumerated offense in section 558.026.1.

The first exception requires consecutive sentences if the defendant is convicted of a sex crime enumerated in section 558.026.1 and “any offense committed during or at the same time as” an enumerated sex crime. See Yocco, 698 S.W.3d at 840 (“[T]he language of [section 558.026.1] plainly states that the trial court shall impose consecutive sentences for any offenses committed during or at the same time as the enumerated offenses.”). Gilman does not argue that his offense of first-degree child molestation as charged in Count VIII was not committed “during or at the same time as” any of the enumerated offenses charged in Counts I through VII. As the motion court found, Gilman “did not testify that the conduct stated in Count VIII was a stand-alone offense unrelated to any of the first seven (7) counts and movant would be in the best position to know that.” Instead, Gilman summarily argues, without citation to any authority, that before the sentence imposed for Count VIII could be ordered to run consecutively, it was necessary for Count VIII to have been committed “during or at the same time as” each of Counts I through VII.

Section 558.026.1 does not so state, and instead unambiguously requires a trial court to impose a consecutive sentence “for any offense committed during or at the same time as ․ the following felonies,” referring to the enumerated offenses. The General Assembly thus expressed a plain intent to require the imposition of a consecutive sentence for a non-enumerated offense committed during or at the same time as any enumerated offense. Had the General Assembly intended to condition consecutive sentencing for a non-enumerated offense on a determination that it was committed during or at the same time as every enumerated offense committed by a defendant, it could have so stated. It did not. Rather, section 558.026.1 requires a consecutive sentencing structure that ensures independent punishment for every enumerated offense and for every non-enumerated offense committed during or at the same time as any enumerated offense. Gilman's contrary interpretation of section 558.026.1 would lead to the absurd result of requiring a consecutive sentence where a non-enumerated offense is committed during or at the same time as a single committed enumerated offense, but not requiring a consecutive sentence when a non-enumerated offense is committed during or at the same time as one but not all committed enumerated offenses. This result is neither logical nor tethered to the plain intent of the sentencing scheme described in section 558.026.1. See State ex rel. Lebeau v. Kelly, 697 S.W.2d 312, 315 (Mo. App. E.D. 1985) (“Courts must give effect to statutes as they are written, and presume that the legislature intended a logical result, not an absurd or unreasonable result.”).

It follows that a required consecutive sentence is just that—consecutive to all other sentences imposed that must also be served consecutively. It is thus irrelevant whether the offense of first-degree child molestation was committed “during or at the same time as” one, several, or all the offenses charged in Counts I through VII. The resulting imposed sentences would be the same—eight ten-year sentences, with each required to be served consecutively, for a total term of imprisonment of eighty years.

We conclude that Gilman has failed to sustain his burden to prove ineffective assistance of counsel based on plea counsel's failure to object or seek clarification after the State advised the plea court that the sentence for Count VIII had to be served consecutively. An objection or effort to secure clarification would not have altered the plea court's imposition of sentence on Count VIII because the plea court properly applied section 558.026.1 to require that sentence to be served consecutively. Plea counsel is not ineffective for failing to make a non-meritorious objection. Anderson v. State, 196 S.W.3d 28, 38 (Mo. banc 2006). Rather, as the motion court found, it is likely Gilman's plea counsel “did not object” when the State noted that the sentence for Count VIII had to be served consecutively because “from his review of the state's evidence, he was aware the child molestation occurred during the rape in the bedroom which was on video.” Gilman bore the burden to establish by a preponderance of the evidence that his plea counsel's performance was deficient and that he suffered prejudice because of plea counsel's deficient performance. Rouner v. State, 735 S.W.3d 640, 646 (Mo. App. W.D. 2026). He has not sustained this burden.

Because we reject Gilman's contention that his sentence for Count VIII could only be required to be served consecutively if the offense of first-degree child molestation was committed “during or at the same time as” all of the offenses described in Counts I through VII, we also reject his contention that consecutive sentencing for Count VIII revealed a double jeopardy violation. The origin of Gilman's argument is that Count II charged him with first-degree statutory sodomy based on “placing his hand on M.M.’s genitals” while Count VIII charged him with first-degree child molestation based on “his hand being on M.M.’s genitals in the bedroom.” Gilman correctly observes that first-degree child molestation is a lesser-included offense of first-degree statutory sodomy. See State v. Putfark, 651 S.W.3d 869, 877 (Mo. App. W.D. 2022). But Gilman incorrectly assumes that because consecutive sentencing was imposed for Count VIII, the offenses charged in Counts II and VIII necessarily occurred at the same time and were thus the same offense in violation of double jeopardy. See id. at 879 (holding defendant cannot be convicted of both child molestation and statutory sodomy for the same conduct). There are numerous problems with Gilman's contention.

First, as we have explained, section 558.026.1 does not require a non-enumerated offense to be committed “during or at the same time as” every enumerated offense the defendant committed before the sentence for the non-enumerated offense must be served consecutively. It is speculative and undemonstrated that the conduct charged in Count VIII was conduct that occurred “during or at the same time as” the conduct charged in Count II. All the record establishes is that the conduct charged in Counts I through VIII occurred between a charging period of January 1, 2019, and January 22, 2021. We simply do not know from the post-conviction record which of the enumerated offenses charged in Counts I through VII were relied on by the State to support advising the plea court that consecutive sentencing for Count VIII was required by section 558.026.1. Gilman had the burden to establish the essential connection between the offenses charged in Counts II and VIII, and he has not done so. Armstrong, 734 S.W.3d at 384 (holding that post-conviction movant bears the burden to establish that the motion court's judgment constituted clear error).

Second, even if the conduct charged in Counts II and VIII occurred contemporaneously, it is not established in the post-conviction record that Counts II and VIII refer to the exact same conduct. Section 558.026.1 provides that a non-enumerated offense requires a consecutive sentence if it occurred “during or at the same time as” an enumerated offense. The term “during” is differentiated from the phrase “at the same time as” by the word “or” and thus refers to conduct over a period of time, in apposition to specific conduct at a precise point in time. See State v. Henderson, 468 S.W.3d 422, 424 (Mo. App. S.D. 2015) (holding in construing the phrase “during or at the same time as” in section 558.026.1 that the duration of an offense will often extend past completion of another crime's essential elements). In Henderson, the defendant unsuccessfully argued that his burglary was complete before he sexually assaulted a victim on the premises so that his sentence for burglary was not required by section 558.026.1 to be served consecutively with the sentence for attempted forcible sodomy because the offenses were not committed at the same time. Id. Gilman makes the reverse argument by suggesting that if the offense of first-degree child molestation was committed “at the same time as” the offense of first-degree statutory sodomy as to require consecutive sentencing, then the offenses must describe the same conduct in violation of double jeopardy. Gilman's argument ignores that a non-enumerated offense can occur “during” an enumerated offense. The record suggests that some or all of Gilman's sexual exploitation of M.M. charged in Counts I through VIII occurred during a continuous uninterrupted period of time,⁵ which means that Gilman may well have placed his hand on M.M.’s genitals on more than one occasion, supporting the separately charged offenses in Counts II and VIII. See State v. Torres, 626 S.W.3d 316, 324 (Mo. App. W.D. 2021) (“[I]f the defendant has in law and in fact committed separate crimes, multiple convictions are permissible. Therefore, if each charge is founded on different conduct or a separate mens rea is newly formed, the conduct gives rise to an additional crime.”) (quoting State v. Kamaka, 277 S.W.3d 807, 811 (Mo. App. W.D. 2009) (citation omitted)).

Finally, Gilman's double jeopardy argument is a convenient, inflammatory red herring. If double jeopardy were implicated by Counts II and VIII, that was so as of the time of the State's charging of those counts, and that was consummated when Gilman pled guilty to both Counts, regardless of the sentence imposed on Count VIII. Stated differently, the imposition of a consecutive sentence for Count VIII did not “create” a double jeopardy issue where none existed before. It is noteworthy that Gilman's amended motion does not contend that plea counsel was ineffective because he permitted Gilman to plead guilty to Counts II and VIII in violation of double jeopardy. That omission is telling and supports the inference that the conduct underlying Counts II and VIII either occurred at completely different times or occurred more than once “during” continuous conduct that gave rise to multiple charges. Regardless of the explanation, we reject outright Gilman's supposition that if consecutive sentencing was required for Count VIII, then double jeopardy was violated as a matter of law.

The motion court did not commit clear error in denying Gilman's amended motion. Gilman's point on appeal is denied.

Conclusion

The Judgment is affirmed.

FOOTNOTES

1.   The motion court's judgment identified Gilman's first name as “Johnathan.” However, the judgment of conviction and the pro se post-conviction motion indicate that Gilman's first name is “Johnathon.” We refer to Gilman using the spelling set forth in the judgment of conviction and post-conviction motion.

2.   All Rule references are to Missouri Court Rules, Volume 1--State, 2022 unless otherwise indicated.

3.   All statutory references are to RSMo 2016 as supplemented through the date each of Gilman's offenses were committed.

4.   The plea court sentenced Gilman to a ten-year sentence for Count VIII; to life sentences with eligibility for parole after twenty-five years for Counts IX and X; to ten-year sentences for Counts XI through XVIII; to ten-year sentences for Counts XIX through XXXIII; and to four-year sentences for Counts XXXIV and XXXV. The sentences imposed on Counts IX through XXXV are not at issue in this appeal.

5.   As noted, the charging period for Counts I through VIII was January 1, 2019, through January 22, 2021. Though the post-conviction record includes the transcript from Gilman's guilty plea hearing, little was developed during that hearing to permit this court to determine when the offenses charged in Counts I through VIII were committed in relation to one another. However, the motion court's Judgment referred to a videotape Gilman made while committing at least some of the sexual offenses against M.M. that were charged in Counts I through VIII. The motion court concluded that Gilman's plea counsel likely did not question the imposition of required consecutive sentencing on Count VIII because he was aware that said offense occurred “during the rape in the bedroom which was on video.” (Emphasis added.) A videotaped sexual encounter suggests conduct over a continuous uninterrupted period and thus conduct during which several discrete offenses may well have occurred, including similar offenses committed more than once.

Cynthia L. Martin, Judge

All concur.