Opinion
No. ED 81171
April 15, 2003
Appeal from Circuit Court of Cape Girardeau County, Hon. William L. Syler, Jr.
Rubin Weeks, Pro Se, for Appellant.
John M. Morris and Nicole E. Gorovsky, for Respondent.
Rubin Weeks appeals the denial of his post-conviction motion for DNA testing without an evidentiary hearing. We affirm.
I. BACKGROUND
In 1992, Weeks pled guilty to charges of kidnapping and forcible rape. After the State's description of the crimes at the plea hearing, Weeks admitted that he "did what they said I did" and agreed that, without question, everything that the State charged was true and correct. Weeks agreed that he followed the victim as she drove home from work and used a butcher knife to force her out of her car and into his. He admitted that he ordered the victim to take off her clothes and that he sodomized her in the car. Weeks admitted that he then drove her to a barn, where he raped her, sodomized her again and left her bound with duct tape.
In exchange for his guilty pleas on the kidnapping and rape counts, the State dismissed several other counts and agreed to recommend concurrent sentences. After the court accepted the pleas, Weeks was sentenced to concurrent terms of thirty years and life imprisonment. Weeks's post-conviction motion under Rule 24.035 and his state and federal petitions for habeas relief were all denied. See Weeks v. Bowersox, 119 F.3d 1342 (8th Cir. 1997) (en banc) (affirming denial).
Last year, Weeks filed a pro se motion for DNA testing. He sought testing of certain "DNA, blood, saliva, semen and hair" that would prove his innocence. He claimed that this evidence was secured in relation to the crime and that the technology for testing was not available at the time he went before the trial court. Weeks alleged that identity was at issue in this case — presumably based on his claim that there are "eyewitnesses" who could have testified that he was in another state at the time this crime was committed. The motion court ordered the State to show cause why the motion should not be granted. After receiving the State's opposition, the court determined that the files and records of the case conclusively showed that Weeks was not entitled to relief and denied his motion without an evidentiary hearing.
Weeks's motion was brought and disposed of under Rule 29.17, which was vacated before its effective date. Motions for DNA testing are now cognizable under section 547.035 RSMo Cum. Supp. 2001, to which all of our statutory citations refer.
II. DISCUSSION
Our review of a motion for DNA testing under section 547.035 is the same as our review of other post-conviction proceedings. Snowdell v. State, 90 S.W.3d 512, 513-14 (Mo.App.E.D. 2002). We are limited to determining whether the motion court's findings and conclusions are clearly erroneous. Id. We will reverse for clear error only if, after reviewing the entire record, we are left with the definite and firm impression that a mistake has been made. Id.
To be entitled to post-conviction DNA testing under section 547.035, the movant must allege facts demonstrating that (1) there is evidence upon which DNA testing can be conducted; (2) the evidence was secured in relation to the crime; (3) the evidence was not previously tested by the movant because (a) the technology was not available at the time of trial, (b) the movant and counsel were not aware that the evidence existed at the time of trial, or (c) the evidence was unavailable; (4) identity was an issue in the trial; and (5) a reasonable probability exists that the movant would not have been convicted if exculpatory results had been obtained through DNA testing. Section 547.035.2. The prosecutor will be ordered to show cause why the motion should not be granted unless it appears from the motion or the record that the movant is not entitled to relief, in which case no hearing will be held and the motion will be denied. See sections 547.035.4 and 547.035.6.
Weeks was not entitled to relief. First, identity was not an issue in the trial. See section 547.035.2(4). Because he pled guilty, there was no trial. By admitting that he did everything with which he was charged, his identity as the perpetrator — and every other issue — was conceded. Likewise, his plea makes it difficult, if not impossible, for Weeks to demonstrate a reasonable probability that he would not have been convicted. See section 547.035.2(5). Defendants who plead guilty are not entitled to relief under this statute.
Moreover, even if his guilty pleas did not preclude relief, Weeks cannot show a legitimate reason why he did not previously test this evidence. See section 547.035.2(3)(a)-(c). The record contains an application for a search warrant to collect blood samples from Weeks, which reveals that the evidence Weeks seeks to have tested now was available before he pled, that he and his counsel knew about it and that it was able to be tested. See section 547.035.2(3)(a)-(c).
In sum, we are not left with the definite and firm impression that a mistake has been made. The motion court did not clearly err when it denied Weeks's motion for DNA testing without an evidentiary hearing. His point on appeal is denied.
III. CONCLUSION
The judgment is affirmed.
Crandall, P.J. and Sullivan, J. concur.