Bauer v. State

926 S.W.2d 188, 1996 Mo. App. LEXIS 1087, 1996 WL 335390
CourtMissouri Court of Appeals
DecidedJune 19, 1996
DocketNo. 20664
StatusPublished
Cited by8 cases

This text of 926 S.W.2d 188 (Bauer v. State) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bauer v. State, 926 S.W.2d 188, 1996 Mo. App. LEXIS 1087, 1996 WL 335390 (Mo. Ct. App. 1996).

Opinion

PARRISH, Judge.

Patrick Bauer (movant) pleaded guilty to the class C felony of assault in the second degree. § SOS.OOO.IXS).1 He was sentenced to seven years’ imprisonment. § 558.011.1(3). After transfer to the Department of Corrections, movant filed a motion for post-eonviction relief as permitted by Rule 24.035. The trial court denied the motion without an evi-dentiary hearing.

Movant contends in his first point on appeal that he was entitled to an evidentiary hearing. His motion alleged that he received ineffective assistance of counsel in the underlying criminal ease. Movant asserts his claim that “trial counsel erroneously advised him that he would receive 120-day callback in exchange for his plea of guilty” was not refuted in the record of the guilty plea or sentencing hearing; that, therefore, his plea of guilty was not made voluntarily and intelligently.

The standard for determining whether movant is entitled to an evidentiary hearing requires movant plead facts, not conclusions, which if true would entitle him to relief.... Reeder v. State, 712 S.W.2d 431, 432[1] (Mo.App.1986). Movant is entitled to an evidentiary hearing on the issue of the voluntariness of his plea where the record of the guilty plea proceeding does not conclusively show his plea was made voluntarily or intelligently. Id. at 433 [6, 7]. Once a guilty plea results, adequacy of representation bears only on whether the plea was made voluntarily or knowingly. Wade v. State, 698 S.W.2d 621, 622[2] (Mo.App.1985).

Sederes v. State, 776 S.W.2d 479, 480 (Mo.App.1989).

[190]*190Movant’s reference to a “120-day callback” is directed to provisions of § 559.115.2. The applicable part of the statute states:

A circuit court only upon its own motion and not that of the state or the defendant shall have the power to grant probation to a defendant anytime up to one hundred twenty days after he has been delivered to the custody of the department of corrections but not thereafter.

Movant filed a written Petition to Enter Plea of Guilty. It is a six-page pleading. Movant and his attorney signed each page. The petition acknowledged movant’s understanding of various rights relative to his criminal charge and his right to a trial, as well as his understanding of the nature of his plea of guilty. Paragraph 10 of the pleading states, “I understand the plea bargain agreement to be:” followed by blank lines to be completed by the criminal defendant.2 The blank lines on movant’s pleading were completed as follows: “Open plea of guilty. My attorney will request the Court to retain jurisdiction of this case pursuant to § 559.115.”

Paragraph 10 continues after the blank lines:

I understand that if this is an open plea (no negotiated plea) that a pre-sentence investigation will be prepared by the Department of Probation and Parole. I understand that the Court is not bound by any recommendation by the probation officer. Further, that the Court may grant or deny probation in its discretion and may impose any sentence that falls within the range of punishment. If anyone else made any promises or suggestions, except as noted in this paragraph I know that he/she had no authority to do it. I know that the sentence I will receive is solely a matter within the control of the judge. I hope to receive leniency, but I am prepared to accept any punishment permitted by law which the Court sees fit to impose.

Nowhere else in movant’s written petition to enter a guilty plea is there any reference to § 559.115, nor is there any explanation of it.

During the course of movant’s guilty plea hearing, the text of § 559.115 was not addressed. At the beginning of the guilty plea hearing, movant’s attorney acknowledged that movant was aware the prosecuting attorney would recommend that the court impose a seven-year sentence upon accepting mov-ant’s plea of guilty. Movant’s attorney further advised the court “that [the prosecuting attorney] was aware of the fact that I would request the Court to retain jurisdiction of this case under Section 559.115.”

At the end of the guilty plea hearing, after granting allocution and imposing sentence and after examining movant as prescribed by Rule 29.07(b)(4), the trial court advised mov-ant’s attorney that it had taken under advisement his request to have movant “sentenced under the 120-day callback.”

Movant’s amended Rule 24.035 motion alleges:

Counsel did not advise movant that the Court was not required to honor his request for one-hundred twenty (120) day call back pursuant to Section 559.115 RSMo, especially in the context of an open plea. Counsel did erroneously advise mov-ant he would receive one-hundred twenty (120) day call back in exchange for his plea of guilty in case no. CR494-129FX. Mov-ant relied on counsel’s erroneous advice in entering his plea.
Movant was prejudiced in that he has not received 120 day call back as he was advised. Had movant not been so advised, there is a reasonable probability that mov-ant would not have pleaded (pled) guilty and insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985).

In State v. Driver, 912 S.W.2d 52 (Mo. banc 1995), the court held that specific inquiries are required in sentencing hearings in order to conclusively refute specific claims of ineffective assistance of counsel that may later be asserted in post-conviction motions. Although Driver is a Rule 29.15 case, the principles announced therein are apropos to [191]*191Rule 24.035 cases. Responses to broad general questions asked in guilty plea or sentencing hearings concerning whether counsel did the things a defendant wanted him or her to do, or faded to do anything the defendant requested, do not, standing alone, refute all allegations of deficiencies that may be raised in subsequent post-conviction motions insofar as the allegations affect voluntariness of a guilty plea.

Nothing in the record on appeal demonstrates that movant was made aware that by the terms of § 559.115, he had no right to request consideration for probation within 120 days after his commitment to the Department of Corrections; that the trial court could not be compelled to grant probation during that time by reason of negotiations directed toward reaching a disposition in a criminal case.

The state suggests that the motion court’s findings that there was no negotiated plea agreement, and that movant was advised at his guilty plea hearing that the trial court was not bound by any recommendation for probation, refute movant’s claim that he was told he would receive a “120-day callback.” The fallacy of this argument is that nothing appears in the record of the guilty plea hearing that refers to the relief permitted by § 559.115 as “probation.” What “120-day callback” meant was never explained to mov-ant.

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Cite This Page — Counsel Stack

Bluebook (online)
926 S.W.2d 188, 1996 Mo. App. LEXIS 1087, 1996 WL 335390, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bauer-v-state-moctapp-1996.