Cole v. State

850 S.W.2d 406, 1993 Mo. App. LEXIS 505, 1993 WL 102239
CourtMissouri Court of Appeals
DecidedApril 8, 1993
DocketNo. 18177
StatusPublished
Cited by4 cases

This text of 850 S.W.2d 406 (Cole 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
Cole v. State, 850 S.W.2d 406, 1993 Mo. App. LEXIS 505, 1993 WL 102239 (Mo. Ct. App. 1993).

Opinions

GARRISON, Judge.

This appeal is from an order dismissing appellant’s Amended Motion To Vacate, Set Aside, Or, Correct Sentence Under Rule 24.-0351 without an evidentiary hearing. We affirm the court’s ruling.

Appellant pleaded guilty to the Class B felony offense of trafficking in the second degree pursuant to § 195.223.2 There was no plea bargain as such, but in exchange for the guilty plea the State agreed to a reduced bond and further requested deferment of sentencing for at least ninety days, for the purpose of determining appellant’s cooperation with a federal agency, before making final sentencing recommendations. The trial court accepted the guilty plea, found that it was voluntary, ordered a pre-sentence investigation, reduced appellant’s bond as requested, and set sentencing three months later.

The transcript of the guilty plea reveals that appellant acknowledged there was no plea bargain with the State; the only representations made by the State were to rec[408]*408ommend bond reduction and to take into consideration whatever assistance appellant might give the federal agency; that he had not been told or led to believe that any certain punishment would be imposed in exchange for his plea; he had no reason at all to enter the plea of guilty other than the fact that he was guilty as charged; and he had no questions concerning his rights or the consequences of his plea. In the presence of appellant, the trial court stated its understanding of the State’s position on sentencing by saying that “some place down the road, depending on what occurs, there may or there may not be a recommendation.”

In an effort to comply with Rule 24.-02(b)(1)3, the court made inquiry of the assistant prosecutor concerning the range of punishment. The response was “five to 10, Judge, this is a Class B felony.” In fact, this was incorrect in that the correct maximum punishment was fifteen years. Section 558.011.1(2). Apparently the misstatement was not corrected by either appellant’s counsel or the court.

Appellant was eventually sentenced to ten years in the Department of Corrections, execution of sentence was suspended, and he was placed on probation for five years. Later, his probation was revoked and the ten-year sentence was ordered to be executed. Appellant thereafter filed his pro se Motion To Vacate, Set Aside Or Correct The Judgment Or Sentence pursuant to Rule 24.035, which was later amended by court-appointed counsel in a timely fashion. The court dismissed the Amended Motion To Vacate on the motion of respondent, without evidentiary hearing, and filed its Findings of Fact and Conclusions of Law. This appeal followed.

In his sole point on this appeal, appellant contends the court erred in overruling his motion for postconviction relief without an evidentiary hearing because he pleaded facts, not refuted by the record, showing that he was advised by his counsel of an incorrect range of punishment which, in turn, prejudiced him by causing his plea of guilty to be entered in an uninformed and unknowing manner. In the same point, he alleges that the failure to inform him of the correct maximum range of punishment violated Rule 24.02(b)(1). The sole issue presented, therefore, is whether the court erred in denying appellant’s motion without an evidentiary hearing. Our review is limited to the issue raised by appellant in his point relied on. McCoo v. State, 844 S.W.2d 565, 567-68 (Mo.App.1992).

In order to be entitled to an eviden-tiary hearing on a Rule 24.035 motion, the movant must meet three requirements: (1) the motion must allege facts, not conclusions, warranting relief; (2) the facts alleged must raise matters not refuted by the files and record in the case; and (3) the matters complained of must have resulted in prejudice to movant. Broyles v. State, 785 S.W.2d 685, 687 (Mo.App.1990); Troupe v. State, 766 S.W.2d 722, 723 (Mo.App.1989); Chapman v. State, 720 S.W.2d 17, 18 (Mo.App.1986).

In his Amended Motion, appellant “asserts that had he been properly advised of the range of punishment he would not have entered a plea of guilty but would instead have proceeded to trial.” Obviously, the only information contained in the record concerning range of punishment was incorrect. The question, however, is whether appellant’s Motion and Amended Motion are sufficient to establish entitlement to an evidentiary hearing under the tests outlined above. We conclude that they are not.

The record is clear that appellant pleaded guilty with no plea agreement concerning the punishment to be imposed, with no belief that any certain punishment would be imposed, and with the belief that the [409]*409range of punishment included the term to which he was ultimately sentenced. The motion court, in its Findings of Fact and Conclusions of Law, found:

This Court finds that Movant was not prejudiced by the prosecutor’s misstatement of the range of punishment. The Court notes that Movant pled guilty under a plea agreement providing that the State would not make a recommendation as to the length of the prison term to be imposed. Movant stated that he understood that there was no such recommendation on behalf of the State. Movant also stated that he had not been promised that he would receive a certain punishment if he pled guilty. The Court notes that the prosecutor, at sentencing, stated the range of punishment as from five to ten years in the Missouri Department of Corrections. The Court also notes that Movant believed he was facing a prison term of as much as ten years, and subsequently received a prison term of ten years. This sentence was within the parameters expected by Movant. The Court finds that Movant was not prejudiced by the fact that the maximum sentence possible was fifteen years, rather than ten years.

Under the facts of this particular case, we agree with the motion court that there was no prejudice to appellant in being advised of the incorrect range of punishment when the sentence actually imposed was within both the correct range of punishment as well as that which appellant was told applied. Certainly, appellant stated no facts or special circumstances in his Amended Motion to support the conclusory allegation that he would have proceeded to trial if he had been properly advised about the range of punishment. This type of showing is required to demonstrate prejudice. Hill v. Lockhart, 474 U.S. 52, 59-60, 106 S.Ct. 366, 370-371, 88 L.Ed.2d 203, 210-11 (1985).

Appellant relies principally on three cases, to-wit: Wiles v. State, 812 S.W.2d 549 (Mo.App.1991); Perryman v. State, 755 S.W.2d 598 (Mo.App.1988); and Murrain v. State, 714 S.W.2d 177 (Mo.App.1986). All of them are distinguishable from the facts here. The Wiles and Perry-man cases each involved a situation where the defendant pleaded guilty under a plea agreement after being told the maximum punishment was greater than was actually the case. Therefore, they each could have thought the risk of going to trial was greater than it actually was. In the Murrain case the defendant was not informed by the court concerning the minimum punishment, but did receive that information from counsel. In the instant case, there is nothing to indicate that the incorrect information about possible maximum punishment could have induced the guilty plea.

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Related

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263 S.W.3d 744 (Missouri Court of Appeals, 2008)
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257 S.W.3d 671 (Missouri Court of Appeals, 2008)
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212 S.W.3d 228 (Missouri Court of Appeals, 2007)
State v. Holloway
877 S.W.2d 692 (Missouri Court of Appeals, 1994)

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Bluebook (online)
850 S.W.2d 406, 1993 Mo. App. LEXIS 505, 1993 WL 102239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cole-v-state-moctapp-1993.