Conger v. State

398 S.W.3d 915, 2013 WL 2181244, 2013 Mo. App. LEXIS 597
CourtMissouri Court of Appeals
DecidedMay 21, 2013
DocketNo. ED 98557
StatusPublished
Cited by10 cases

This text of 398 S.W.3d 915 (Conger 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
Conger v. State, 398 S.W.3d 915, 2013 WL 2181244, 2013 Mo. App. LEXIS 597 (Mo. Ct. App. 2013).

Opinion

ROY L. RICHTER, Judge.

Jason Conger (“Movant”) appeals from the motion court’s denial, after an eviden-tiary hearing, of his Rule 24.035 post-conviction relief motion. Movant pled guilty to first-degree robbery, in violation of Section 569.020; armed criminal action, in violation of Section 571.015; second-degree burglary, in violation of Section 569.170; stealing over $500, in violation of Section 570.030; and resisting arrest, in violation of Section 575.150. Movant was sentenced to a total of fifteen years’ imprisonment. We affirm.

I. Background

The State charged Movant with first-degree robbery and armed criminal action (Case No. 0811-CR00378-01); resisting arrest (Case No. 0811-CR02569-01); and second-degree burglary and stealing over $500 (Case No. 0811-CR00698-01). On May 28, 2009, Movant pled guilty to all charges.

At the plea hearing, the plea court explained to Movant his right to a jury trial, and Movant affirmed that he understood those rights and the consequences of his decision to plead guilty. After the prosecutor reviewed for Movant the nature and elements of the charges against him and the ranges of punishment, Movant assured the court that no one had threatened, coerced, or promised him anything, such as a lenient sentence, to induce him to plead guilty. Movant affirmed that he was pleading guilty to first-degree robbery, armed criminal action, resisting arrest, second-degree burglary, and stealing because he was “in fact actually guilty.” Movant testified that, on January 17, 2008, he entered Medicine Shoppe, displayed a nine-millimeter handgun, and forcibly stole hydroeodone. Movant also stated that, on September 4, 2007, he entered Wharf Pharmacy “through the rafters” and stole prescription medication. Finally, Movant explained that, while driving on January 17, 2008, Movant knew that a law enforcement officer was attempting to effect a lawful stop, but Movant fled the officer at a speed of 120 miles per hour. After finding that Movant had entered his guilty plea freely and voluntarily, the plea court accepted Movant’s plea and found Movant “guilty of the charges beyond a reasonable doubt.”

At the sentencing hearing on July 17, 2009, the court sentenced Movant to concurrent sentences of twelve years’ imprisonment for first-degree robbery and armed criminal action, to run consecutively with concurrent sentences of three years’ imprisonment for second-degree burglary, stealing, and resisting arrest, for a total of fifteen years’ imprisonment. The sentencing court then advised Movant of his post-conviction rights and questioned Movant about the assistance he received from plea counsel.

When the sentencing court asked Mov-ant whether he was completely satisfied with plea counsel’s services, Movant answered, “In some ways, yes; others, there was more evidence I would like that would have been out there ... Just — just a wit[918]*918ness, hours of work, right now I can’t think much.” In an apparent effort to understand Movant’s comment, the plea court asked Movant a series of specific questions relating to counsel’s representation. Movant responded that his attorney-explained the charges to him, investigated his cases fully, discussed with him any possible defenses he might have to the charges, interviewed and investigated any witnesses who might have helped with his defense, and did everything Movant asked of them. Movant stated that he had no complaint, other than what he had previously stated, regarding the services provided by counsel. The sentencing court concluded: “Court finds no probable cause on each of these three cases that the defendant has not been effectively represented by counsel.”

Movant filed a Rule 24.035 motion for post-conviction relief, which counsel later amended. In his motion, Movant alleged that his plea counsel was ineffective for “coercing him into pleading guilty because [Movant] could not pay plea counsel’s legal fees for trial.” Movant also claimed that plea counsel was ineffective for “advising [Movant] to plead guilty without investigating [Movant’s] defense of involuntary drugged condition....” The motion court found that Movant’s claims were refuted by the record and denied the Rule 24.035 motion without an evidentiary hearing.

On October 18, 2011, in Conger v. State, 356 S.W.3d 217 (Mo.App. E.D.2011), this Court remanded Movant’s financial conflict of interest claim for an evidentiary hearing. An evidentiary hearing was held on March 14, 2012. Movant’s plea counsel, Lorna Huber and Patrick Coyne testified, and Movant’s testimony was admitted through a deposition. The motion court filed its Findings of Fact, Conclusions of Law, and Order on May 2, 2012, denying Movant relief. This appeal follows.

II. Discussion

In his sole point on appeal, Movant alleges the motion court clearly erred in denying his motion for post-conviction relief after a hearing where Movant proved facts showing plea counsel’s desire to obtain payment for his legal services at trial conflicted with Movant’s interest in persisting in his plea of not guilty, taking his case to a jury and avoiding a criminal conviction. Movant claims this conflict of interest prejudiced him, in that plea counsel pressured Movant to accept the guilty plea because Movant could not afford a trial. Movant contends plea counsel’s actions deprived him of his right to persist in his plea of not guilty, his right to conflict-free counsel, his right to effective assistance of counsel, his right to a fair trial, and his right to due process of law, in violation of the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and Article I, Sections 10 and 18(a) of the Missouri Constitution. Further, Movant alleges had plea counsel not coerced him, Movant would not have pled guilty and would have insisted on a trial. He claims plea counsel was ineffective, and such ineffectiveness rendered Movant’s guilty plea unknowing, unintelligent and involuntary.

A. Standard of Review

Our review of the denial of a post-conviction relief motion under Rule 24.035 is limited to a determination of whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 24.035(k). As the motion court’s findings and conclusions are presumed correct, they will be deemed clearly erroneous only if, upon a review of the record, the appellate court is left with a definite and firm impression that a mistake has been made. Roberts v. State, 276 [919]*919S.W.3d 833, 835 (Mo. banc 2009). The movant bears the burden of proving by a preponderance of the evidence that the motion court clearly erred in its ruling. Cooper v. State, 356 S.W.3d 148, 152 (Mo. banc 2011).

B. Motion Court did not Err in Denying Claim that Trial Counsel had Conflict

To prevail on a claim of ineffective assistance of counsel, a movant must show the following: (1) counsel’s performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney; and (2) counsel’s deficient performance prejudiced the movant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

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Bluebook (online)
398 S.W.3d 915, 2013 WL 2181244, 2013 Mo. App. LEXIS 597, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conger-v-state-moctapp-2013.