DeClue v. State

3 S.W.3d 395, 1999 Mo. App. LEXIS 1971, 1999 WL 787529
CourtMissouri Court of Appeals
DecidedOctober 5, 1999
DocketNo. ED 75446
StatusPublished
Cited by11 cases

This text of 3 S.W.3d 395 (DeClue 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
DeClue v. State, 3 S.W.3d 395, 1999 Mo. App. LEXIS 1971, 1999 WL 787529 (Mo. Ct. App. 1999).

Opinion

MARY K. HOFF, Judge.

Richard DeClue (Movant) appeals from the motion court’s judgment denying his Rule 24.035 post-conviction relief motion after an evidentiary hearing. State now concedes there was an insufficient factual basis for Movant’s guilty plea to the felony resisting arrest charge. We reverse and remand for the court to vacate and set aside Movant’s conviction for felony resisting arrest due to the insufficient factual basis for the plea.

Movant was charged by a second amended information with the class D felony of resisting arrest, Section 575.150 RSMo Cum.Supp.1996, and as a prior and persistent offender, Sections 558.016 RSMo 1994 and 557.036.4 RSMo Cum. Supp.1996. Movant entered a plea of guilty and was sentenced to a term of four and one-half years in the Department of Corrections.

Movant filed a pro se Rule 24.035 motion to vacate, set aside or correct the judgment or sentence, which was later amended by counsel. After an evidentiary hearing, the motion court1 entered its Findings of Fact, Conclusions of Law, Judgment and Order (judgment) denying Movant’s Rule 24.035 motion.

In its judgment, the motion court found in relevant part that: at the plea hearing, the judge “read all of the elements of the charge of felony resisting arrest and Mov-ant admitted his guilt”; “Movant testified at the evidentiary hearing that he knew he was originally charged with a felony assault and he knew he was pleading guilty to felony resisting arrest”; and “Movant was informed of the facts of his case and he made a knowing and voluntary plea.” The motion court noted a plea must not be entered unless it has a factual basis. Moreover, the motion court stated, the plea’s factual basis need not be established by the pleading defendant’s testimony but may be established by facts recited by the judge or prosecutor that are understood by the defendant at the time of the plea. The motion court ultimately concluded “Movant has failed to establish any basis in law to have his sentence vacated, set aside or corrected.” Movant appeals.

On appeal, Movant argues the motion court erred in denying his Rule 24.035 post-conviction relief (PCR) motion because: (1) Movant received ineffective assistance of counsel in violation of the United States and Missouri Constitutions which rendered his guilty plea unknowing, unintelligent, and involuntary; (2) there was no factual basis for Movant’s plea of guilty to the class D felony of resisting arrest; and (3) the court erroneously sentenced Movant in excess of the statutory maximum for his offense. Because we find [397]*397Movant’s second point dispositive of this appeal, we will not address Movant’s other two points.

In support of his second point, Movant contends the records of his plea and evidentiary hearing do not establish that he was being arrested for the charge of felony assault, which he argues is required for his conviction of felony resisting arrest. For the first time, on appeal State concedes, “In view of the fact that the factual basis for [Movant’s] plea of guilty to felony resisting arrest[] did not state whether [Movant] was arrested for a felony or a misdemeanor, the factual basis was insufficient. Therefore, [Movant’s] conviction must be vacated and set aside.” We agree.

Our review of the motion court’s findings and conclusions on a Rule 24.035 motion is limited to determining whether those findings and conclusions are clearly erroneous. Rule 24.035(k). “[I]n other words, after a review of the whole record, are we left with the definite and firm impression a mistake has been made?” State v. Taylor, 929 S.W.2d 209, 224 (Mo. banc 1996), cert. denied, 519 U.S. 1152, 117 S.Ct. 1088, 137 L.Ed.2d 222 (1997).

Rule 24.02(e) states, “The court shall not enter a judgment upon a plea of guilty unless it determines that there is a factual basis for the plea.” Therefore, the plea court must “determine facts which defendant admits by his plea and that those facts would result in defendant being guilty of the offense charged.” Hoskin v. State, 863 S.W.2d 637, 639 (Mo.App. E.D.1993). If the facts presented to the court during a proceeding on a guilty plea do not establish the commission of the offense, the court should reject the guilty plea. State v. Morton, 971 S.W.2d 335, 340 (Mo.App. E.D.1998). A factual basis for a plea of guilty is established if the defendant understands the facts presented at the guilty plea proceeding. Id. The defendant should “express[ ] an awareness of the nature and elements of the charge to which he or she pleads guilty.” Vann v. State, 959 S.W.2d 131, 134 (Mo.App. S.D.1998).

Here, Movant was charged with felony resisting arrest under Section 575.150 RSMo Cum.Supp.1996, which states the following in relevant part:

1. A person commits the crime of resisting arrest or interfering with arrest, if, knowing that a law enforcement officer is making an arrest, or attempting to lawfully detain or stop an individual or vehicle, ... for the purpose of preventing the officer from effecting the arrest, ... the person:
(1) Resists the arrest ... of such person by using or threatening the use of violence or physical force or by fleeing from such officer; ...
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4. Resisting, by means other than flight, or interfering with an arrest for a felony is a class D felony; otherwise, resisting or interfering with arrest is a class A misdemeanor.

Under Section 575.150 RSMo Cum.Supp. 1996, the crime of resisting arrest may be either a felony or a misdemeanor. “[R]e-sisting arrest is a felony offense only if the underlying offense is a felony and the resistance is accomplished by a means other than flight.” State v. Furne, 642 S.W.2d 614, 616 (Mo. banc 1982); State v. Burton, 801 S.W.2d 380, 381 (Mo.App. W.D.1990); State v. Polzin, 859 S.W.2d 254, 255-56 (MoApp. S.D.1993). The relevant inquiry is not whether defendant is guilty of the charge for which he was arrested, but whether the arresting officer contemplated making a felony arrest. State v. Merritt, 805 S.W.2d 337, 339 (Mo.App. E.D.1991).

In the case before us, we find the court clearly erred in accepting Movant’s plea of guilty to felony resisting arrest because the court failed to establish, a proper factual basis for that offense, in violation of Rule 24.02(e). During the presentation of the factual basis for the plea of guilty to [398]*398felony resisting arrest at the plea hearing, the following occurred in relevant part:

THE COURT: All right. By pleading guilty are you admitting first Count I on or about the 21st day of November, 1996, at 1501 Hawkins, in St.

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Bluebook (online)
3 S.W.3d 395, 1999 Mo. App. LEXIS 1971, 1999 WL 787529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/declue-v-state-moctapp-1999.