Elmore v. State

748 S.W.2d 860, 1988 Mo. App. LEXIS 490, 1988 WL 21559
CourtMissouri Court of Appeals
DecidedMarch 14, 1988
DocketNo. 15199
StatusPublished
Cited by2 cases

This text of 748 S.W.2d 860 (Elmore 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
Elmore v. State, 748 S.W.2d 860, 1988 Mo. App. LEXIS 490, 1988 WL 21559 (Mo. Ct. App. 1988).

Opinion

FLANIGAN, Judge.

Movant Gerald A. Elmore appeals from an order denying, without an evidentiary hearing, his Rule 27.261 motion to set aside a judgment and two consecutive three-year sentences for forgery.

Movant’s first point is that he was entitled to an evidentiary hearing, and the trial court erred in ruling otherwise, because his motion adequately pleaded that his guilty pleas to both counts of the two-count information were entered through duress caused by ineffective assistance of counsel in four respects: (a) counsel did not file a motion for discovery of evidence; (b) counsel waived movant’s right to a preliminary hearing; (c) counsel advised movant to plead guilty as it was the best that counsel could do for movant; and (d) counsel did not file appropriate motions for medical treatment.

Appellate review is limited to a determination of whether the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.26(j). In order to qualify for an evidentiary hearing, movant must meet three requirements: (1) The motion must allege facts, not conclusions, warranting relief; (2) those facts must raise matters not refuted by the files and records in the case; (3) the matters complained of must have resulted in prejudice to the defendant. Ahart v. State, 732 S.W.2d 256, 257 (Mo.App.1987); Smith v. State, 719 S.W.2d 940, 941 (Mo.App.1986).

In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), the Court made several statements which apply to the instant situation. They include:

“Where, as here, a defendant is represented by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice ‘was within the range of competence demanded of attorneys in criminal cases.’ ” Id. 106 S.Ct. at 369.

“[A] defendant who pleads guilty upon the advice of counsel ‘may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in [McMann v. Rich[862]*862ardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)].”’ Id. at 369.

“[T]he two-part Strickland v. Washington [466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984) ] test applies to challenges to guilty pleas based on ineffective assistance of counsel. In the context of guilty pleas, the first half of the Strickland v. Washington test is nothing more than a restatement of the standard of attorney competence already set forth in Tollett v. Henderson [411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235], supra, and McMann v. Richardson, supra. The second, or ‘prejudice,’ requirement, on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 370. (Emphasis added.)

In Hill v. Lockhart, supra, the prisoner claimed that counsel gave him erroneous advice as to his parole eligibility date under the sentence agreed to in the plea bargain. The prisoner did not plead that if counsel had correctly informed him about his parole eligibility date he would have pleaded not guilty and insisted on going to trial. Petitioner also did not plead any special circumstances that might support the conclusion that he placed particular emphasis on his parole eligibility in deciding whether or not to plead guilty. The court held that these pleading deficiencies amounted to a failure to allege “prejudice” of the kind necessary to satisfy the second half of the Strickland v. Washington test, and that the lower court properly denied relief without granting the prisoner an evidentiary hearing.

The challenged guilty pleas were entered on October 18, 1985, before Judge Donald Bonacker. At that hearing movant was represented by attorney Van Arkel. The 19-page transcript of the guilty plea hearing consists primarily of a colloquy between Judge Bonacker and movant.

Among statements made by movant at the guilty plea hearing are the following: “I am 31 and attended school to the ninth grade. I have had a heart problem since birth. At this hearing I am not under the influence of drugs or alcohol, nor was I under their influence at the time of the offenses. I am satisfied with Mr. Van Ark-el’s services in this case. Mr. Van Arkel has not done anything that I wish he had not done in representing me, and Van Ark-el has not failed to do anything that I wanted him to do. The only promises made to me in entering my guilty pleas are contained in the plea bargain. My willingness to plead guilty does not result from any force or threat to myself or to my loved ones, nor does it result from any promise or discussion we have not already talked about today. My pleas of guilty are purely voluntary on my part.”

During the guilty plea hearing, Judge Bonacker explained to movant in detail his rights as a criminal defendant, and movant stated that he understood each of those rights. The court accepted the pleas of guilty and found that they were freely, voluntarily, and intelligently made, and were made with a full understanding of the charges, the right to trial, including jury trial, and the consequences of pleading guilty. The court also found that there was a factual basis for the pleas and believed that movant was guilty beyond a reasonable doubt on both counts.

The court then stated that he would order a pre-sentence investigation and, at the time of sentencing, would advise movant whether the court would accept or reject the plea bargain agreement and that if it was rejected movant would have the opportunity to enter a plea of not guilty to each count. The following then occurred:

“MR. VAN ARKEL: Your Honor, we understood that we would proceed on today. In particular, Mr. Elmore is concerned that he’s not getting any medical —adequate medical attention in jail. He’s interested in getting out of jail so he can go see his doctor. That’s part of why we proceeded this morning.
[863]*863THE COURT: Have you ever had a presentence investigation that’s ever been run on you?
MR. ELMORE: No, Your Honor.
THE COURT: All right. What would you do if you were released from jail today? Where would you go?
MR. ELMORE: Well, I’m going to get me a place here in Springfield in the first place, then go find my doctor, but I’m going to stay in Springfield.”

The court then cancelled the presentence investigation, accepted the plea bargain agreement, ordered that the probation be unsupervised, and entered judgment and sentences in accordance with the plea bargain agreement.

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Related

Phillips v. State
792 S.W.2d 23 (Missouri Court of Appeals, 1990)
Davis v. State
754 S.W.2d 593 (Missouri Court of Appeals, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
748 S.W.2d 860, 1988 Mo. App. LEXIS 490, 1988 WL 21559, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elmore-v-state-moctapp-1988.