Fogle v. State

201 S.W.3d 110, 2006 Mo. App. LEXIS 1396, 2006 WL 2690154
CourtMissouri Court of Appeals
DecidedSeptember 21, 2006
DocketNo. 26969
StatusPublished

This text of 201 S.W.3d 110 (Fogle 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
Fogle v. State, 201 S.W.3d 110, 2006 Mo. App. LEXIS 1396, 2006 WL 2690154 (Mo. Ct. App. 2006).

Opinion

JOHN E. PARRISH, Judge.

George Fogle (movant) pleaded guilty, pursuant to a negotiated plea agreement, to the class C felony of stealing by deceit. See § 570.030, RSMo Cum.Supp.1998. He was sentenced to seven years’ imprisonment to run concurrent with other sentences. Following his incarceration, mov-[112]*112ant filed a motion for post-conviction relief as permitted by Rule 24.035. Counsel was appointed and an amended motion filed. An evidentiary hearing was held. Findings of fact and conclusions of law were filed and judgment was entered denying the motion. This court affirms.

Movant presents one point on appeal. He contends that the motion court erred in denying his Rule 24.035 motion because he received ineffective assistance of counsel. He argues that the counsel who represented him in the underlying criminal case “misadvised [him] as to the effect of his guilty plea on his parole eligibility when counsel told [him] that a concurrent seven year sentence ‘would not hurt him,’ but in fact his earliest release date was extended from 2005 to 2008 as a result of the plea.” Movant asserts that this rendered his plea of guilty involuntary; that “without this misadvise, [he] would have chosen to go to trial rather than plead guilty.”

The motion court found:

Movant was charged by indictment with stealing by deceit. A substitute information was subsequently filed alleging one count of stealing by deceit and one count of forgery. On October 5, 2001, ... movant entered a plea of guilty to the stealing charge and after waiving a pre-sentence investigation was sentenced pursuant to the negotiated plea agreement to 7 years [sic] incarceration to run concurrently with any other sentences. The forgery count was dismissed ....

It concluded:

The issue presented is whether counsel affirmatively misadvised movant of a collateral consequence of pleading guilty and whether movant relied on that misrepresentation in deciding to plead guilty.
The evidence reflects that movant was represented in this matter by Joseph Passanise, who met with movant and conducted all negotiations and was present at the time of the plea. Movant advised his attorney during the initial consultation that because of his prior remands he believed that he would be required to serve 80% of any sentence he received on this Greene County case. Movant testified he told counsel that he had been to DOC in 1976, 1987 and gain [sic] in 2001. He was serving the 2001 sentence while awaiting disposition of this Greene County case.
The best offer that counsel could obtain from the state was for 7 years on the stealing charge concurrent with whatever else he was serving. Counsel testified that he never promised nor told movant how much time he would have to serve under this plea offer. He denied ever telling movant that the 7 year sentence would not hurt him any. According to State’s exhibit 1A, counsel relayed the 7 year offer to movant in writing on September 16, 2001 with a warning that it would expire if not accepted by September 25, 2001. It also contained a reminder from counsel that, “We have no idea how much time you will do with a 7 year sentence.”

The motion court further found that a letter to movant from movant’s trial counsel dated October 9, 2001, confirmed the terms of the plea agreement pursuant to which movant pleaded guilty. The motion court’s findings stated that information obtained from the Department of Corrections prior to when movant pleaded guilty revealed that movant’s conditional release date was November 14, 2005, and his maximum release date was March 14, 2008. The letter stated, ‘We believe the 7 year sentence running concurrent with your existing sentences will not hurt you considering the fact that you are looking at staying in prison until 2005.”

[113]*113The motion court observed that an amended information was to be filed if movant had chosen not to plead guilty that “would cause [movant] to face enhanced sentencing based on his prior record should the case go to trial.” The motion court found that movant’s trial counsel was employed for the specific purpose of getting the best deal he could for movant; that this was what occurred. The motion court concluded “that [cjounsel’s attempts to provide predictions to [movant] about the consequences of his plea simply was [sic] not the basis for movant’s pleading guilty.”

This court’s review is limited to a determination of whether the findings of fact and conclusions of law of the trial court are clearly erroneous. Rhodes v. State, 157 S.W.3d 309, 312 (Mo.App.2005). See Rule 24.035(k). “Findings and conclusions are clearly erroneous if, after a review of the entire record, the court is left with the definite and firm impression that a mistake has been made.” Schuerenberg v. State, 98 S.W.3d 922, 923 (Mo.App.2003).

“A criminal defendant seeking post-conviction relief based on ineffective assistance of counsel must demonstrate that his counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under substantially similar circumstances and that he was thereby prejudiced.” Graham v. State, 11 S.W.3d 807, 810 (Mo.App. S.D.1999) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)). When the movant’s conviction was the result of a guilty plea, “a claim of ineffective assistance of counsel is immaterial except to the extent that it infringes upon the voluntariness and knowledge with which the guilty plea was made.” Id. (citing Wilkins v. State, 802 S.W.2d 491, 497 (Mo.banc 1991), cert. denied, 502 U.S. 841, 112 S.Ct. 131, 116 L.Ed.2d 98 (1991)). Movant must show that the guilty plea “was not the product of an intelligent or knowing act.” Cole v. State, 2 S.W.3d 833, 835 (Mo.App. S.D.1999). “Prejudice is proven by evidence showing a reasonable probability that, but for counsel’s errors, the claimant would not have [pled] guilty.” Rollins v. State, 974 S.W.2d 593, 595 (Mo.App. W.D.1998). “If the [movant] fails to satisfy one of the two prongs of the Strickland test, we are not compelled to address the other prong and the claim of ineffective assistance of counsel must fail.” Dorsey v. State, 113 S.W.3d 311, 314 (Mo.App. S.D.2003).

Rhodes v. State, supra.

Movant’s trial counsel told the motion court that when movant was first interviewed in his office in May 2001, the interview was tape recorded and movant was provided with a copy of the transcript of that interview. A part of that transcript appears to have been admitted in evidence as Movant’s Exhibit No. 6.1

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Related

Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
Rhodes v. State
157 S.W.3d 309 (Missouri Court of Appeals, 2005)
Wilkins v. State
802 S.W.2d 491 (Supreme Court of Missouri, 1991)
Cole v. State
2 S.W.3d 833 (Missouri Court of Appeals, 1999)
Schuerenberg v. State
98 S.W.3d 922 (Missouri Court of Appeals, 2003)
Dorsey v. State
113 S.W.3d 311 (Missouri Court of Appeals, 2003)
Graham v. State
11 S.W.3d 807 (Missouri Court of Appeals, 1999)
Rollins v. State
974 S.W.2d 593 (Missouri Court of Appeals, 1998)

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Bluebook (online)
201 S.W.3d 110, 2006 Mo. App. LEXIS 1396, 2006 WL 2690154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fogle-v-state-moctapp-2006.