Good v. State

979 S.W.2d 196, 1998 Mo. App. LEXIS 695, 1998 WL 168435
CourtMissouri Court of Appeals
DecidedApril 14, 1998
DocketNo. WD 53527
StatusPublished

This text of 979 S.W.2d 196 (Good 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
Good v. State, 979 S.W.2d 196, 1998 Mo. App. LEXIS 695, 1998 WL 168435 (Mo. Ct. App. 1998).

Opinion

HOWARD, Judge.

Michele L. Good appeals from the denial of her Rule 24.035 motion for post-conviction relief. Good contends that the trial court should have allowed her to withdraw her plea of guilty after declining to follow the State’s recommendation of a 120-day callback, and that her trial counsel was ineffective for failing to adequately advise her that the court might not follow the State’s recommendation of a 120-day callback. Good also contends that the court failed to personally advise her that she could not withdraw her plea if the court failed to follow the State’s recommendation of the 120-day callback.

Reversed and remanded.

Good was charged with first-degree assault for immersing a one-year-old girl she was babysitting into a sink full of boiling water, causing third-degree burns over a large portion of the girl’s body. Good and the State entered into a plea agreement, the substance of which was set out in a July 11, 1995 letter which the prosecutor wrote to David Miller, Good’s counsel, and which Good acknowledged that she also read:

At the sentencing, I will be recommending that your client receive a 20 year sentence and be committed to the Missouri Department of Corrections under the 120 day rule. As you are aware, I have no authority to bind Judge Bryant on his use of the 120 day rule. Pursuant to your authorization, I did run the general terms and conditions of our plea arrangement by Judge Bryant and he indicated that he would go along with them. Obviously, he could not commit on the 120 day rale until such time as he receives the report back from the Department of Corrections for his review.

On July 21, 1995, Good appeared before the trial court and entered a plea of guilty to the charge of first-degree assault. Prior to entering the plea, Good was given a questionnaire entitled “To Defendants Who Plan to Enter a Plea of Guilty,” which asked the recipient understood various aspects and consequences of the guilty plea process. Item No. 24 on the questionnaire read as follows:

24. Do you understand that the “plea bargaining” in this case is only a recommendation to the Court; and, that you do not have a right to withdraw your guilty plea and have a trial by jury?

It was Miller, not Good, who filled in a response of “yes” to this question, but all the questions and answers were given to Good to read and consider.

At the guilty plea hearing, Miller questioned Good to ensure that she understood the agreement concerning the 120-day callback provision:

Q. You understand, do you not, and I’ve explained to you, that the recall — in other words, bringing you back, is something that [the prosecutor] and I, by our agreement to recommend to Judge Bryant, that that’s strictly his decision?
A. Yes.
Q. I’ve explained to you as an aid to making that decision that we’ve recommended^ — or will recommend to the Court at the appropriate time that in the event the Court accepts our plea, that the Judge ask Probation and Parole to do a presen-[198]*198tence investigation and report. Do you understand that?
A. Yes.
Q. And I’ve explained to you that, basically, that’s a background check and a look, not only at your background, but at your current situation, as I say, as an aid to the Court in determining whether the plea agreement should, in fact, be honored and that it’s appropriate under the circumstances?
A. Yes.
Q. And I’ve explained to you, also, that in the event the Court would impose this sentence and you would be committed, that recall under 559.115, as the statute says, is on the court’s own motion, do you understand that?
A. Yes.
Q. In other words, I — if necessary, I doubt very much that it would be, knowing the Court, but if it were necessary, I can certainly plant the seed with the Court. I can say, “Judge, remember, we need to bring Ms. Good back.” But basically, the making of that motion on the record and the accomplishment of returning you to court for consideration of probation is a matter strictly within the Court’s own purview, you understand that?
A. Yes.
Q. And you understand, finally, do you not, that the granting of a probation, as we’re discussing it, following the serving of however much — up to a maximum of 120 days that you might actually serve, again, is strictly in the judge’s discretion, you understand that?
A. Yes.
Q. Again, that — I’m sure, that you contemplated, as do I, and, I suspect, as presumably does Mr. Thompson, in making the recommendation to the Court, but that the final decision is a function of the pre-sentence investigation, the report that the Court would receive from the Department of Corrections, and frankly, just the Judge’s own view of the case, but that it will be his decision and his decision alone ultimately to make, you understand that?
A. Yes.

At the close of the guilty plea hearing, the court accepted Good’s plea of guilty to first-degree assault as being voluntarily and knowingly made, but deferred her sentencing until a later hearing.

Good’s sentencing hearing took place on November 29, 1995. There was testimony from the victim’s mother and a plastic surgeon concerning the extent and consequences of the victim’s injuries. The court also noted that it had reviewed the pre-sentence investigation report, which recommended against probation or a 120-day callback. At the close of the hearing, the court sentenced Good to a twenty-year term of imprisonment, and declined to follow the State’s recommendation of a 120-day callback. Miller then asked that Good be allowed to withdraw her guilty plea, and the court denied that request.

Good then filed a Rule 24.035 motion for post-conviction relief. At the evidentiary hearing, Good testified that she thought that the twenty-year sentence and the 120-day callback were a “package deal” — that the court couldn’t accept the sentence and turn down the callback. Good then testified as follows about the callback:

Q. Now, prior to pleading guilty, when you and Mr. Miller were discussing this, did you — were you ever told by Mr. Miller, or anyone — now, I’m talking about before you came to court — that the Court could refuse the recommendation?
A. The 120 callback?
Q. Yes.
A. No.
Q. All right. Did your attorney, Mr. Miller, ever tell you that if the Court refused the 120-day callback, that you would still receive the 20-year sentence? And again, I’m talking about before you walked into the courtroom or before the Court accepted your plea of guilty.
A. No.
Q. Now, were you aware that the Court could deny the 120-day callback after it received a report from the Department of Corrections as to your adjustment and conduct down there?
A. Yes.
[199]*199Q. All right. You understood that?
A. Uh-huh.
Q. All right.

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Bluebook (online)
979 S.W.2d 196, 1998 Mo. App. LEXIS 695, 1998 WL 168435, Counsel Stack Legal Research, https://law.counselstack.com/opinion/good-v-state-moctapp-1998.