Gooden v. State

846 S.W.2d 214, 1993 Mo. App. LEXIS 108, 1993 WL 11141
CourtMissouri Court of Appeals
DecidedJanuary 25, 1993
DocketNo. 18047
StatusPublished
Cited by9 cases

This text of 846 S.W.2d 214 (Gooden 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
Gooden v. State, 846 S.W.2d 214, 1993 Mo. App. LEXIS 108, 1993 WL 11141 (Mo. Ct. App. 1993).

Opinion

PARRISH, Chief Judge.

This is an appeal by J.B. Gooden, Jr. (movant) from the denial, after an eviden-tiary hearing, of a Rule 24.035 motion. This court affirms.

Movant pleaded guilty to the offense of murder in the first degree. He was sentenced, in accordance with a negotiated plea agreement, to confinement for life without possibility of probation or parole. Movant presents four points on appeal. [216]*216The facts applicable to each point on appeal are set forth in the part of the opinion that discusses that point.

I.

Movant’s first point asserts that the motion court committed plain error in not vacating movant’s conviction and sentence for the reason that the record of the guilty plea hearing in movant’s criminal case does not establish that there was a factual basis for the guilty plea. See Rule 24.02(e). Alternatively, movant asserts that the motion court committed plain error in denying his Rule 24.035 motion in that his post-conviction counsel “failed to assert the lack of factual basis for [movant’s] plea as a claim for postconviction relief in the motion court.”

A Rule 24.035 motion must be verified. Rule 24.035(d) requires that the verification declare “that [a movant] has listed all grounds for relief known to him.” The verification must acknowledge a movant’s “understanding that he waives any ground for relief known to him that is not listed in the motion.” Id. Both the pro se motion that movant filed and his amended motion contain such verifications.

Since movant did not assert a lack of factual basis for his plea of guilty as a ground relied upon in his pro se motion or in his amended motion, it cannot be considered. Hagen v. State, 766 S.W.2d 778, 780 (Mo.App.1989). Movant’s appellate counsel accomplishes nothing by characterizing the ground as a claim of plain error. The plain error rule does not justify a review of every point that has not been properly preserved for appellate review. State v. Ervin, 835 S.W.2d 905, 920 (Mo. banc 1992),

The effort to “alternatively” argue that post-conviction counsel’s failure to assert a “lack of factual basis for [movant’s] plea as a claim for postconviction relief in the motion court” is likewise fruitless. It amounts to a veiled attack on the effectiveness of post-conviction counsel. “Allegations of ineffective assistance of post-conviction counsel are categorically unreviewable.” Id. at 928-29, citing Pollard v. State, 807 S.W.2d 498, 502 (Mo. banc), cert. denied, — U.S. -, 112 S.Ct. 383, 116 L.Ed.2d 334 (1991). Movant’s first point is denied.

II.

Movant’s second point on appeal alleges ineffective assistance of counsel in the underlying criminal case. Movant contends that his plea of guilty was therefore rendered involuntary. He complains that his attorneys “failed to properly investigate and pursue to a conclusion” a motion to suppress evidence that was directed to statements movant made to law enforcement officers. He argues that law enforcement personnel did not “honor[ ] [his] invocation of his right to silence” thereby causing his statements to be the product of “psychological coercion.” Movant also contends that the statements he made “were obtained as a result of an unlawful arrest.”

Prior to movant’s pleading guilty, his trial attorneys filed a motion in his behalf seeking “to suppress alleged incriminating written and oral statements which [mov-ant] purportedly made.” The motion to suppress asserted that statements movant made were involuntary; “were made without [movant] first being advised of his constitutional rights”; and were the product of an unlawful arrest. An evidentiary hearing on the motion to suppress was held. At its conclusion the trial judge, by docket entry in the criminal cáse file, “continued [the court’s ruling] to a later date to allow [movant] to interview a possible witness.” Further, the transcript of the hearing indicates that one of the exhibits that was admitted in evidence was a videotape recording of a statement made by movant. The trial judge anticipated viewing the videotape in his chambers “within the next day or so at [his] convenience."

The evidentiary hearing on movant’s motion to suppress evidence was held August 13, 1990. On December 10, 1990, defendant pleaded guilty to murder in the first degree. There had been no ruling by the trial court on the motion to suppress evidence before movant pleaded guilty.

[217]*217The fact that movant pleaded guilty in his criminal case affects what this court will assess in its review of the claim of ineffective assistance of counsel.

By pleading guilty, movant waived all errors except those which affect the vol-untariness of the plea[] or the understanding with which the plea[ ] [was] given. Any claim of ineffective assistance of counsel is immaterial except to the extent it impinged upon the voluntariness and knowledge with which the plea of guilty was made. Freeman v. State, 691 S.W.2d 414, 415 (Mo.App.1985); Clark v. State, 690 S.W.2d 828, 829 (Mo.App.1985).

Jenkins v. State, 788 S.W.2d 536, 537 (Mo.App.1990).

Although movant now complains that the attorneys who represented him in his criminal case were ineffective, the record from his guilty plea hearing does not reflect that dissatisfaction. During the guilty plea proceeding, movant acknowledged that he was represented by two attorneys, Ms. Kraft and Mr. Wolfrum. Movant was asked if he was satisfied with the representation that they had provided him. He answered, “Yes.” In response to questions from the trial court, movant advised the court that his attorneys had done the things that he wanted them to do and that there was nothing that he wanted his attorneys to do that they had not done.

After the prosecuting attorney made his recommendation to the trial court regarding punishment, the judge asked movant if the recommendation was the one that mov-ant had expected the prosecuting attorney to make. Movant answered that it was. The judge then told movant that the court would follow the prosecutor’s recommendation. The judge stated to movant, “So you now know what your punishment will be if you wish to proceed with your guilty plea. Or you can plead not guilty and stand trial. What do you wish to do?” Movant told the judge that he wanted to plead guilty and not have a trial. The following colloquy then occurred:

THE COURT: All right. Mr. Gooden, has anybody forced you or threatened you or promised you anything to make you plead guilty here today?
[MOVANT]: No.
THE COURT: Are you pleading guilty of your own free will?
[MOVANT]: Yes.
THE COURT: And are you pleading guilty because it is in fact true that you are guilty of this crime?
[MOVANT]: Yes.

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Bluebook (online)
846 S.W.2d 214, 1993 Mo. App. LEXIS 108, 1993 WL 11141, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gooden-v-state-moctapp-1993.