Jackson v. State

366 S.W.3d 656, 2012 WL 1926404, 2012 Mo. App. LEXIS 719
Missouri Court of Appeals·Decided May 29, 2012·No. ED 97122·Published·Cited by 5 cases

Opinion

ROY L. RICHTER, Judge.

Tommy Jackson (“Movant”) appeals from the motion court’s denial, without an evidentiary hearing, of his Rule 24.035 amended motion. 1 Movant asserts the motion court clearly erred in denying him an evidentiary hearing to consider his claim that he received ineffective assistance of counsel because he pled facts that his plea counsel had not contacted Movant’s witnesses prior to advising Movant to plead guilty, and had Movant known this, Mov-ant would not have pled guilty. Further, Movant alleges the motion court erred in failing to issue findings of fact and conclusions of law on Movant’s pro se claims attached to his amended motion for post-conviction relief. We reverse and remand for the limited purpose of the trial court making findings, with or without an evi-dentiary hearing, on whether plea counsel promised Movant a ten- to fifteen-year sentence and told Movant not to mention the promise to the court.

I. Background

Movant pled guilty on March 23, 2010, to the class A felony of murder in the second degree, in violation of Section 565.021 RSMo 2000 2 , two counts of armed criminal action, in violation of Section 571.015, and assault in the first degree, in violation of Section 565.050. During his sentencing hearing on May 26, 2010, the court sentenced Movant to three life sentences and a fifteen-year sentence, all to run concurrently.

Movant later filed a pro se motion for post-conviction relief under Rule 24.035. His appointed counsel filed an amended motion, physically attaching Movant’s pro se motion and incorporating the claims therein. The motion court overruled Mov-ant’s motion without an evidentiary hearing. This appeal follows.

II. Discussion

Movant i’aises two points on appeal. In his first point, Movant alleges the motion court clearly erred in denying his Rule 24.035 motion, without an evidentiary hearing, because he pled facts that his plea counsel had not contacted any of Movant’s witnesses prior to advising Movant to plead guilty. These facts, Movant alleges, would warrant relief and were not conclusively refuted by the record. Movant also pled that plea counsel acted unreasonably, and that had Movant known his attorney had not contacted his witnesses before, Movant would not have pled guilty, but would have insisted on a trial. Further, Movant argues that the motion court’s ruling that this claim was conclusively refuted is clearly erroneous because it fails to recognize that his claim presented a question of fact that requires an evidentiary hear *659 ing. Movant contends the motion court’s ruling deprived Movant of his right to effective assistance of counsel, right against self-incrimination, right to persist in his plea of not guilty, right to due process of law, right to access the courts, right to present a defense, and right to a jury trial, in violation of his constitutional rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Article I, Sections 10, 14, 18(a), 19 and 22 of the Missouri Constitution. Movant requests that this Court reverse the motion court’s judgment and remand for a new trial, or in the alternative, for an evidentiary hearing.

In his second point, Movant alleges the motion court erred, in violation of his right to due process of law and right to access the courts, as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution, Article I, Sections 10 and 14 of the Missouri Constitution, and Rule 24.035(j), in failing to issue findings of facts and conclusions of law on Movant’s pro se claims, which were properly included in his amended motion, and noted by the court, but not ruled upon. Movant requests that this Court reverse the motion court’s judgment and remand this case to the motion court with directions to hold an evidentiary hearing or to enter findings of facts and conclusions of law on Movant’s pro se post-conviction claims.

Standard of Review

Our review of the motion court’s denial of a Rule 24.035 motion is limited to a determination of whether the motion court’s findings and conclusions are clearly erroneous. Rule 24.035(k); Webb v. State, 334 S.W.3d 126, 128 (Mo. banc 2011).

A movant is entitled to an evi-dentiary hearing only if (1) the movant pled facts, not conclusions, warranting relief; (2) the facts alleged are not refuted by the record; and (3) the matters complained of resulted in prejudice to the mov-ant. Id. When the movant’s claim is one of ineffective assistance of counsel, the mov-ant must allege facts, unrefuted by the record, that (1) trial counsel’s performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney and (2) he was thereby prejudiced. Webb, 334 S.W.3d at 128. ■ To show prejudice when challenging a guilty plea, the movant must allege facts showing “‘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. (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).

Claim that Plea Counsel Failed to Contact Witnesses

In his first point on appeal, Movant argues his plea counsel misled him to believe he actually interviewed Movant’s witnesses to support his theory of self defense, when, in fact, plea counsel had not. Movant argues that had he known plea counsel had not interviewed his witnesses, Movant would not have pled guilty but would have insisted on going to trial. Movant states that the witnesses would have supported his version of events by testifying that the address where the shooting took place was a known prostitution and violent drug house where they themselves have experienced being in fear for their lives when passing by the paranoid drug addicts, drug dealers carrying guns, and prostitutes offering sex for drugs and money. Movant claimed that he wanted other witnesses to testify about the reputation of the residence because he was worried that if he alone testified as to the house’s reputation, “his testimony would be met with some skepticism.” Movant stated that although plea counsel told him he should not proceed with a self-defense theory at trial, *660 Movant later learned that plea counsel had not contacted his witnesses, and if an evi-dentiary hearing were held, Movant expected plea counsel to testify that he never contacted any of the people that Movant requested he contact. The record refutes Movant’s claim.

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Jackson v. State, 366 S.W.3d 656, 2012 WL 1926404, 2012 Mo. App. LEXIS 719 (Mo. Ct. App. 2012).

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