Johnson v. State

407 S.W.3d 63, 2013 WL 3989253, 2013 Mo. App. LEXIS 916
Missouri Court of Appeals·Decided June 11, 2013·No. No. WD 74813·Published·Cited by 3 cases

Opinion

VICTOR C. HOWARD, Judge.

Robert Johnson appeals the denial of his Rule 24.035 motion for post-conviction relief after an evidentiary hearing. Johnson claims that his guilty pleas were involuntary, unknowing, and unintelligent due to his counsel’s ineffective assistance and the trial court’s failure to establish a factual basis for the plea. The judgment is reversed and remanded.

Background

In August 2007, Robert Johnson was charged with three counts of distributing a controlled substance near a school in violation of section 195.214, RSMo,1 a class A felony. The statute provides that:

[a] person commits the offense of distribution of a controlled substance near schools if such person violates section 195.211 by unlawfully distributing or delivering any controlled substance to a person in or on, or within two thousand feet of, the real property comprising a public or private elementary or secondary school[.]

§ 195.214.1, RSMo2 (emphasis added). The State alleged that on three separate occasions in June 2007, Johnson had sold marijuana within 2,000 feet of an elementary school in Chillieothe.

Johnson was represented by Public Defender Jane Dunn at his plea hearing on August 15, 2007. Pursuant to a written plea agreement, Johnson entered guilty pleas on all three counts, and the State recommended three ten-year prison sentences, to be served consecutively. Also pursuant to the plea agreement, the prosecutor recommended that the court stay execution of the sentences and place Johnson on five years of supervised probation.

At the plea hearing, Johnson acknowledged that he had signed a written plea agreement. He admitted that he had sold marijuana to his cousin on each of the dates specified in the information, twice at his own home and once at his place of business. The State presented evidence that both locations were less than 2,000 feet from an elementary school. At the conclusion of the hearing, the court accept[65]*65ed Johnson’s guilty pleas and ordered a sentencing assessment report.

On September 14, 2007, Johnson appeared for sentencing represented by a different attorney from the public defender’s office, Sherri Nelson. The judge expressed concern that Johnson might not be able to successfully complete five years of probation and noted the lengthy prison sentence he faced if he did not. The court asked Johnson if he would not “rather do a smaller sentence now and just get it done.” Johnson rejected the court’s offer. He told the court that he wanted to “go ahead with probation.” He also assured the court that he could successfully complete probation. The court sentenced him in accordance with the State’s recommendation.

Less than two years later, Johnson’s probation was revoked, and the court ordered his thirty-year sentence executed. Johnson then filed a pro se Rule 24.035 motion for post-conviction relief. Appointed counsel filed an amended motion that raised the same allegations that Johnson now asserts on appeal, ie., that sentencing counsel was ineffective for failing to discuss with him the court’s proposed alternative sentence; that plea counsel was ineffective in failing to inform him that the State would have to prove he knew he was within 2,000 feet of a school when he sold marijuana; and that there was an insufficient factual basis for the guilty plea because the court did not establish that he knew of his proximity to the school.

At the evidentiary hearing on his 24.035 motion, Johnson’s plea counsel, Attorney Dunn, testified, as did the attorney who represented him at sentencing, Attorney Nelson. Johnson testified, inter alia, that he did not know whether he was within 2,000 feet of a school when he distributed the marijuana, that he did not know the State would have to prove his knowledge of that fact at trial, and that he would not have pled guilty had he known the State would have to prove that at trial.

The motion court denied Johnson’s motion. The court found no ineffectiveness of sentencing counsel, noting that Johnson twice, under oath, turned down the court’s offer of a shorter sentence with no probation. The court also found that plea counsel was not ineffective because the court’s research showed that the State was not required, at the time of the offense, to show that Johnson knew he was within 2,000 feet of a school. The court did not make a detailed finding on the factual basis claim but had already decided that Johnson’s knowledge of his proximity to the school was not an element of the offense, which was the underlying basis of that claim. The motion court concluded that Johnson “understood the nature of the charges, and freely, voluntarily, and knowingly entered his plea to those charges.” This appeal follows.

Standard of Review

Appellate review of the denial of a motion for post-conviction relief is limited to a determination as to whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 24.035(k). The motion court’s findings and conclusions are presumed correct and will be overturned only if, after reviewing the record, this court is left with the definite and firm impression that a mistake has been made. Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009). The movant bears the burden of proving his claims for relief by a preponderance of the evidence. Rule 24.035®.

Points I and II: Knowledge-of-Proximity Element

Johnson’s Points I and II both relate to his contention that the motion court erred in determining that, at the time of the [66]*66offenses, his plea hearing, and sentencing, section 195.214 did not require the State to prove the defendant’s knowledge of his proximity to a school when he sold an illegal substance. We address the claims together.

Johnson first contends that his plea counsel rendered ineffective assistance by failing to advise him that the State would have to prove that he knew he was less than 2,000 feet from a school when he sold the marijuana. Had he known this, Johnson says, he would not have pled guilty but would have chosen to go to trial; thus, counsel’s ineffective assistance rendered his guilty plea involuntary and unknowing.

To prevail on an ineffective assistance of counsel claim, the movant must prove by a preponderance of the evidence that: (1) counsel failed to exercise the level of skill and diligence of a reasonably competent attorney; and (2) that he was thereby prejudiced. Zink, 278 S.W.3d at 175 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). A movant claiming ineffective assistance must overcome a strong presumption that counsel provided competent representation. Worthington v. State, 166 S.W.3d 566, 573 (Mo. banc 2005). A defendant who enters a guilty plea waives all claims that counsel was ineffective “except to the extent that the conduct affected the voluntariness and knowledge with which the plea was made.” Id. In order to show prejudice in a guilty plea case, a defendant must prove that, but for the errors of counsel, he would not have pled guilty, but would have chosen to go to trial. State v. Roll, 942 S.W.2d 370, 375 (Mo.

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Johnson v. State, 407 S.W.3d 63, 2013 WL 3989253, 2013 Mo. App. LEXIS 916 (Mo. Ct. App. 2013).

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