Johnson v. State

527 S.W.3d 904, 2017 Mo. App. LEXIS 892
Missouri Court of Appeals·Decided September 12, 2017·No. No. ED 104838·Published·Cited by 2 cases

Opinion

Philip M. Hess, Judge

Introduction

Tyler Johnson (Movant) appeals from the judgment of the circuit court of Cape Girardeau County denying his Rule 24.0351 motions for post-conviction relief without an evidentiary hearing. In his sole point on Appeal, Movant argues that the motion court clearly erred in denying his motions because he pleaded facts, unrefut-ed by the record, that his counsel induced his guilty plea by incorrectly promising him that the sentencing court would impose a sentence of no more than 120-days of drug treatment under § 559.115. Mov-ant further asserts that the sentencing court’s failure to conduct a Rule 29.07(b)(4) inquiry requires this Court to remand for an evidentiary hearing. Finding no error, we affirm.

Factual Background

On September 27, 2014, Movant robbed a man in his home. During the robbery, Movant threatened the man with a gun and forcibly stole his cash and credit cards. On September 28, 2014, Movant entered a Dollar General in Cape Girardeau in the early morning hours. Movant flourished a gun at one of the store’s workers and demanded money, which he received.

Movant was arrested and charged with two counts of first-degree robbery, one count of kidnapping, one count of second-degree assault, and four counts of armed criminal action.2 In November 2015, Mov-ant pleaded guilty pursuant to a plea bargain he entered into with the State. As part of the plea bargain, Movant agreed to plead guilty to his two robbery charges, with the State dismissing all non-robbery charges and agreeing to a fifteen-year cap on his sentences with each sentence to run concurrently. Movant’s two petitions to plead guilty specified that he understood the range of punishments he could receive were ten to thirty years’ imprisonment or life, but that that the State was agreeing to recommend a 15-year sentence. The petitions also stated that

[i]f anyone else made any promises or suggestions, except as noted in the previous sentences, I know that he had no authority to do it. I know that the sentence I will receive is solely a matter within the control of the Judge.... I am prepared to accept any punishment permitted by law....

Movant signed each page of his petitions to plead guilty.

The plea court conducted a hearing, during which it questioned Movant about his knowledge of his rights and the voluntariness of his plea. During the hearing, the following exchange took place:

[Plea Court]: Has anybody promised you anything other than the plea agreement to get you to plead guilty?
[Movant]: No, sir.
[Plea Court]: Has anybody threatened you or threatened anyone you care about to get you to plead guilty?
[Movant]: No, sir.
[Plea Court]: Has anybody told you that anything to do with these cases is a secret and you’re not supposed to talk to me about it?
[Movant]: No, sir.
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[Plea Court]: When we come back [for sentencing] in December, the State is going to argue that you be sentenced to 15 years on each count and that those sentences be concurrent. [Movant’s Counsel] is going to argue for something less. It is an offense for which, in appropriate circumstances, the Court can suspend execution of sentence. I don’t know if he’s going to argue for that.... [T]he worst that could happen at sentencing is 15 years on each count .., served at the same time.... Do you understand that?
[Movant]: Yes, sir.

Movant’s sentencing hearing took place in December 2015. Movant’s counsel requested the sentencing court to consider either placing Movant in a 120-day drug treatment program in the Department of Corrections or placing him on probation. The court asked Movant whether there was anything he wanted to tell the court before it pronounced his sentence. Movant took the opportunity to apologize for his crimes. The court then sentenced Movant to two concurrent fifteen-year sentences. The court read Movant his post-conviction rights under Rule 24.035 but did not conduct a Rule 29.07(b)(4) inquiry.

Movant filed two Rule 24.035 motions for post-conviction relief, and his appointed counsel filed two duplicate amended-motions. The motion court denied both motions without evidentiary hearings. Movant appealed the motion court’s judgments, and this Court consolidated the appeals.

Standard of Review

We review the denial of a post-conviction motion for whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 24.035(k). Findings of fact and conclusions of law are clearly erroneous only if, after a review of the entire record, we are left with the definite and firm impression that a mistake has been made. Liggins v. State, 512 S.W.3d 847, 850 (Mo. App. E.D. 2017).

The motion court in this case denied movant’s claim without an eviden-tiary hearing. To be entitled to an eviden-tiary hearing: (1) the movant must allege facts that, if true, would warrant relief; (2) the allegations must not be refuted by the record; and (3) the movant must demonstrate he was prejudiced by the alleged errors. Thompson v. State, 449 S.W.3d 53, 58 (Mo. App. W.D. 2014). “A hearing is not required if the court determines that the motion and the files and records of the case conclusively show that the movant is entitled to no relief.” Id.

Movant alleges ineffective assistance of counsel. To show ineffective assistance of counsel, a movant must demonstrate: (1) that counsel’s performance failed to conform to the degree of skill, care, and diligence of a reasonably competent attorney under similar circumstances; and (2) that counsel’s deficient performance prejudiced the defense by showing a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. Worthington v. State, 166 S.W.3d 566, 572-73 (Mo. banc 2005) (citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To satisfy the prejudice requirement after pleading guilty, a movant must show that, but for counsel’s errors, he would not have pleaded guilty, but would have insisted on going to trial. Ziebol v. State, 436 S.W.3d 213, 216 (Mo. App. E.D. 2013).

Discussion

Movant argues that the motion court clearly erred in denying his motions for post-conviction relief because he alleged unrefuted facts that his attorney induced his guilty plea by promising him the court would impose a sentence of no more than 120-days of drug treatment pursuant to § 559.115.3

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Johnson v. State, 527 S.W.3d 904, 2017 Mo. App. LEXIS 892 (Mo. Ct. App. 2017).

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