Marcus Wharton v. State of Missouri

• Court: Missouri Court of Appeals
• Decided: May 13, 2014
• Docket: ED99652
• Status: Published

Opinion

In the Missouri Court of Appeals Eastern District DIVISION ONE

MARCUS WHARTON, ) No. ED99652 ) Appellant, ) Appeal from the Circuit Court ) of the City of St. Louis vs. ) ) Honorable Thomas C. Grady STATE OF MISSOURI, ) ) Respondent. ) FILED: May 13, 2014

Marcus Wharton ("Movant") appeals from the motion court's judgment, without

an evidentiary hearing, denying his Rule 24.035 motion for post-conviction relief.

Movant pled guilty to four counts of robbery in the first degree, in violation of Section

569.020, and four counts of armed criminal action, in violation of Section 571.015. He

was sentenced to a total of 18 years of imprisonment in the Missouri Department of

Corrections. We affirm.

I. Background

Movant was charged by substitute information in lieu of indictment with four

counts of robbery in the first degree and four counts of armed criminal action, relating to

three incidents that occurred in July 2009, involving four separate victims. Movant was

charged as a prior and persistent offender. On January 23, 2012, Movant pled guilty as

charged. Movant told the plea court that he wished to enter a blind plea of guilty to the

charges, stating that his plea counsel ("Plea Counsel") had explained charges and that he

understood them. Movant agreed that he had spoken enough with his Plea Counsel in

deciding whether to plead guilty to the charges. The court explained to Movant the trial

rights he would be waiving by pleading guilty, and Movant stated he understood those

rights and agreed he was voluntarily waiving them.

The prosecutor explained the factual basis for the charges, after which Movant

admitted were true, and that he had no corrections. The prosecutor stated that Counts I

and II related to a robbery on July 11, 2009, at a Family Dollar Store, wherein Movant

stole cash while an accomplice displayed a deadly weapon. Counts III through VI related

to two robberies occurring on July 16, 2009, at Game Stop, in which Movant and two

accomplices, also using a deadly weapon, forcibly stole cash from one victim and a Wii

videogame console from another victim. Counts VII and VIII related to a robbery

occurring on July 1, 2009, at a Cricket store located next to the Family Dollar Store

involved in the first and second counts. Movant and the same accomplice from Counts I

and II forcibly stole cash, also using a deadly weapon, from the victim clerk who later

identified Movant and the accomplice.

Movant was informed the range of punishment was 10 to 30 years or life

imprisonment for the first-degree robbery charges, and 3 years to any number of years or

life for the armed criminal action charges. Movant stated he discussed the ranges of

punishment with his Plea Counsel and that he understood them. The State deferred

making a sentencing recommendation until reviewing the sentencing assessment report

("SAR"). Movant agreed that his Plea Counsel had explained to him that sentencing

would occur following completion of the SAR, and that his Plea Counsel had explained 2 that the court would decide what sentences to impose, from the minimum to the

maximum punishment range. Movant stated that no one had made any promises about

sentencing or probation to induce his guilty plea. He agreed that no one had told him that

the judge had made any promises. Movant agreed that he understood that the judge was

not required to follow the SAR, and that he could not take back his guilty plea if he did

not like the judge's decision. Movant confirmed that he told his lawyer all the facts

surrounding the case, and that Plea Counsel had fully answered his questions and did

everything that Movant had asked of him. Movant stated that no one had told him to lie

to the court.

Further, Movant agreed that he had no complaints against Plea Counsel. He

agreed that Plea Counsel had contacted the potential witness, whom Plea Counsel had

endorsed. Movant also answered that no one had threatened or mistreated his family to

induce his guilty plea. He pled guilty as charged and stated that he was doing so under

his own free will. The court accepted Movant's guilty pleas and ordered an SAR. On

May 11, 2012, the court sentenced Movant to concurrent 18-year sentences on all eight

counts.

Movant filed his pro se Rule 24.035 motion on June 11, 2012. Appointed counsel

filed Movant's Rule 24.035 amended motion on December 20, 2013. The motion court

denied Movant's motion without an evidentiary hearing and entered a judgment on

January 24, 2013. This appeal follows.

II. Discussion

Movant raises two points on appeal. In his first point, he alleges the motion court

clearly erred in denying his Rule 24.035 post-conviction relief motion without an

evidentiary hearing because he alleged facts, not conclusions, which if proven, would 3 warrant relief and were not conclusively refuted by the file and record. Movant claims he

was denied his rights to due process of law and effective assistance of counsel, as

guaranteed by the Fifth, Sixth and Fourteenth Amendments of the United States

Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution. Movant

claims that his Plea Counsel was ineffective for assuring Movant the court would

sentence him to a term of imprisonment of ten years on each count, to run concurrently.

Movant alleges he reluctantly entered a plea of guilty because he believed the court

would sentence him in line with Plea Counsel's assurances. Movant states that had he

known the plea court would sentence him to a total of 18 years of imprisonment, he

would not have pled guilty, but would had insisted on taking his case to trial.

In his second point, Movant alleges the motion court clearly erred in denying

Movant's motion for post-conviction relief under Rule 24.035 without an evidentiary

hearing because he alleged facts, not conclusions, which if proven, would warrant relief

and were not conclusively refuted by the file and record. Movant contends he was denied

his rights to due process of law and effective assistance of counsel as guaranteed by the

Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and Article I,

Sections 10 and 18(a) of the Missouri Constitution in that he was pressured by Plea

Counsel to enter a plea of guilty even though he wanted to proceed to trial to prove he did

not participate in the commission of the charged offense. Movant further claims his

guilty plea was not voluntarily, knowingly and intelligently made because it was the

result of Plea Counsel's use of persuasion to pressure him into entering his plea of guilty

even though he expressed his desire to proceed to trial. Movant alleges Plea Counsel's

representation fell below the standard of customary skill and diligence exercised by a

reasonably competent attorney under similar circumstances. But for Plea Counsel's 4 ineffectiveness, Movant claims he would not have entered a plea of guilty, but would

have insisted on taking his case to trial.

A. Standard of Review

We review a denial of post-conviction relief to determine 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). Findings and conclusions are clearly erroneous

if, upon review of the entire record, we are left with the definite and firm impression that

a mistake has been made. Gehrke v. State, 280 S.W.3d 54, 56-57 (Mo. banc 2009).

A movant is entitled to an evidentiary 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 movant. Id. When the

movant's claim is one of ineffective assistance of counsel, the movant 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) movant 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 (1985)). Hence,

"[f]ollowing a guilty plea, the effectiveness of counsel is relevant only to the extent that it

affected whether or not the plea was made voluntarily and knowingly." Morales v. State,

104 S.W.3d 432, 434 (Mo. App. E.D. 2003). Trial counsel is presumed effective, and a

movant bears the burden of proving otherwise. Forrest v. State, 290 S.W.3d 704, 708

(Mo. banc 2009).

B. Point I: Movant Testified His Attorney did not Promise Movant Anything. 5 First, Movant alleges the motion court clearly erred in denying his Rule 24.035

post-conviction relief motion without an evidentiary hearing because his Plea Counsel

was ineffective for assuring Movant that the court would sentence him to a term of

imprisonment of ten years on each count, to run concurrently. Movant alleges he

reluctantly entered a plea of guilty because he believed the court would sentence him in

line with Plea Counsel's assurances. Movant states that had he known the plea court

would sentence him to a total of 18 years of imprisonment, he would not have pled guilty,

but would had insisted on taking his case to trial.

A guilty plea must be a voluntary expression of the defendant's choice and a

knowing and intelligent act done with sufficient awareness of the relevant circumstances

and likely consequences of the act. Roberts v. State, 276 S.W.3d 833, 836 (Mo. banc

2009). "A plea of guilty is not made voluntarily if the defendant is misled, or is induced

to plead guilty by fraud or mistake, by misapprehension, fear, persuasion, or the holding

out of hopes which prove to be false or ill founded." Bequette v. State, 161 S.W.3d 905,

907 (Mo. App. E.D. 2005) (quoting Drew v. State, 436 S.W.2d 727, 729 (Mo. 1969))

(internal citations omitted). "When a movant pleads guilty and then affirmatively states

in court that he is satisfied with the performance of his trial counsel, he is not then

entitled to an evidentiary hearing on a claim that counsel was ineffective for failure to

investigate, because such claim is refuted by the record." Simmons v. State, 100 S.W.3d

143, 146 (Mo. App. E.D. 2003). Moreover, "[m]ere prediction or advice of counsel will

not lead to a finding of legal coercion rendering a guilty plea involuntary." Nesbitt v.

State, 335 S.W.3d 67, 70 (Mo. App. E.D. 2011).

The motion court found that Movant's claim was refuted by the record in that

Movant stated under oath that no promises had been made to induce his pleas and that he 6 understood the court could consider the entire range of punishment after reviewing a

sentencing assessment report.

Our review of the record shows the plea court directly and unequivocally

questioned Movant on whether anyone had promised him anything, which would include

a lesser sentence, when the court asked, "And has anyone promised you anything about

your sentence in order to get you to plead guilty?" Movant should have known that was

the time to inform the court, if it were so, that his Plea Counsel promised him a sentence

that did not exceed ten years. However, Movant instead answered that no one had

promised him anything about his sentence. The court did not need to rephrase and ask

the same question in multiple ways. Additionally, it was clear that the sentencing range

was 10 to 30 years to life imprisonment. During the plea hearing, the court specifically

questioned Plea Counsel whether Movant was pleading without a specific amount of

prison time, and Plea Counsel agreed. Plea Counsel said he had explained to Movant that

it was a blind plea, meaning they would ask for a Sentencing Assessment Report, come

back on the sentencing date, and the court would decide “anything from the minimum to

the maximum sentence.” The court then asked Movant if that was correct, and Movant

responded, "Yes, Your Honor."

"To preclude an evidentiary hearing, inquiry into defendant's satisfaction with

performance of trial counsel conducted at sentencing proceedings must be specific

enough to elicit responses from which [the] motion court may determine that record

refutes conclusively allegation of ineffectiveness asserted in motion for post[-]conviction

relief based upon ineffective assistance of trial counsel." Evans v. State, 921 S.W.2d

162, 165 (Mo. App. W.D. 1996). "Statements made by the defendant during sentencing

refute ineffective assistance of counsel claims if the questions and responses are specific 7 enough to refute conclusively the movant's allegations." Redeemer v. State, 979 S.W.2d

565, 571 (Mo. App. W.D. 1998).

Here, the record includes a transcript in which Movant specifically was asked

whether anyone promised him anything about his sentence in order to induce him to

plead guilty, and Movant's response was no. When Movant was asked whether he had

any complaints about his attorney, Movant responded no. Movant answered that his

attorney had answered fully all of his questions, and had done everything he had asked

him to do. After Movant pled guilty, the plea court further made a finding that the

defendant's plea "is made voluntarily and intelligently with a full understanding of the

charge and the consequences of the plea and with an understanding of her rights attending

a jury trial and the effect of a plea of guilty on those rights." The court further found a

factual basis for the plea and accepted the plea of guilty. It is hard to believe that anyone

could read the record of the guilty plea and believe that Movant was somehow confused

or mislead about the questions and his answers to those questions.

Even five months later, at sentencing, the record shows that Movant was asked

whether his attorney had done everything he asked him to do, and whether his attorney

fully explained Movant's rights to him, both of which questions Movant responded in the

affirmative. The court also asked again whether Movant had any complaints, and

Movant had none. The court again asked whether Plea Counsel did a reasonably good

job for Movant, considering all the circumstances, and Movant answered yes. The court

also asked again whether there was any reason why he should not be sentenced, to which

Movant responded no. Movant also was reminded that his co-defendants received

sentences of 15 and 20 years. For some reason, a period of confinement has seemingly

erased Movant's memory of the questions and answers given not only at the time he 8 entered his plea, but also five months later when he was sentenced.

Based on the record before us, we find that Movant was sufficiently questioned in

detail during his plea and sentencing hearings to determine that his allegation that Plea

Counsel induced him to plead guilty by promising a lesser sentence is refuted by the

record. The record demonstrates Movant's clear incentives to avoid a trial. His claim

here, thus, borders on frivolous. 1

C. Point II: The Record Refutes Movant’s Complaint about Plea Counsel.

In his second point, Movant alleges the motion court clearly erred in denying

Movant's motion for post-conviction relief in that he was pressured by Plea Counsel to

enter a plea of guilty even though he wanted to proceed to trial to prove he did not

participate in the commission of the charged offense. Movant further claims his guilty

plea was not voluntarily, knowingly and intelligently made because it was the result of

Plea Counsel's use of persuasion to pressure him into entering her plea of guilty even

though he expressed his desire to proceed to trial. Movant alleges but for Plea Counsel's

ineffectiveness, Movant would not have entered a plea of guilty, but would have insisted

on taking his case to trial.

A defendant who repeatedly assures the court at his guilty-plea hearing that he is

satisfied with his counsel's performance and believes his counsel has done everything

defendant requested is barred from obtaining post-conviction relief based on ineffective

1 Courts wish "to discourage frivolous and unfounded allegations which must be addressed by trial courts already over burdened with a proliferation of post-conviction remedy motions." State v. Bradley, 811 S.W.2d 379, 383 (Mo. banc 1991) (discussing the requirement for a movant's verification of his post- conviction motion listing all grounds for relief known to him and his acknowledgment of waiver of all unlisted grounds). Appellate counsel is under no obligation to raise every issue asserted by a movant, and "can make the strategic decision to remove frivolous claims not likely to result in reversal in favor of putting forth stronger arguments." Holman v. State, 88 S.W.3d 105, 110 (Mo. App. E.D. 2002). Avoiding such frivolous claims "promotes judicial economy by focusing the Court's attention on those issues most pertinent to resolving the case." Id. Further, we suggest that avoiding frivolous claims in one case may promote justice by focusing limited judicial resources on other cases in need of resolution.

9 assistance of counsel. Wild v. State, 345 S.W.3d 328, 330 (Mo. App. 2011); Golliday v.

State, 203 S.W.3d 258, 261 (Mo. App. S.D. 2006). Counsel is not ineffective for

advising his client of the strength of the State's case and that conviction is likely, and as a

result of the counsel's advice the movant pleads guilty. Pittman v. State, 331 S.W.3d 361,

365 (Mo. App. W.D. 2011).

Here, the record also refutes the allegation that Movant wanted to go to trial. To

the contrary, Movant admitted to all the facts stated when the prosecutor explained what

the State would prove if the case went to trial. Movant was asked whether there was

anything he needed to correct, and he said no. Movant also answered several questions

regarding his satisfaction with his Plea Counsel, as discussed supra.

We find the motion court correctly denied Movant's motion for post-conviction

relief without an evidentiary hearing.

III. Conclusion

The judgment of the motion court is affirmed.

____________________________________ Roy L. Richter, Presiding Judge Clifford H. Ahrens, J., concurs Glenn A. Norton, J., concurs