Peet v. State

22 S.W.3d 792, 2000 Mo. App. LEXIS 1162, 2000 WL 1023596
CourtMissouri Court of Appeals
DecidedJuly 26, 2000
DocketNo. 23196
StatusPublished
Cited by4 cases

This text of 22 S.W.3d 792 (Peet 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
Peet v. State, 22 S.W.3d 792, 2000 Mo. App. LEXIS 1162, 2000 WL 1023596 (Mo. Ct. App. 2000).

Opinion

ROBERT S. BARNEY, Chief Judge.

Appellant Greg Peet (“Movant”) appeals from the judgment denying his Rule 24.035 motion after an evidentiary hearing in the Circuit Court of Scott County. We affirm.

On June 12, 1997, Movant pled guilty to one count of statutory rape in the second degree, a class C felony. § 566.034, RSMo 1994. At a subsequent sentencing hearing-held July 10, 1997, the State recommended Movant be sentenced to five years’ imprisonment. The plea court sentenced Movant in accordance with the State’s recommendation.

On October 8, 1997, Movant filed his pro se motion for post-conviction relief pursuant to Rule 24.035, Missouri Court Rules (1997). On February 20, 1998, Movant filed his amended motion for post conviction relief.

In his amended motion and now on appeal, Movant contends his plea counsel was ineffective in failing to object to the prosecutor’s recommendation to the plea court [794]*794of a five year prison sentence. He further contends he had agreed to an “open plea,” which he understood prohibited the prosecutor from recommending a specific sentence. Movant asseverates that he was prejudiced by his plea counsel’s ineffectiveness because he did not receive the benefit of his plea bargain and, had he known that the prosecutor would recommend five years’ imprisonment, he would not have pled guilty but would have, instead, proceeded to trial.

“Appellate review of a denial of a Rule 24.035 motion for post-conviction relief is limited to a determination of whether the motion court’s findings of fact and conclusions of law are clearly erroneous.” Jenkins v. State, 9 S.W.3d 705, 707 (Mo.App.1999); Rule 24.035(k).1 Findings and conclusions of law are clearly erroneous only if, after a review of the entire record, this Court is left with the definite and firm impression that a mistake has been made. Id. “The findings of the motion court are presumed correct.” Rick v. State, 934 S.W.2d 601, 605 (Mo.App.1996). “After a guilty plea, a claim of ineffective assistance of counsel is relevant only to the extent it affected the voluntariness and understanding with which the plea was made.” Id. “To prevail on a claim of ineffective assistance of counsel, the claimant must show by a preponderance of the evidence that his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would have exhibited under similar circumstances and that the claimant was thereby prejudiced.” Jenkins, 9 S.W.3d at 707; see also Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). In order to “satisfy the ‘prejudice’ requirement, a prisoner who has pled guilty must demonstrate there is a reasonable probability that, but for counsel’s errors, he would not have pled guilty and would have insisted on going to trial.” Jenkins, 9 S.W.3d at 708. In the absence of a showing to the contrary, counsel is presumed to have provided effective assistance. Id. at 707. “Movant has the burden of proving the grounds asserted for post-conviction relief by a preponderance of the evidence.” Id.

“If the movant claims he or she pled guilty because he or she was misled, the court must determine whether the movant’s belief by which he or she claims to have been misled was reasonable.” Rick, 934 S.W.2d at 606: “If the movant claims he or she pled guilty due to a mistaken belief about his or her sentence, the court must determine whether a reasonable basis existed for such a belief.” Id. “In both scenarios, the test is whether a reasonable basis exists in the record for the movant’s belief.” Id. “Only when it appears that a movant’s belief is based upon positive representations on which he is entitled to rely will we conclude a mov-ant’s mistaken belief is reasonable.” Id. “ ‘[A] breach of plea agreement occurs where a prosecutor promises to make no recommendation regarding sentencing in exchange for a guilty plea but later makes a recommendation.’” Id. (quoting Sharp v. State, 908 S.W.2d 752, 755 (Mo.App.1995)).

Our review of the proceedings in the plea court shows the following pertinent colloquy:

Court: Is there a plea bargain?
Defense Counsel: It is an open plea, Judge.
Court: Do you understand there’s no plea bargain, it is an open plea?
Movant: Yes, sir.

Later, during the sentencing phase, the following exchange took place:

Prosecutor: The State’s recommendation for Mr. Peet is five years in the Department of Corrections.
Court: Your plea bargain was open?
Prosecutor: So I am arguing five years.
[795]*795Court: Mr. Peet, it is the judgment of this court that you shall be committed to the Division of Corrections for a period of five years.
Is there any good and just cause or legal reason to be given why sentence should not be pronounced?
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Court: Are you satisfied with your attorney’s [sic] work?
Movant: Yes.
Court: They have done everything that you have asked them to do?
Movant: Yes.
Court: Have you had time to sit down with them and tell them the facts?
Movant: Yes.
Court: You have talked to them and they have explained your rights?
Movant: Yes.
Court: Have they told you the ramifications of what you are doing?
Movant: Yes.

According to Movant’s Rule 24.085 hearing testimony, Movant had two attorneys during the course of the underlying criminal proceedings. His first attorney, Kent Hall, engaged in plea bargain negotiations with the prosecutor. Movant states that in January 1997 Mr. Hall informed him the prosecutor was recommending a plea bargain of five years in the Department of Corrections.2 Movant testified that he did not “want the five years” and the prosecutor’s offer was rejected. Mov-ant stated that his second attorney, Patrick McMenamin, represented him during the plea hearing on July 12, 1997. Movant related that Mr. McMenamin told him he had spoken with Movant’s first attorney, Mr. Hall, and that “Mr. Hall had come up with the open plea agreement which he explained ... if I pleaded guilty, they would probably just run it in with my probation, and the prosecutor would not recommend any time towards my sentence. It would be up to the judge.” Movant then acknowledged that he was surprised that he had been sentenced to five years in the Department of Corrections because “what Mr. McMenamin explained to me was the Prosecutor would not make any recommendations towards the sentence.”

At the same evidentiary hearing, Mov-ant’s first attorney, Mr.

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Bluebook (online)
22 S.W.3d 792, 2000 Mo. App. LEXIS 1162, 2000 WL 1023596, Counsel Stack Legal Research, https://law.counselstack.com/opinion/peet-v-state-moctapp-2000.