Rivera v. State

912 S.W.2d 103, 1995 Mo. App. LEXIS 2049, 1995 WL 733966
CourtMissouri Court of Appeals
DecidedDecember 13, 1995
DocketNo. 20165
StatusPublished
Cited by1 cases

This text of 912 S.W.2d 103 (Rivera 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
Rivera v. State, 912 S.W.2d 103, 1995 Mo. App. LEXIS 2049, 1995 WL 733966 (Mo. Ct. App. 1995).

Opinion

CROW, Judge.

Appellant, Colon Luis Rivera, pled guilty to two counts of sale of cocaine, § 195.211, RSMo Cum.Supp.1991, and was sentenced to two concurrent ten-year terms of imprisonment. He thereafter filed a motion to vacate the judgment and sentences per Rule 24.035.1 The motion court denied relief without an evidentiary hearing. This appeal followed.

Appellant’s sole point relied on avers the motion court erred in denying relief without an evidentiary hearing in that Appellant pled factual allegations which, if proven, would warrant relief and which are not refuted by the record. Those allegations, according to Appellant, are: (A) the lawyer who represented Appellant in the plea court (“plea counsel”) erroneously advised Appellant “that if he pled guilty, he would only receive five (5) years on each count to run concurrently and possibly one hundred twenty (120) day callback pursuant to Section 559.115(2) RSMo,” and (B) Appellant did not understand a “Petition to Enter Plea of Guilty” which he filled out and submitted to the plea court, and “was dependent on [plea] counsel to explain consequence of plea.” We address those issues seriatim. For convenience, we refer to the advice which Appellant alleges plea counsel gave him about the sentences he would receive as “the alleged misguidance.”

At the time Appellant entered his pleas of guilty, he presented to the plea court a seven-page document captioned “Petition to Enter Plea of Guilty.” It was marked Defendant’s Exhibit 1. We henceforth refer to it as “Exhibit 1.”

Parts of Exhibit 1 are pertinent to component “(A)” of Appellant’s point relied on, set forth above. They are:

“8) My lawyer informed me that the range of punishment which the law provides in this case is: five to 15 years on each count.
10) I understand the plea bargain agreement to be: None.... I understand that if this is an open plea (no negotiated plea) that a pre-sentence investigation will be prepared by the Department of Probation and Parole. I understand that the Court is not bound by any recommendation by the probation officer. Further, that the Court may grant or deny probation in its discretion and may impose any sentence that falls within the range of punishment.
If anyone else made any promises or suggestions, except as noted in this paragraph I know that he/she 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 hope to receive leniency, but I am prepared to accept any punish[105]*105ment permitted by law which the Court sees fit to impose.
11) Neither I, nor any of my friends or loved ones, has been mistreated, threatened, coerced, or forced in any manner by anyone to get me to plead GUILTY, nor were there any promises, inducements, or representations made except as set forth in Paragraph # 10 above.”

Appellant placed his signature at the foot of each page where the above provisions appear.

The plea court placed Appellant under oath and questioned him about Exhibit 1. The dialogue includes this:

“Q Did you have an opportunity to review this document with your attorney?
A Yes, Your Honor.
Q Do you understand everything that is set out in this document?
A Yes, Your Honor.
Q Do you have any problem speaking or using the English language, Mr. Rivera?
A None that I know, Your Honor.... it’s not perfect, but I understand very well. I know how to write it. I know how to speak English.
Q Mr. Rivera, are you aware that the range of punishment for this offense is 5 to 15 years?
A Yes, Your Honor.
Q And that the Court can stack those sentences together on each of the two counts so you’d actually be looking at a minimum possibly of 10 to 30 years?
A Yes, Your Honor.
Q You understand there is no negotiated plea?
A Yes, Your Honor.
Q Do you also understand, Mr. Rivera, that the way this will work is that the Court will order a presentence investigation to be prepared and that Probation and Parole will actually make a recommendation to the Court?
A Yes, Your Honor.
Q Do you also understand, Mr. Rivera, that that is not binding on the Court and that even if they recommend probation, this Court does not have to go along with that?
A Yes, Your Honor.”

Some two months after accepting Appellant’s pleas of guilty, the plea court conducted a sentencing hearing. After pronouncing the sentences, the plea court addressed Appellant:

“[The Court:] You have been represented by [plea counsel] and I questioned you at the time that we took the pleas of guilty whether you had any complaints with the way that he had handled your case. Do you have any complaints today?
Defendant Rivera: No, Your Honor.”

To obtain an evidentiary hearing, a prisoner seeking post-conviction relief must meet three requirements: (1) his motion must allege facts, not conclusions, warranting relief; (2) the facts alleged must not be refuted by the files and records in the ease; (3) the matters complained of must have resulted in prejudice to the prisoner. State v. Starks, 856 S.W.2d 334, 336[2] (Mo. banc 1993); Gilliland v. State, 882 S.W.2d 322, 325[3] (Mo.App.S.D.1994).

As reported in the second paragraph of this opinion, component “(A)” of Appellant’s point relied on maintains the record does not refute his allegation that plea counsel gave him the alleged misguidance. Appellant’s position, as we understand it, is that because the advice plea counsel gave Appellant does not appear in the record, the motion court should have conducted an evidentiary hearing so Appellant could “adduce evidence regarding [plea] counsel’s advice to him, and more importantly, his interpretation of that advice.”

Appellant is correct in asserting that the record does not reveal the advice plea counsel gave him about the sentences he would receive. Consequently, Appellant’s premise that the record does not explicitly refute his allegation that plea counsel gave him the alleged misguidance is likewise cor[106]*106rect. However, that does not entitle Appellant to an evidentiary hearing.

As noted earlier, the third requirement Appellant must meet in order to obtain an evidentiary hearing is that the matters complained of resulted in prejudice to him. Starks, ' 856 S.W.2d at 336[2]; Gilliland, 882 S.W.2d at 325[3],

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950 S.W.2d 708 (Missouri Court of Appeals, 1997)

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Bluebook (online)
912 S.W.2d 103, 1995 Mo. App. LEXIS 2049, 1995 WL 733966, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rivera-v-state-moctapp-1995.