States v. State

413 S.W.3d 704, 2013 WL 6070034, 2013 Mo. App. LEXIS 1360
CourtMissouri Court of Appeals
DecidedNovember 19, 2013
DocketNo. ED 99329
StatusPublished
Cited by2 cases

This text of 413 S.W.3d 704 (States 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
States v. State, 413 S.W.3d 704, 2013 WL 6070034, 2013 Mo. App. LEXIS 1360 (Mo. Ct. App. 2013).

Opinion

KURT S. ODENWALD, Judge.

Introduction

Corey States (“Movant”) appeals from the judgment of the motion court denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. Pursuant to a plea agreement with the State of Missouri (“State”), Movant pleaded guilty to two counts of second degree assault of a law enforcement officer and one count of resisting arrest. On appeal, Movant argues that the motion court clearly erred in denying his motion for post-conviction relief without an evidentiary hearing because his factual allegations of ineffective assistance of counsel were not refuted by the record. Specifically, Mov-ant asserts that his plea counsel was ineffective for assuring him that he would receive credit on his sentence for the 346 days of jail time served while awaiting the disposition of his case, when in fact Mov-ant received no credit for his time in jail awaiting disposition. Movant has pleaded facts not refuted by the record which, if proven true, would merit relief. Accordingly, Movant was entitled to receive an evidentiary hearing on his motion for post-conviction relief. For that reason, we reverse the judgment of the motion court and remand for an evidentiary hearing on Movant’s claim of ineffective assistance of his plea counsel.

Factual and Procedural Background

On September 26, 2011, Movant entered a guilty plea to two counts of assault of a law enforcement officer (Counts I and II) and one count of resisting arrest (Count III). On the same day, Movant was sen[706]*706tenced to a' term of four years in the Missouri Department of Corrections on each of Counts I and II and three-years on Count III, all to run concurrently with each other. The court’s sentence was consistent with the State’s recommendation pursuant to a plea agreement with Movant.

On March 9, 2012, Movant timely filed a pro se motion for post-conviction relief under Rule 24.305. Appointed counsel filed an amended motion and request for an evidentiary hearing on July 16, 2012. In the amended motion, Movant alleged his plea counsel was ineffective for advising him that he would receive credit for time served awaiting the disposition of his case if he pleaded guilty. Movant asserted that had he known he would not receive jail-time credit for the 346 days he had already served, he would not have pleaded guilty and would have insisted on taking his case to trial. The motion indicated that Movant would rely on his own testimony and the testimony of plea counsel to prove his allegations.

On October 19, 2012, the motion court issued its Findings of Fact, Conclusions of Law, Order and Judgment denying Mov-ant’s motion for post-conviction relief without an evidentiary hearing. The motion court reviewed the transcript of Movant’s plea and sentencing hearing and found that Movant affirmed under oath that he was satisfied with the services of his lawyer and that no one had made him any promises to induce him to plead guilty. The motion court concluded that State’s claim of ineffective assistance of plea counsel was refuted by the record. The motion court further noted that Movant’s claim was not cognizable in a Rule 24.035 motion because his allegation of ineffective assistance of counsel was actually a request to have the Court order credit to his sentence. This appeal follows.

Point on Appeal

Movant’s only point on appeal asserts that the motion court erred in denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing because Movant alleged facts not refuted by the record, which if true, entitle him to relief. The sole basis of Movant’s claim is that his plea counsel mistakenly advised him that he would receive credit for the 346 days he had already served in jail while awaiting the disposition of his case if he accepted the plea agreement offered by the State and pleaded guilty.

Standard of Review

We review a motion court’s denial of a Rule 24.035 motion to determine only whether the findings and conclusions of the motion court are clearly erroneous. Rule 24.035; Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989). The motion court’s findings and conclusions are presumptively correct and will be overturned only when this Court is left with a “definite and firm impression that a mistake has been made” after reviewing the entire record. Vaca v. State, 314 S.W.3d 331, 334 (Mo. banc 2010).

Discussion

We first address the motion court’s finding that Movant’s claim is not cognizable under Rule 24.035. In its findings of facts, the motion court mistakenly treated Movant’s motion as a request to have the Court order time credited to his sentence, which is not a cognizable claim under Rule 24.035. We agree that a claim seeking credit for time served is not cognizable in a post-conviction motion. Murphy v. State, 873 S.W.2d 231, 232 (Mo. banc 1994). Such claim is properly presented through a petition for a writ of habeas corpus. Here, however, Movant does not seek credit for 'any jail time served, but asserts that his counsel’s mistaken advice that he [707]*707would receive time-served credit of almost one year on a four-year sentence rendered his plea involuntary. Movant seeks to have his entire sentence set aside. Missouri courts recognize this type of claim under Rule 24.035. Geitz v. State, 87 S.W.3d 350, 352 (Mo.App. E.D.2002); Bisher v. State, 157 S.W.3d 405, 409 (Mo.App. W.D.2005). Given these facts, Mov-ant appropriately seeks relief through Rule 24.035.

To be entitled to an evidentiary hearing on his Rule 24.035 motion, Movant must show that (1) he alleged facts, not conclusions, warranting relief; (2) the facts alleged raise matters not refuted by the files and record of his case; and (3) the matters complained of resulted in prejudice to him. Wilkes v. State, 82 S.W.3d 925, 928 (Mo. banc 2002). Movant may be denied an evidentiary hearing only if the record conclusively shows that he is not entitled to relief. Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009).

Moreover, because Movant requested an evidentiary hearing on a claim of ineffective assistance of counsel, he must allege facts, not refuted by the record, that (1) counsel’s performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney and (2) he was thereby prejudiced. Webb v. State, 334 S.W.3d 126, 128 (Mo. banc 2011). To show prejudice in a case wherein the movant pleaded guilty, a mov-ant must prove that, but for the errors of counsel, he would not have pleaded guilty and would have demanded trial. State v. Roll, 942 S.W.2d 370, 375 (Mo. banc 1997). “If conviction results from a guilty plea, any claim of ineffective assistance of counsel is immaterial except to the extent that it impinges the voluntariness and knowledge with which the plea was made.” Id.

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Bluebook (online)
413 S.W.3d 704, 2013 WL 6070034, 2013 Mo. App. LEXIS 1360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/states-v-state-moctapp-2013.