Stufflebean v. State

986 S.W.2d 189, 1999 Mo. App. LEXIS 37, 1999 WL 8054
CourtMissouri Court of Appeals
DecidedJanuary 12, 1999
DocketNo. WD 55749
StatusPublished
Cited by7 cases

This text of 986 S.W.2d 189 (Stufflebean 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
Stufflebean v. State, 986 S.W.2d 189, 1999 Mo. App. LEXIS 37, 1999 WL 8054 (Mo. Ct. App. 1999).

Opinion

ULRICH, P.J.

Kenny Stufflebean appeals the judgment of the motion court denying his Rule 24.035 for postconviction relief following an eviden-tiary hearing. Mr. Stufflebean sought to vacate his convictions for two counts of first degree child molestation, section 566.067, RSMo 1994, and concurrent sentences of seven years imprisonment. He claims that his guilty plea was not voluntarily, knowingly, and intelligently entered because (1) the prosecutor breached the plea agreement to recommend probation by cross-examining a defense witness, and (2) his attorney erroneously advised him that he would be able to withdraw his plea if the court did not follow the State’s sentence recommendation. The judgment of the motion court is affirmed.

Kenny Stufflebean was charged by felony complaint with four counts of class C felony first degree child molestation, section 566.067, RSMo 1994. The complaint alleged that Mr. Stufflebean subjected his stepdaughter, who was less than twelve years old, to sexual contact. Thereafter, Mr. Stuf-flebean filed a petition to enter a plea of guilty in which he represented, “On at least 2 occasions, I would get into bed with my stepdaughter ... and massage her back and neck and breast for the purpose of sexual gratification.” Mr. Stufflebean also stated in the petition that he understood the charges against him, the range of punishment, and the rights he was waiving by pleading guilty. He also stated that in exchange for his guilty [191]*191plea, the prosecuting attorney promised to recommend a suspended execution of sentence on two counts and dismiss the remaining two counts. He acknowledged he had been advised that the court was not bound by the prosecutor’s promise and that he was not promised by anyone that he would receive probation or parole.

At the guilty plea hearing, the court inquired into Mr. Stufflebean’s understanding of the charges, the range of punishment, and the constitutional rights he was waiving in pleading guilty. Mr. Stufflebean again acknowledged that he had not been promised leniency or probation. The court accepted Mr. Stufflebean’s plea finding that it was voluntarily and intelligently made. A pre-sentence investigation was ordered.

At the sentencing hearing, the State recommended probation. The court sentenced Mr. Stufflebean to two concurrent seven-year terms of imprisonment. Thereafter, Mr. Stufflebean filed a pro se Rule 24.035 motion for postconviction relief, which was later amended. Following an evidentiary hearing, the motion court denied Mr. Stufflebean’s motion. This appeal followed.

On appeal, Mr. Stufflebean claims that the motion court clearly erred in denying his Rule 24.035 motion for postconviction relief. He argues that his guilty plea was not voluntarily, knowingly, and intelligently entered because (1) the prosecutor breached the plea agreement to recommend probation by cross-examining a defense witness, and (2) his attorney erroneously advised him that he would be able to withdraw his plea if the court did not follow the State’s sentence recommendation.

Appellate review of the denial of a postconviction relief motion is limited to a determination of whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 24.035(k); State v. Roll, 942 S.W.2d 370, 375 (Mo. banc 1997), cert. denied, — U.S. -, 118 S.Ct. 378, 139 L.Ed.2d 295 (1997). Findings and conclusions are clearly erroneous only if, after a review of the entire record, the appellate court is left with a definite and firm impression that a mistake has been made. Roll, 942 S.W.2d at 375.

A. Breach of Plea Agreement by Prosecutor

In Mr. Stufflebean’s first point on appeal, he claims that his guilty plea was not voluntarily, knowingly, and intelligently entered because the prosecutor breached the plea agreement to recommend probation by cross-examining a defense witness at the sentencing hearing. Mr. Stufflebean called a psychologist at the sentencing hearing who testified that prison would not promote his treatment. The prosecutor then cross-examined the witness as follows:

Q: If I understand your testimony correctly, you believe incarceration would hurt the Defendant’s self-esteem?
A: Yes.
Q: So that’s why he shouldn’t go to the penitentiary, because of the way he feels about himself?
A: I think that that would not improve his personality structure in such a way as to help him behave more responsibly in the future.
Q: Where within that scheme of things does the protection of little girls in society come in?
A: Uh, I certainly believe that some supervision is in order, and I certainly believe that some sort of strict probation is in order.
Q: Wouldn’t going into the penitentiary hurt anyone’s self-esteem, so this is not unique in this Defendant?

On re-cross, the following exchange occurred between the prosecutor and the witness:

Q: Are you aware of the Missouri Sexual Offender Program in place in the Missouri Department of Corrections?
A: No, I’m not.
Q: And the long term treatment program that they offer?
A: No, I’m not.
Q: If they do offer a long term offender program in the Department of Corrections, you would agree that is a good step toward what he needs as far as redirecting his problems?
[192]*192A: Certainly it’s a good first step.
Q: You would agree, would you not, there’s a substantially— there’s a substantial less risk that he will re-offend at least during the period of time he’s in the penitentiary?
A: I would agree with that, certainly.

Where a plea bargain is based to a significant degree on a promise by the prosecutor, to the extent that it is part of the inducement or consideration for entering the plea, the promise must be fulfilled. Sharp v. State, 908 S.W.2d 752, 755 (Mo.App. E.D.1995), cert. denied, 518 U.S. 1007, 116 S.Ct. 2529, 135 L.Ed.2d 1052 (1996). If the prosecutor, therefore, fails to fulfill a promise that induced a guilty plea, the defendant is entitled to relief. Id.

In this case, the prosecutor fulfilled his promise to recommend probation. At the beginning of the sentencing hearing, the prosecutor stated that pursuant to the plea agreement, he was recommending probation. During closing remarks by counsel, the prosecutor reiterated his recommendation for probation:

PROSECUTOR: I also want to say I would ask the Court to remember that my recommendation was for probation, and I do not wish the Court to consider any question I’ve asked, any comment I’ve made, or anything I’ve done in this proceeding to in any way be in opposition of that recommendation I’m making to the Court.

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Bluebook (online)
986 S.W.2d 189, 1999 Mo. App. LEXIS 37, 1999 WL 8054, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stufflebean-v-state-moctapp-1999.