In the Missouri Court of Appeals Eastern District DIVISION TWO
TODD C. WESTERGAARD, ) No. ED100063 ) Movant/Appellant, ) Appeal from the Circuit Court ) of St. Charles County v. ) ) STATE OF MISSOURI, ) Honorable Nancy L. Schneider ) Respondent/Respondent. ) Filed: March 25, 2014
Introduction
Todd C. Westergaard (Movant) appeals from the motion court’s judgment
denying, without an evidentiary hearing, his amended Motion to Vacate, Set Aside or
Correct Judgment and Sentence filed pursuant to Missouri Rule of Criminal Procedure
24.035 (post-conviction motion). We affirm.
Factual and Procedural Background
On May 16, 2011, Movant pleaded guilty to one count of felony forgery and one
count of felony possession of a controlled substance. The prosecutor set forth the factual
basis for the pleas and the range of punishment for each offense. The court advised
Movant of his trial rights and conducted an examination of Movant, which included the
following:
Q. Other than the State’s recommendation, has anyone, including your own attorney, promised you anything to get you to plead guilty? A. No. … Q. Do you understand the maximum sentence you could receive would be fourteen years in prison and a ten thousand dollar fine? A. Yes, ma’am. Q. Do you understand the State’s recommendation? A. Yes, ma’am.
Movant indicated no one had threatened him or forced him to plead guilty. The
State recommended a sentence of four years’ imprisonment on the forgery charge, five
years’ imprisonment on the possession charge, and the dismissal of a third charge of
unlawful possession of drug paraphernalia. The State recommended the sentences run
concurrently to each other and to Movant’s sentence on a parole revocation. Movant
stated he did not wish to make any statements prior to being sentenced. The Court
accepted Movant’s guilty pleas and sentenced Movant in accordance with the State’s
recommendation. Upon examination, Movant stated he had no complaints about his
attorneys, they did everything he asked them to do and they did not do anything with
which he disagreed.
On November 14, 2011, Movant filed his pro se post-conviction motion.
Appointed counsel filed an amended post-conviction motion, alleging Movant’s pleas
were not voluntarily, knowingly, and intelligently made because Movant was induced to
plead guilty by plea counsel misinforming Movant that if he pleaded guilty pursuant to
the plea agreement and received a concurrent five-year sentence, as opposed to a four-
year sentence, on the possession charge he would not have to serve 80% of his four-year
sentence for the forgery charge.
Movant alleged that prior to entering his plea, the State initially offered a plea
deal of seven years on the forgery charge; then offered him five years each on the forgery
and possession charges; and, finally, four years each on the forgery and possession
2 charges. Movant alleged he would testify “he knew he had three prior commitments to
the Missouri Department of Corrections for convictions of prior felony offenses, and that
as a consequence, he might have to serve 80% of any sentence imposed for the forgery
offense[.]” Movant alleged his plea counsel led him to believe that he could avoid the
80% mandatory minimum sentence requirement by obtaining a concurrent sentence on
the possession charge that was longer than the concurrent sentence imposed on the
forgery charge. Movant asserted that based on this belief, he asked plea counsel to
request the State to reinstate the five-year plea offer on the possession charge. Movant
stated he requested the longer sentence on the possession charge because he believed he
would not have to serve 80% of any sentence imposed for the forgery offense. Upon his
commitment to the Department of Corrections, Movant learned he had to serve 80% of
the four-year sentence for forgery or until June 6, 2014, and that he had to serve a
minimum of 15% of the five-year sentence for possession or until January 11, 2012.
Movant alleged he relied upon plea counsel’s inaccurate advice in making his decision to
plead guilty in exchange for a longer sentence.
On May 3, 2013, the motion court entered its judgment denying Movant relief
without an evidentiary hearing, finding his allegations were refuted by the record and his
alleged belief that it was advantageous for him to plead guilty to a longer sentence was
unreasonable. This appeal follows.
Jurisdictional Issue
Before we address the merits of this appeal, this Court must attend to a
jurisdictional issue raised by Movant. Movant has filed a motion for late notice of
appeal, stating that his notice of appeal in this matter was untimely. In his motion,
3 Movant suggests that this Court may be deprived of jurisdiction because the in forma
pauperis order was entered after the notice of appeal was filed.
The trial court’s judgment was issued on May 3, 2013. A motion to proceed in
forma pauperis was filed on June 5, 2013. The notice of appeal was filed on June 10,
2013 and the court granted the in forma pauperis motion on June 12, 2013.
Under Rule 81.05(a),1 the judgment in question became final on Monday, June 3,
2013. Rule 81.05(a); Rule 44.01(a). Therefore, the notice of appeal was due ten days
later on June 13, 2013. Rule 81.04(a). Here, the notice of appeal was filed on June 10,
2013. The in forma pauperis motion was filed on June 5, 2013 and was granted on June
12, 2013.
Prior to January 1, 2012, Rule 81.04(d) provided that a circuit clerk should not
accept a notice of appeal unless it was accompanied by an “order permitting the appellant
to prosecute the appeal in forma pauperis.” However, the courts held that if the notice of
appeal was tendered with a motion to proceed in forma pauperis that was later granted,
the notice of appeal would be considered filed on the date the motion was first filed. See,
State v. Childers, 192 S.W.3d 496, 497 (Mo. App. E.D. 2006); State v. Lawrence, 139
S.W.3d 573, 575 (Mo. App. E.D. 2004).
On January 1, 2012, Rule 81.04 was amended. It now sets forth a procedure
consistent with the cases above. The rule now reads:
(e) Presenting Notice of Appeal to Clerk. The trial court clerk shall note on a notice of appeal the date it was received if it is accompanied by: (1) The docket fee; or (2) A statement citing specific statutory or other authority demonstrating a docket fee is not required by law; or (3) A motion to prosecute the appeal in forma pauperis. 1 All rule references are to Mo. R. Civ. P. 2012, unless otherwise indicated.
4 * * * A notice of appeal received with a motion to prosecute the appeal in forma pauperis is deemed filed on the date the notice is received if the motion to prosecute the appeal in forma pauperis is granted. If the motion is not granted and the time for filing the notice of appeal has not expired, a notice of appeal with a docket fee or with a statement demonstrating no docket fee is required may be presented to the clerk and shall be treated as though no motion to prosecute the appeal in forma pauperis was filed.
Here, the motion to proceed in forma pauperis was filed before the notice of
appeal. However, for purposes of Rule 81.04, if the in forma pauperis motion is filed
before the notice of appeal, then it is considered filed with the notice of appeal.
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In the Missouri Court of Appeals Eastern District DIVISION TWO
TODD C. WESTERGAARD, ) No. ED100063 ) Movant/Appellant, ) Appeal from the Circuit Court ) of St. Charles County v. ) ) STATE OF MISSOURI, ) Honorable Nancy L. Schneider ) Respondent/Respondent. ) Filed: March 25, 2014
Introduction
Todd C. Westergaard (Movant) appeals from the motion court’s judgment
denying, without an evidentiary hearing, his amended Motion to Vacate, Set Aside or
Correct Judgment and Sentence filed pursuant to Missouri Rule of Criminal Procedure
24.035 (post-conviction motion). We affirm.
Factual and Procedural Background
On May 16, 2011, Movant pleaded guilty to one count of felony forgery and one
count of felony possession of a controlled substance. The prosecutor set forth the factual
basis for the pleas and the range of punishment for each offense. The court advised
Movant of his trial rights and conducted an examination of Movant, which included the
following:
Q. Other than the State’s recommendation, has anyone, including your own attorney, promised you anything to get you to plead guilty? A. No. … Q. Do you understand the maximum sentence you could receive would be fourteen years in prison and a ten thousand dollar fine? A. Yes, ma’am. Q. Do you understand the State’s recommendation? A. Yes, ma’am.
Movant indicated no one had threatened him or forced him to plead guilty. The
State recommended a sentence of four years’ imprisonment on the forgery charge, five
years’ imprisonment on the possession charge, and the dismissal of a third charge of
unlawful possession of drug paraphernalia. The State recommended the sentences run
concurrently to each other and to Movant’s sentence on a parole revocation. Movant
stated he did not wish to make any statements prior to being sentenced. The Court
accepted Movant’s guilty pleas and sentenced Movant in accordance with the State’s
recommendation. Upon examination, Movant stated he had no complaints about his
attorneys, they did everything he asked them to do and they did not do anything with
which he disagreed.
On November 14, 2011, Movant filed his pro se post-conviction motion.
Appointed counsel filed an amended post-conviction motion, alleging Movant’s pleas
were not voluntarily, knowingly, and intelligently made because Movant was induced to
plead guilty by plea counsel misinforming Movant that if he pleaded guilty pursuant to
the plea agreement and received a concurrent five-year sentence, as opposed to a four-
year sentence, on the possession charge he would not have to serve 80% of his four-year
sentence for the forgery charge.
Movant alleged that prior to entering his plea, the State initially offered a plea
deal of seven years on the forgery charge; then offered him five years each on the forgery
and possession charges; and, finally, four years each on the forgery and possession
2 charges. Movant alleged he would testify “he knew he had three prior commitments to
the Missouri Department of Corrections for convictions of prior felony offenses, and that
as a consequence, he might have to serve 80% of any sentence imposed for the forgery
offense[.]” Movant alleged his plea counsel led him to believe that he could avoid the
80% mandatory minimum sentence requirement by obtaining a concurrent sentence on
the possession charge that was longer than the concurrent sentence imposed on the
forgery charge. Movant asserted that based on this belief, he asked plea counsel to
request the State to reinstate the five-year plea offer on the possession charge. Movant
stated he requested the longer sentence on the possession charge because he believed he
would not have to serve 80% of any sentence imposed for the forgery offense. Upon his
commitment to the Department of Corrections, Movant learned he had to serve 80% of
the four-year sentence for forgery or until June 6, 2014, and that he had to serve a
minimum of 15% of the five-year sentence for possession or until January 11, 2012.
Movant alleged he relied upon plea counsel’s inaccurate advice in making his decision to
plead guilty in exchange for a longer sentence.
On May 3, 2013, the motion court entered its judgment denying Movant relief
without an evidentiary hearing, finding his allegations were refuted by the record and his
alleged belief that it was advantageous for him to plead guilty to a longer sentence was
unreasonable. This appeal follows.
Jurisdictional Issue
Before we address the merits of this appeal, this Court must attend to a
jurisdictional issue raised by Movant. Movant has filed a motion for late notice of
appeal, stating that his notice of appeal in this matter was untimely. In his motion,
3 Movant suggests that this Court may be deprived of jurisdiction because the in forma
pauperis order was entered after the notice of appeal was filed.
The trial court’s judgment was issued on May 3, 2013. A motion to proceed in
forma pauperis was filed on June 5, 2013. The notice of appeal was filed on June 10,
2013 and the court granted the in forma pauperis motion on June 12, 2013.
Under Rule 81.05(a),1 the judgment in question became final on Monday, June 3,
2013. Rule 81.05(a); Rule 44.01(a). Therefore, the notice of appeal was due ten days
later on June 13, 2013. Rule 81.04(a). Here, the notice of appeal was filed on June 10,
2013. The in forma pauperis motion was filed on June 5, 2013 and was granted on June
12, 2013.
Prior to January 1, 2012, Rule 81.04(d) provided that a circuit clerk should not
accept a notice of appeal unless it was accompanied by an “order permitting the appellant
to prosecute the appeal in forma pauperis.” However, the courts held that if the notice of
appeal was tendered with a motion to proceed in forma pauperis that was later granted,
the notice of appeal would be considered filed on the date the motion was first filed. See,
State v. Childers, 192 S.W.3d 496, 497 (Mo. App. E.D. 2006); State v. Lawrence, 139
S.W.3d 573, 575 (Mo. App. E.D. 2004).
On January 1, 2012, Rule 81.04 was amended. It now sets forth a procedure
consistent with the cases above. The rule now reads:
(e) Presenting Notice of Appeal to Clerk. The trial court clerk shall note on a notice of appeal the date it was received if it is accompanied by: (1) The docket fee; or (2) A statement citing specific statutory or other authority demonstrating a docket fee is not required by law; or (3) A motion to prosecute the appeal in forma pauperis. 1 All rule references are to Mo. R. Civ. P. 2012, unless otherwise indicated.
4 * * * A notice of appeal received with a motion to prosecute the appeal in forma pauperis is deemed filed on the date the notice is received if the motion to prosecute the appeal in forma pauperis is granted. If the motion is not granted and the time for filing the notice of appeal has not expired, a notice of appeal with a docket fee or with a statement demonstrating no docket fee is required may be presented to the clerk and shall be treated as though no motion to prosecute the appeal in forma pauperis was filed.
Here, the motion to proceed in forma pauperis was filed before the notice of
appeal. However, for purposes of Rule 81.04, if the in forma pauperis motion is filed
before the notice of appeal, then it is considered filed with the notice of appeal.
Therefore, since the motion was granted, the notice of appeal is deemed filed on June 10,
2013 and it is timely. The motion for late notice of appeal is denied as moot.
Standard of Review
Our review of the denial of a Rule 24.035 motion is “limited to a determination of
whether the findings and conclusions of the trial court are clearly erroneous.” Rule
24.035(k). This Court will find error only if we have a “definite and firm belief that a
mistake has been made.” Evans v. State, 315 S.W.3d 404, 405 (Mo. App. E.D. 2010).
The appellant has the burden of proving error by a preponderance of the evidence.
Buckner v. State, 35 S.W.3d 417, 420 (Mo. App. W.D. 2000).
Discussion
Movant argues the motion court erred in denying his post-conviction motion
without an evidentiary hearing because he pled facts that warranted relief and were not
conclusively refuted by the record, in that he was denied his rights to effective assistance
of counsel and due process of law because his plea counsel induced his unknowing,
unintelligent and involuntary plea on the mistaken belief that if he pleaded guilty
5 pursuant to the plea agreement and received a concurrent sentence for possession that
was longer than the concurrent sentence imposed for forgery, he would not have to serve
a mandatory minimum 80% of his sentence for forgery.
To be entitled to an evidentiary hearing, the movant must plead facts, not
conclusions, which are not refuted by the record and if true would warrant relief, and the
matters complained of must have resulted in prejudice to the movant. Wooldridge v.
State, 239 S.W.3d 151, 154 (Mo. App. E.D. 2007). A defendant who pleads guilty
waives all claims of error except those affecting the voluntariness of the plea or the
understanding with which the plea was made. Johnson v. State, 318 S.W.3d 313, 317
(Mo. App. E.D. 2010).
Pursuant to Section 558.019, a felony offender with three or more prior
commitments to the Department of Corrections on unrelated felony convictions must
serve a minimum prison term of 80% of the sentence imposed by the court in the
underlying felony case. Section 558.019.2(3) RSMo 2006.
Plea counsel does not have an affirmative obligation to inform a defendant about
his parole eligibility, a collateral consequence of his plea. Savage v. State, 114 S.W.3d
455, 458 (Mo. App. E.D. 2003). However, a plea may be considered involuntary if
counsel misinforms the defendant as to the effects of a plea. Id. “Where plea counsel
affirmatively misinforms his client about a consequence of pleading guilty and the client
relies upon the misrepresentation in deciding to enter his plea, counsel’s incorrect advice
may rise to the level of constitutionally ineffective assistance of counsel.” Id. Movant
must show that his reliance upon counsel’s alleged misrepresentation was objectively
reasonable. Id. n. 2; Patterson v. State, 92 S.W.3d 212, 216 (Mo. App. W.D. 2002).
6 The motion court did not err in denying Movant’s post-conviction motion without
an evidentiary hearing. Movant alleged in his petition that “he knew he had three prior
commitments to the Missouri Department of Corrections for convictions of prior felony
offenses, and that as a consequence, he might have to serve 80% of any sentence imposed
for the forgery offense[,]” refuting his assertion he did not know he would have to serve
80% of his sentence for the felony conviction of forgery. Furthermore, at the plea
hearing, Movant indicated he understood the State’s recommendation, he had not been
promised anything other than the State’s recommendation in exchange for his plea of
guilty and he did not wish to make any statements prior to being sentenced. In addition,
Movant’s alleged belief that he could avoid the mandatory minimum sentence
requirement based exclusively on receiving a longer sentence on a separate crime is
objectively unreasonable.
Based on the foregoing, the motion court did not err in denying Movant’s post-
conviction motion without an evidentiary hearing. Movant’s point on appeal is denied.
Conclusion
The judgment of the motion court is affirmed.
_____________________________ Sherri B. Sullivan, J.
Lawrence E. Mooney, P.J., and Robert G. Dowd, Jr., J., concur.