Voegtlin v. State

464 S.W.3d 544, 2015 Mo. App. LEXIS 681, 2015 WL 3876591
CourtMissouri Court of Appeals
DecidedJune 23, 2015
DocketNo. ED 101851
StatusPublished
Cited by16 cases

This text of 464 S.W.3d 544 (Voegtlin 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
Voegtlin v. State, 464 S.W.3d 544, 2015 Mo. App. LEXIS 681, 2015 WL 3876591 (Mo. Ct. App. 2015).

Opinion

Kurt S. Odenwald, Presiding Judge

Introduction

Appellant Franklin R. Voegtlin (“Voegfc-lin”) appeals from the judgment of the motion court denying his Rule 24.0351 motion for post-conviction relief without an evidentiary hearing. Voegtlin pleaded guilty to one count of the Class C felony of stealing by deceit at least $500. Voegtlin was sentenced as a prior and persistent offender to ten years’ imprisonment. Voegtlin subsequently filed a Rule 24.035 motion for post-conviction relief alleging ineffective assistance of plea counsel, which the motion court denied without an evidentiary hearing,

Voegtlin now contends on appeal that the motion court clearly erred in denying his motion for post-conviction' relief without an evidentiary hearing because he alleged facts not refuted by the record that would entitle him to relief on his ineffective assistance of counsel claim. Specifically, Voegtlin contends that plea counsel rendered ineffective assistance of counsel by (1) erroneously advising Voegtlin that if he pleaded guilty he would be sentenced to a term of ten- years’ imprisonment, With execution of the sentence suspended, and placed on four years’ probation; (2) failing to investigate Voegtlin’s claim that he had a claim 'of right to the money he was accused of stealing; (3) failing to advise Voegtlin that if he were to be sentenced to prison, he would be required to serve a minimum of 40% of the sentence; and (4) failing to object when Voegtlin was classified as a prior and persistent offender. Voegtlin additionally contends that the motion court erred in failing to include' sufficient findings of fact and conclusions of law in its judgment on the issue of plea counsel’s failure to object to Voegtlin’s prior and persistent offender classification.

■ Because the record of the guilty plea hearing directly refutes Voegtlin’s claim that his plea was involuntary, the motion court did not clearly err in denying Voegt-lin’s ineffective assistance claim without an evidentiary hearing with- respect to Points One .and Two. Because Voegtlin failed .to allege facts warranting relief on his claim of ineffective assistance of counsel with respect to Point Three, the motion court did not clearly .err in denying Voegtlin’s claim without an evidentiary hearing. Finally, because the trial court did not issue any conclusions of law with respect to Voegtlin’s claim relating to. his prior and persistent offender classification, we remand Point Four to the motion court with instructions to provide specific conclusions of law addressing the prior and persistent offender issues raised by Voegtlin in his motion for postconviction relief as required by Rule 24,035(j). Accordingly, we remand with instructions as to Point Four only and affirm the remainder of the motion court’s judgment.

Factual and Procedural History

Voegtlin was charged with one count of stealing by deceit at least $500, a Class C felony. Voegtlin was accused of stealing $1,050 from Ashley Draper (“Draper") by falsely holding himself out as the property manager for Bruce Cilo (“Cilo”), Draper’s landlord. Voegtlin represented to Draper that, he was authorized to accept Draper’s security deposit and first month’s rent on Cilo’s behalf Once Draper paid Voegtlin the $1,050, Voegtlin kept the money, claiming that Cilo owed him payment for work Voegtlin had previously performed for. Cilo.

On March 6, 2013, the State filed a substitute information in lieu of indictment charging Voegtlin as a prior and persistent [548]*548offender. The substitute information alleged that Voegtlin had two prior felony convictions; one conviction for stealing in Washington County on May 1, 2006, and the other conviction for stealing in Jefferson County on April 20, 2006. That same day, Voegtlin entered a plea of guilty before the trial court on the charges set forth in the substitute information.

At the plea hearing, the trial court asked Voegtlin a series of questions' to determiné whether his guilty plea was made voluntarily and intelligently. Voegtlin confirmed that he understood- the charge against him and was aware that he did not have to plead guilty. The trial court explained Voegtlin’s right to a jury trial and the rights associated with a jury trial. Voegtlin confirmed that he understood his rights, and further understood that he was giving up his rights by pleading guilty.

The trial court also questioned Voegtlin about his prior convictions and asked him if he had pleaded guilty to' any prior crimes. Voegtlin stated that he had pleaded guilty before, but was not sure of the dates. Voegtlin stated that he believed he pleaded guilty to a stealing charge, in 1994, and confirmed that he .also., pleaded'guilty to a charge of stealing in 2006.

The State outlined the evidence it would have presented had the case gone to trial. The prosecutor stated that the evidence would show that Voegtlin - “appropriated U.S. currency of a value of at least $600, which property was in the possession of Ashley Draper.” The prosecutor elaborated that Voegtlin appropriated the money from Draper with the intent to deprive her thereof by deceit, in that he represented-to Draper that he was an agent of her landlord and could accept her rental payment. Draper relied on this representation, which, the prosecutor explained, was false and known by Voegtlin to be false. The prosecutor noted that the State would- offer the testimony of Cilo, who would testify that he had occasionally employed Voegtlin as a handyman, but that he had never authorized Voegtlin to rent Cilo’s units or collect rent money on his behalf. The prosecutor further stated that Draper gave Voegtlin $526 for a deposit, followed by another $525 for the first month’s rent. When Cilo became aware of the situation, he reported the incident to the police and gathered receipts showing that Voegtlin had collected payments from Draper in the form of cash.

Voegtlin admitted that he committed the acts described by the prosecutor. Voegt-lin then stated “I worked for Mr. Bruce Cilo and he did give me permission to rent the apartments.” Vpegtlin further stated that Cilo had given him permission to rent the apartments, and that he worked for Cilo and Cilo owed him money. Voegtlin admitted that he helped Draper move into the apartment, took her money, but did not give the rent money to Cilo because Cilo owed him money. The trial court questioned whether Voegtlin was asserting a defense to the charge. Plea counsel responded by stating “[w]ell,. he’s got a defense, but he still took it when he knows he shouldn’t have.” Voegtlin agreed, stating “I shouldn’t have taken it, I wish I would have given him the money.” , Plea counsel explained that because Voegtlin knew Draper’s money was supposed to be paid to Cilo, and because he admitted taking the money and not giving it to the rightful owner, Voegtlin’s actions met the criteria for stealing by deceit. The prosecutor agreed that the elements of stealing by deceit had been met because Voegtlin “never gave the rental payment that Miss Draper thought was for her rent to the landlord.” The trial court asked Voegtlin whether there was anything he wanted to correct about what the prosecutor had said. Voegtlin replied “[n]o, sir.”

[549]*549The trial court then proceeded to discuss the range of punishment. The trial court asked the prosecutor whether he intended to prove that Voegtlin was a prior and persistent offender.. The prosecutor confirmed that he did, and the following exchange took place:

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Bluebook (online)
464 S.W.3d 544, 2015 Mo. App. LEXIS 681, 2015 WL 3876591, Counsel Stack Legal Research, https://law.counselstack.com/opinion/voegtlin-v-state-moctapp-2015.