Walter D. Combs v. State of Missouri

Opinion

In the Missouri Court of Appeals Eastern District

DIVISION TWO

WALTER D. COMBS, ) No. ED108931 )

Movant/Appellant, ) Appeal from the Circuit Court ) of Cape Girardeau County v. ) Cause No. 19CG-CC00174 )

STATE OF MISSOURI, ) Honorable Benjamin F. Lewis )

Respondent/Respondent. ) Filed: August 3, 2021

OPINION

Walter D. Combs, Jr., (Appellant) appeals the motion court’s denial, without an evidentiary hearing, of his Amended Motion to Vacate, Set Aside, or Correct Judgment and Sentence pursuant to Rule 24.035.1 Appellant argues the motion court erroneously denied his claims of ineffective assistance of counsel enumerated in his post-conviction motion. We affirm.

Factual and Procedural Background The state charged Appellant by information as a persistent offender with one count of driving while intoxicated, a class E felony, in violation of § 577.010 RSMo.2 On December 19, 2018, Appellant waived his right to trial and pleaded guilty as charged.

1 All references are to Missouri Supreme Court Rules (2021).

2 All statutory references are to RSMo. 2016 unless otherwise noted.

At the guilty plea hearing, the court asked Appellant if anyone had made any promises or threats to induce his plea. Appellant responded, “No.” Appellant confirmed he understood that the charges against him carried a range of punishment of up to four years in the Missouri Department of Corrections. Appellant also said he understood the state was recommending he serve four years and his attorney was “free to argue for anything less than that.” Additionally, Appellant acknowledged it was still his intention to plead guilty despite potentially facing four years of incarceration. Appellant stated his attorney investigated the facts of the case, negotiated the plea, and otherwise did everything asked of him to Appellant’s satisfaction. The court accepted Appellant’s plea, ordered a sentencing assessment report, and scheduled the sentencing within one month, specifically January 14, 2019.

At the January 14 sentencing, Appellant’s attorney argued the court should consider 30 days of shock incarceration with probation or, alternatively, 120-day institutional treatment in the Missouri Department of Corrections. When arguing for probation or a less restrictive sentence, counsel discussed Appellant’s participation at the Community Counseling Center where he was seeking treatment for substance abuse.3 Moreover, counsel informed the court that Appellant’s supervisor at the counseling center, Rose Grundee, was present for the sentencing and had informed counsel that Appellant was doing well under the circumstances. Besides informing the court about both Appellant’s efforts to pursue treatment and the presence of the individual most responsible for monitoring his progress, counsel also focused on Appellant’s active work schedule and family life as reasons for favoring probation over incarceration.

Consistent with the State’s recommendation, the court sentenced Appellant to four years of imprisonment. According to the court, Appellant’s criminal history involving felony offenses

3 Appellant was already on parole at the time of the hearing and his enrollment at the Community Counseling Center was a condition of his parole.

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and a pattern of probation and parole revocations influenced the sentencing decision. Again, Appellant said he was satisfied with the services provided by his attorney and the court found no probable cause to believe Appellant had been deprived of effective assistance of counsel.

On June 17, 2019, Appellant timely filed his pro se motion for post-conviction relief pursuant to Rule 24.035. On January 15, 2020, post-conviction counsel filed Appellant’s amended Rule 24.035 motion, alleging ineffective assistance of counsel for (1) plea and sentencing counsel misadvising Appellant about how long he would serve, and (2) his attorney failing to obtain records reflecting Appellant’s participation at the Community Counseling Center and submit these at the sentencing. The motion court denied Appellant’s motion without an evidentiary hearing. This appeal follows.

Points Relied On

In his first point on appeal, Appellant argues the motion court clearly erred in denying, without an evidentiary hearing, his Rule 24.035 motion alleging his plea counsel misadvised him about the sentence he would receive and the amount of time he would serve if he pleaded guilty.

In his second point, Appellant argues his post-conviction motion was erroneously denied without an evidentiary hearing because sentencing counsel failed to obtain records verifying Appellant’s treatment at the Community Counseling Center and submit these at the sentencing.

Standard of Review

This court’s review of the denial of a Rule 24.035 motion for post-conviction relief is limited to a determination of “whether the findings and conclusions of the motion court are clearly erroneous.” Pettry v. State, 345 S.W.3d 335, 337 (Mo. App. E.D. 2011) (citing Rule 24.035(k)). The motion court is presumptively correct. Whitley v. State, 501 S.W.3d 531, 534 (Mo. App. E.D. 2016). “The motion court’s findings and conclusions are clearly erroneous only

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if, after the review of the record, the appellate court is left with the definite and firm impression that a mistake has been made.” Brooks v. State, 242 S.W.3d 705, 708 (Mo. banc 2008).

Discussion

To be entitled to an evidentiary hearing on a motion for relief under Rule 24.035, “a movant must (1) allege facts, not conclusions, that, if true, would warrant relief; (2) the facts alleged must raise matters not refuted by the record and files in the case; and (3) the matters complained of must have resulted in prejudice to the movant.” Whitehead v. State, 481 S.W.3d 116, 122 (Mo. App. E.D. 2016).

For evidentiary hearing requests involving claims of ineffective assistance of counsel, a movant must show “(1) trial 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.” Burgess v. State, 455 S.W.3d 21, 23-24 (Mo. App. E.D. 2014). In the context of guilty pleas, counsel’s alleged deficient performance is “immaterial except to the extent it impinges on the voluntariness and knowledge with which a [movant] pled guilty.” Cain v. State, 859 S.W.2d 715, 717 (Mo. App. E.D. 1993); see also Hicks v. State, 918 S.W.2d 385, 386 (Mo. App. E.D. 1996). To prove prejudice in that context, a movant must demonstrate that, but for counsel’s deficient representation, a reasonable probability exists that he or she would not have pleaded guilty and instead would have insisted on exercising his or her right to trial. State v. Evans, 524 S.W.3d 530, 533 (Mo. App. E.D. 2017). When proving prejudice triggered by counsel’s errors occurring at sentencing, a movant must show a reasonable probability that, but for counsel’s deficient performance, he or she would have received a lesser sentence. Rush v. State, 366 S.W.3d 663, 666 (Mo. App. E.D. 2012).

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Point I – Plea Counsel’s Misadvice Concerning Appellant’s Sentence Appellant claims plea counsel misadvised him about the sentence he would receive and the amount of time he would serve if he pleaded guilty. In particular, counsel was allegedly ineffective for informing him that in the “worst case scenario” he would receive either thirty days of shock incarceration with probation, 120-day institutional treatment in the Missouri Department of Corrections, or a sentence lesser than the maximum sentence allowed under the law. We agree with the trial court and find counsel’s performance did not affect the voluntariness of Appellant’s plea.

The “mere prediction or advice of counsel” does not render a guilty plea involuntary.

Spencer v. State, 805 S.W.2d 677, 679 (Mo. App. E.D. 1990). This is especially true in cases where a defendant is informed of and confirms he understands the full range of punishment associated with the charges against him. See Cain, 859 S.W.2d at 717 (citing Spencer, 805 S.W.2d at 678-79); Loudermilk v. State, 973 S.W.2d 551, 554 (Mo. App. E.D. 1998). Appellant’s alleged misunderstanding of the maximum sentence he was capable of receiving is directly refuted by his testimony at the guilty plea hearing. At the guilty plea hearing, Appellant confirmed numerous times that he understood he could be sentenced to up to four years of imprisonment.4 Any misunderstanding as to the maximum range of punishment was corrected by the court and thus Appellant’s reliance on his attorney’s advice was not objectively reasonable. See Thornton v. State, 456 S.W.3d 435, 439-40 (Mo. App. W.D. 2014).

Moreover, “[a] motion court properly denies an evidentiary hearing on a motion for post-

conviction relief where the movant repeatedly assured the plea court that he was satisfied with counsel’s representation and that counsel did everything he requested and the movant was given

4 Appellant further testified that no one promised him anything in exchange for his guilty plea.

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ample opportunity to express his duress to the court.” Mitchell v. State, 439 S.W.3d 820, 822-23 (quoting Nichols v. State, 409 S.W.3d 566, 570 (Mo. App. E.D. 2013)). Thus, “a movant is not entitled to a post-conviction evidentiary hearing on an ineffective assistance of counsel claim if the guilty plea proceedings directly refute the movant’s claims that the plea was involuntary.” Id. at 822. Here, after being informed of the court’s decision to sentence Appellant to four years of imprisonment, Appellant indicated that he was still satisfied with counsel’s investigation and negotiation of his plea. The court found no probable cause to believe Appellant had been deprived of effective assistance of counsel. We agree. Because the record refutes Appellant’s claim, we conclude counsel’s performance did not have a prejudicial effect on Appellant’s plea.

Appellant’s brief also mentions alleged statements by counsel regarding parole eligibility.

Appellant says that he will “now have to serve close to 80%” of his four-year sentence but that his attorney told him he could serve less than that. However, Appellant fails to cite or include in the record the authority requiring that he serve “close to 80%” of his sentence. See Rules 84.04(c) and 84.04(e); Rule 81.12(a). Appellant has the burden of presenting a record containing all information necessary for this court to evaluate the issues. Royale Marketing, Inc. v. Bender, 14 S.W.3d 661, 662 (Mo. App. E.D. 2000); Rowe v. Norfolk & Western Ry. Co., 787 S.W.2d 751, 753-54 (Mo. App. E.D. 1990) (citing Rule 81.12).5 Without being presented with a clear statement or description of the alleged requirement or its source, we are unable to meaningfully review this aspect of Appellant’s first point on appeal.6 See Carmen v. Olsen, 611 S.W.3d 368, 373 (Mo. App. E.D. 2020).

5 See also Cent. Am. Health Scis. Univ., Belize Med. Coll. V. Norouzian, 236 S.W.3d 69, 79 (Mo. App. W.D. 2007) (“Where . . . the record does not contain all information and documents necessary for this [c]ourt to determine an issue presented on appeal, review by this court is impossible, and the claim of error must be dismissed.”). 6 The motion court’s findings are presumed correct. Davis v. State, 486 S.W.3d 898, 905 (Mo. banc 2016).

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As the record does not demonstrate that counsel’s alleged misadvice regarding Appellant’s sentence rendered his plea involuntary, we deny his first point on appeal.

Point II – Sentencing Counsel’s Failure to Introduce Treatment Records In his second point, Appellant argues his Rule 24.035 motion was erroneously denied without an evidentiary hearing because sentencing counsel’s failure to obtain and present records at the sentencing hearing documenting Appellant’s enrollment and treatment at the Community Counseling Center constituted ineffective assistance of counsel. We disagree.

“When a movant pleads guilty and then affirmatively states in court that he is satisfied with the performance of his trial counsel, he is not then entitled to an evidentiary hearing on a claim that counsel was ineffective for failure to investigate, because such a claim is refuted by the record.” Simmons v. State, 100 S.W.3d 143, 146 (Mo. App. E.D. 2003). At the plea hearing and following the court’s inquiry, Appellant confirmed he was satisfied with the services of his attorney, his attorney’s case investigation, and his attorney’s efforts to negotiate his plea deal. Additionally, Appellant confirmed his attorney did everything Appellant requested. The record of the plea hearing therefore refutes Appellant’s claim. Id.; Nichols, 409 S.W.3d at 571.

Later at the sentencing hearing and after announcing the four-year term of imprisonment, the court again questioned Appellant regarding his satisfaction with his attorney:

THE COURT: Now, Mr. Combs, when you entered your plea of guilty, you testified that [counsel] had investigated the facts of this case to your satisfaction. Was that true?

[APPELLANT]: Yes, sir.

THE COURT: And you testified that he had negotiated the plea to your satisfaction. Was that true?

[APPELLANT]: Yes, sir.

THE COURT: And you testified that he had done everything you asked him to do. Was that true?