Whaley v. State

833 S.W.2d 441, 1992 Mo. App. LEXIS 1043, 1992 WL 136523
CourtMissouri Court of Appeals
DecidedJune 16, 1992
DocketNo. 17683
StatusPublished
Cited by6 cases

This text of 833 S.W.2d 441 (Whaley 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
Whaley v. State, 833 S.W.2d 441, 1992 Mo. App. LEXIS 1043, 1992 WL 136523 (Mo. Ct. App. 1992).

Opinion

MONTGOMERY, Judge.

Thomas E. Whaley (Movant) appeals from a denial of his pro se motion under Rule 24.035.1 On November 16, 1990, Mov-ant entered a plea of guilty to the class A felony of distribution of a controlled substance within 1,000 feet of a public school, [442]*442in violation of § 195.214.1, RSMo Supp. 1990. He was sentenced to life imprisonment. At his sentencing the State dismissed five other pending drug charges against Movant pursuant to the plea bargain agreement. One of those charges was the class A felony of trafficking drugs in the first degree which subjected Movant to a possible penalty of imprisonment of ten years to thirty years or life imprisonment with no possibility of probation or parole on any sentence pronounced.2

Upon the filing of Movant’s pro se motion, an attorney was appointed to represent him. An unverified amended motion under Rule 24.035(f) was timely filed. After an evidentiary hearing the trial court made findings of fact and conclusions of law and entered judgment denying the pro se motion. By that judgment the amended motion was dismissed for failure to comply with the verification requirements of Rule 24.035, and because not substantially in the form of Criminal Procedure Form No. 40.

Movant presents two claims of error. His first point argues denial of effective assistance of counsel for failure to inform Movant of the statutory minimum sentence applicable to his life sentence. As a result, Movant claims his plea was not knowingly and voluntarily entered because it was based on a mistaken belief as to the sentence he was required to serve.

Point II alleges Movant’s amended motion under Rule 24.035 was dismissed erroneously due to ineffective assistance of counsel for failure to file a properly verified amended motion. According to Mov-ant, such failure constituted his abandonment by counsel.

Appellate review is to determine if the trial court’s determination is clearly erroneous. Rule 24.035(j). Movant had the burden of proof on his motion. Rule 24.035(h). Deference is given to the trial court’s determination of the credibility of the witnesses. Brummell v. State, 770 S.W.2d 379, 380 (Mo.App.1989).

The facts relating to Point I indicate Movant’s plea of guilty was made pursuant to a written plea bargain agreement signed by him. That agreement contemplated Movant would receive a life sentence on a guilty plea to the instant charge in exchange for the State’s dismissal of five other pending charges previously mentioned. At the evidentiary hearing Movant testified one of his attorneys told him if he accepted the plea agreement for life imprisonment, he would be eligible for parole in eight years. Both of his attorneys testified they failed to advise him that a life sentence would require him to serve fifteen years before parole was possible.3 One of Movant’s attorneys testified he “guesstimated” at any amount of time Movant might serve. The other attorney testified he discussed the plea offer with Movant and told him he would probably serve twelve to fifteen years. He acknowledged telling Movant that another attorney said Movant might be eligible for parole in as little as eight years on a non-violent offense. He further seemed to profess ignorance of the application of § 558.019.3 to Movant’s sentence. However, we find nothing in the record to indicate that Mov-ant’s attorneys promised him any amount of time he would actually serve on a life sentence. Prior to his guilty plea Movant could have believed he would possibly serve between eight and fifteen years on a life sentence based on his attorneys’ estimates. Yet, the record made at his guilty plea would cause any reasonable person to place no reliance on estimates of time to be served on a life sentence.

When a movant claims his plea was involuntary because he was misled by counsel, the test is whether movant’s belief was reasonable. “While an individual may proclaim he had a certain belief and may subjectively believe it, if it was [443]*443unreasonable for him to entertain such a belief at the time of the plea proceeding, relief should not be granted.... Where there is no reasonable basis for the belief in light of the guilty plea record, movant is not entitled to relief.”

Holt v. State, 811 S.W.2d 827, 828-29 (Mo.App.1991) (citations omitted).

Movant testified under oath at his guilty plea proceeding that he understood the charges against him, that he was pleading guilty because he was in fact guilty, and admitted the facts concerning the charges against him. The transcript of that proceeding reveals the following exchange between the court and Movant:

Q. Do you understand that if I follow this plea bargain I’m going to be sentencing you to life in prison today? And then it’s up to Probation and Parole when they parole you. Do you understand that?
A. Uh, yes.
Q. And do you understand that, that I have no control over when they parole you, your attorney doesn’t, nobody does but them? We can give you estimates, and they can tell you roughly how long is served on a life sentence, but nobody can guarantee you how long you’re going to serve on that sentence. That’s up to Probation and Parole, and we do not control those people. Do you understand that?
A. Yes, sir.
Q. And of course it’s also somewhat up to you. If you go up there and become a troublemaker, they’re not likely to parole you. You understand?
A. Yes, sir.
Q. Now there’s also mention in Court’s Exhibit Number 2 that other cases against you are going to be dismissed, is that correct?
A. Yes, sir.
Q. Do you, do you feel that those other cases are very serious cases against you?
A. Yes, sir.
Q. And one of those other cases subjects you to a possible penalty of from ten to thirty years, or life, with the requirement that whatever the sentence is, you have to serve every minute of it; and i.e., in other words, there’s no probation or parole possible. Do you understand that?
A. Yes, sir.
Q. And does that have something to do with your willingness to accept this plea bargain where you go up for life, but you do have a chance for parole in a few years?
A. Uh, it was, uh, well, uh, I’m guilty, and it was, uh, the plea was offered, and I, I will accept it.
Q. Well, obviously you don’t want, or I assume that you don’t want to take the chance of being sentenced on this other Class A felony without probation or parole?
A. That’s true, sir.
Q. So you’re willing to plead guilty to this one to get all those other charges dismissed, and specifically get out from under the one where you would have to do it without the possibility of parole? Am I correct?
A. Uh, yes, sir.

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Bluebook (online)
833 S.W.2d 441, 1992 Mo. App. LEXIS 1043, 1992 WL 136523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whaley-v-state-moctapp-1992.