Balow v. State, 57977
| Decision Date | 09 October 1990 |
| Docket Number | No. 57977,57977 |
| Citation | 796 S.W.2d 643 |
| Parties | Ronald BALOW, Defendant-Appellant, v. STATE of Missouri, Plaintiff-Respondent. |
| Court | Missouri Court of Appeals |
Ronald Balow, Pacific, pro se.
William L. Webster, Atty. Gen., Stewart M. Freilich, Asst. Atty. Gen., Jefferson City, for plaintiff-respondent.
Movant appeals after the denial of his Rule 24.035 motion without an evidentiary hearing. We affirm.
Movant, Ronald Balow, pled guilty on January 12, 1987, to two counts of fraudulent use of a credit device, two counts of forgery, and three counts of stealing over one hundred and fifty ($150) dollars. The trial court suspended imposition of sentence and movant was placed on probation for three years. On December 4, 1987, movant's probation was revoked and he was sentenced for a total of twenty-one years on the seven counts.
Movant filed a timely pro se Rule 24.035 1 motion to vacate on June 8, 1988. A special public defender was appointed on March 14, 1989, and an unverified amended motion was filed by movant on April 11, 1989.
The state filed a motion to dismiss movant's Rule 24.035 motion on November 14, 1988, and the motion court sustained the state's motion on November 21, 1989. The ruling read as follows: Movant filed a motion seeking leave to file an out-of-time notice of appeal claiming that he had not been notified of the dismissal of his motion and on February 21, 1990 an extension was granted by this court.
On appeal in his principal point, movant contends that the motion court erred in not granting an evidentiary hearing on his claim that he received ineffective assistance of counsel because his defense counsel: " failed to properly advise appellant [movant] of his constitutional rights, did not properly advise appellant of his right to plead not guilty, failed to fully advise appellant of the consequences of his guilty pleas and failed to advise appellant that a violation of his probation could result in the imposition and execution of a twenty-one (21) year prison sentence." 2
In reviewing a dismissal of a Rule 24.035 motion to vacate, we are limited to determining whether the findings and conclusion of the motion court are clearly erroneous. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987); Rule 24.035(j). Such findings and conclusions are deemed clearly erroneous only if, after a review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made. Day v. State, 770 S.W.2d 692, 695-6 (Mo. banc 1989), cert. denied sub nom., Walker v. Missouri, 493 U.S. 866, 110 S.Ct. 186, 107 L.Ed.2d 141 (1989).
To be entitled to an evidentiary hearing movant must: (1) allege facts, not conclusions which, if true, would warrant relief; (2) the allegations of fact must not be refuted by the record; and (3) the matters complained of must have resulted in prejudice to the movant's defense. Camman v. State, 785 S.W.2d 763, 764 (Mo.App.1990).
Movant alleges four bases for his contention that he received ineffective assistance of counsel, but his mere conclusions do not reach the necessary requirement of factual allegations. These allegations are also refuted by the record. The court conducted an extensive examination of the movant while he was under oath to determine whether his guilty plea was knowingly and voluntarily given. During this examination the court advised movant that he had a right to plead not guilty and that by pleading guilty he was waiving certain constitutional rights. Movant was also advised of the range of punishment associated with each count to which he was pleading guilty.
We find the following responses by movant to the court's questions to be especially probative:
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Movant also contends that the motion court erred by dismissing his Rule 24.035 motion to vacate without providing any findings of fact and conclusions of law. Although, Rule 24.035(i) requires that: "[t]he [motion] court shall issue findings of fact and conclusions of law on all issues presented, whether or not a hearing is held," no error will result for failure to make findings of fact and conclusions of...
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...in this case clearly indicates that McDaris was not prejudiced by the failure to file the amended motion on time. Cf. Balow v. State, 796 S.W.2d 643, 645-46 (Mo.App.1990) (remand not required when record refutes claims in post-conviction To illustrate, McDaris first claims in the amended mo......
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State v. Seddens, s. 60654
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