Barry v. State
| Decision Date | 15 February 2013 |
| Docket Number | No. SD 31653.,SD 31653. |
| Citation | 404 S.W.3d 338 |
| Parties | Ralph Anthony BARRY, a/k/a Anthony R. Barry, a/k/a Ralph Barry, Movant–Appellant, v. STATE of Missouri, Respondent–Respondent. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
Donald A. Hale, Steelville, MO, for Appellant.
Richard A. Starnes, Jefferson City, MO, for Respondent.
In three points relied on, Ralph Anthony Barry (“Movant”) appeals the motion court's denial after an evidentiary hearing of his Rule 24.035 motion for post-conviction relief.1 Movant's first point challenges the sufficiency of Count III of the State's Information. His second point claims that his plea counsel was ineffective for failing to ask the plea court to allow Movant to withdraw his guilty plea. Movant's final point asserts his guilty plea was unknowing and involuntary because his attorney failed to explain the significance of his plea and plea agreement. Finding no merit in any of these claims, we affirm.
Our review of the denial of a Rule 24.035 motion is “limited to a determination of whether the findings and conclusions of the [motion] court are clearly erroneous.” Rule 24.035(k); see also State v. Roll, 942 S.W.2d 370, 375 (Mo. banc 1997). Such findings and conclusions are clearly erroneous only if our review of the record leaves us with a “definite and firm impression [that] a mistake has been made.” State v. Nunley, 923 S.W.2d 911, 922 (Mo. banc 1996). The motion court's findings and conclusions are presumptively correct, Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991), and Movant must prove his claims by a preponderance of the evidence. Rule 24.035(i); see also Nunley, 923 S.W.2d at 922.
On May 11, 2010, Movant entered an Alford2 plea of guilty to one count of stealing (Count II, see section 570.030) and one count of financial exploitation of the elderly (Count III, see section 570.145).3
At the plea hearing, the State described its evidence on Count III as follows:
That [Movant] began a friendship with [the victim] in the year 2003, and in between the year of 2003 up to and including 2008 as described in the State's information in Count Three, [the victim] was an elderly individual during this time. [The victim] was, based on representations by [Movant] that he was owed significant inheritance, induced ... to part with sums of monies for various items, that those amounts occurred semi-regularly for the period in between 2003 and what was described in the information in Count Three, and 2008 and that those amounts totaled a value of $50,000.00. [The victim] was over the age of 60 years old.
Movant agreed that the State would be able to produce such evidence.
In regard to any plea agreement, the following record was made:
THE COURT: Is there a negotiated plea in this?
[The Prosecutor]: Judge the only recommendation was that we would nolle count I. There is no agreement as to sentence in this particular case.
THE COURT: Okay just an SAR? [Indicating a sentencing assessment report.]
[Plea counsel]: An SAR and no amended information as to prior and persistent felon.
THE COURT: Okay. Is that your understanding[,] Sir? There's no agreement between you and the State?
[Movant]: Right[,] I understand that.
THE COURT: Except as announced by your attorney, the nolle of Count I and no filing of the prior and persistent.
[Movant]: I understand.
Movant stated as follows his understanding that there was no agreement as to what his sentence would be and that he understood the possible range of punishment for his crimes:
THE COURT: Has anyone made any promise about the sentence you are to receive?
[Movant]: No.
THE COURT: Do you understand that no one can promise you what your sentence will be and that any such promise is not binding on this court and that this court can impose any sentence within the range of punishment permitted by law?
[Movant]: I understand.
THE COURT: Sir[, addressing Movant] what is the range of punishment on a class C felony?
[Movant]: Five to seven.
THE COURT: What's the range of punishment on a class B felony?
[Movant]: Up to fifteen.
Movant also assured the court that no threats or promises induced him to plead guilty. The court accepted Movant's guilty plea and ordered a SAR.
At Movant's sentencing hearing, the State initially recommended that Movant receive “no less than five years on the class C felony and not less than ten years on the class B felony and the sentences be run consecutive.” Plea counsel then stated that it was her understanding that the State's recommendation “would be for five and ten consecutive, not as they stated, not less than five and not less than ten, but ten and five, for fifteen consecutive.” The prosecutor replied, “That's what I've stated.” Plea counsel informed the court that this recommendation from the State was based upon an event that occurred after Movant had pleaded guilty but before the start of his sentencing hearing. That event was Movant's agreement to “sign over” the contents of his bank account (approximately $3,000) to the victim of his crimes. In making her sentencing argument, plea counsel stated that if the sentence was “fifteen years,” then it should be concurrent, but she was requesting a sentence of “ideally ten years[.]” She also requested that Movant's sentences run concurrently, not consecutively.
The plea court chose not to follow any of the recommendations made by counsel and sentenced Movant to serve consecutive fifteen- and seven-year sentences. After those sentences were pronounced, Movant stated that he was satisfied with his attorney's representation in the case.4 At no time during the sentencing hearing did anyone claim that there was an agreement between Movant and the State that Movant would be sentenced in accordance with the sentence recommended in the SAR.
In contrast to his previous sworn testimony, Movant's testimony at the motion hearing concerning his understanding of what his punishment would be was as follows:
Q. What did you understand with respect to whether there was a plea deal, not a plea deal, or what, in effect, you were going to get or how it was going to be determined when you entered an Alford plea here on May the 11th, 2010?
A. I thought that I would be sentenced to the—according to the recommendation in the SAR report, which was ten years. I believe I would have gotten an additional five years for the coin theft collection, and it was my belief that I would have gotten ten years.
Q. You mean ten and five concurrent?
A. Yes.
Q. Well, tell the ourt why you formed that belief or why you felt that way?
A. I felt that way because I thought—my thinking when [plea counsel] asked me to sign over that money [the contents of his bank account] I believed that that was a deal made to make sure that the sentences were to run concurrent, and I believed that because the money had been closed out of my account at the [jail] prior to coming to court over here. I believed that [plea counsel] was right in the beginning and that's what was going to happen. I thought that I would get ten years and an additional five years to run concurrent for a total of ten years, although it would have been fifteen.
Q. Well, I'm a little confused because I [motion counsel] wasn't there. Had the money been taken out of your account, the—what was it, $2,800.00, $3,000.00?
A. Something like that.
Q. And that was—was it taken before you entered the Alford plea or between the time you entered the Alford plea and the time the judge sentenced you?
A. It was taken before. My account was closed at the [jail] weeks before.
Q. All right. Had you consented that the money be paid to the [victim]?
A. Not until [plea counsel] had me sign an agreement for me to give that to them.
Q. Was that on the day you entered the Alford?
A. Over here, yes, I believe it was.
Q. All right. So did you get to see the SAR? What's SAR stand for as far as you know?
A. Sentence Assessment Report, I believe it is. [Plea counsel] did read it to me, the public defender—read it to me and I had a copy of it. It got misplaced in the [jail], but I did read it—had it read to me by an attorney.
Q. And you thought you were going to get the sentence that it provided?
A. I believed I was going to, yes, I did.
Q. Before the SAR was completed—I guess it was completed between the time you entered the Alford plea and the time the judge sentenced you?
A. I believe it was at that time. I'm not really sure.
Q. Okay. So you think when you entered the Alford plea though, that you had a deal at that point in time?
A. I—yes, I did, I thought that.
Q. And you thought it would be what the SAR recommended?
A. The SAR report recommended ten years sentence, that's what the recommendation was. I knew that I had two charges and I subsequently would probably be sentenced to ten years on the financial exploitation charge, but I thought I would be sentenced to five years on the coin theft collection to run concurrent with the initial ten years.
....
Q. Now, sir, I'm showing you Petitioner's Exhibit No. 2 []. Tell the Court what you understand that to be.
A. [reading from the document]: Memorandum of Plea Agreement. Plea to SARS, Count II and III as amended. No agreement as to sentence. Nolle prosecute Count I.
Q. Did you sign that?
A. No. No, I did not.
Q. What did you think that meant?
A. I don't know. I never saw it.
Q. It's in the file though?
A. That it is. I have never saw [sic] it. I never signed it or anything. (Emphasis added.)
Movant testified as follows as to whether he would have entered a guilty plea if his understanding of his plea agreement had been different.
Q. If you had been told that the court didn't have to follow—not only didn't have to...
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Hill v. State
...direct appeal, and not for the first time in a claim for post-conviction relief. As this Court clearly indicated in Barry v. State, 404 S.W.3d 338, 344 (Mo.App.S.D.2013), “a challenge to the sufficiency of an information is not a cognizable claim in a post-conviction relief proceeding ... [......