Bequette v. State

• Citation: 161 S.W.3d 905
• Decision Date: 26 April 2005
• Docket Number: No. ED 84289.,ED 84289.
• Parties: Amil BEQUETTE, Appellant, v. STATE of Missouri, Respondent.
• Court: United States State Supreme Court of Missouri

161 S.W.3d 905

Amil BEQUETTE, Appellant, v. STATE of Missouri, Respondent.

No. ED 84289.

Missouri Court of Appeals, Eastern District, Division Four.

April 26, 2005.

Michelle M. Rivera, St. Louis, MO, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, Jefferson City, MO, for Respondent.

LAWRENCE G. CRAHAN, Judge.

Amil Bequette ("Movant") appeals the judgment denying his Rule 24.035¹ motion for post-conviction relief without an evidentiary hearing. We reverse and remand.

Movant was charged with three counts of criminal non-support. After the State agreed to various conditions, including an agreement to dismiss two of the three counts, Movant pled guilty to one count of criminal non-support. The trial court sentenced Movant to three years' imprisonment.

Movant filed his pro se motion for post-conviction relief after sentencing. Movant's appointed attorney filed an amended motion alleging that his plea counsel ("Counsel") was ineffective in failing to adequately explain defense theories available to Movant or to interview witnesses who could testify in Movant's defense. In particular, Movant contended that he informed Counsel that his children had not lived with their mother, to whom Movant owed child support, for quite some time, since the children had instead lived at different times with their maternal grandmother and Movant's mother. Movant also told Counsel that he directly contributed to the children's support by providing food, clothing, and lodging for the children during this time. According to Movant, Counsel responded that the court records indicating lapses in payment of decretal support to the children's mother were enough to convict him and that he could not present a defense to the charges of criminal non-support. Movant asserted that Counsel incorrectly believed that Movant had no possible defense to his charges of non-support, in that even though the records showed that he missed decretal payments, he could produce evidence that he provided adequate support to the children directly. Consequently, Movant urges that his guilty plea was not voluntary and intelligent because it was based on erroneous advice from Counsel.

The motion court entered its findings of fact and conclusions of law denying Movant's motion without an evidentiary hearing. This appeal follows.

When reviewing a motion court's denial of post-conviction relief, this court is limited to a determination of whether the motion court's findings, conclusions, and judgment are clearly erroneous. Willoughby v. State, 81 S.W.3d 676, 679 (Mo. App.2002). Because the findings of the motion court are presumed to be correct, they are deemed clearly erroneous only if, after a review of the entire record, this court is left with the definite and firm impression that a mistake has been made. Id. Absent an abuse of discretion, we defer to the trial court's determination as to whether a defendant's guilty plea was voluntary. Id.

In Movant's sole point on appeal, he argues that the motion court erred in denying his Rule 24.035 motion without an evidentiary hearing because he alleged facts not conclusively refuted by the record that would entitle him to relief based on Counsel's ineffectiveness. Specifically, Movant argues that Counsel was ineffective in failing to inform him that he had a possible theory of defense and for failing to investigate witnesses who could support his defense. According to Movant, had Counsel further investigated and informed him of his defense, he would have refused to plead guilty.

In order to obtain an evidentiary hearing on claims of ineffective assistance of counsel, (1) the movant must raise facts, not conclusions, warranting relief; (2) the facts alleged must raise matters not refuted by the record; and (3) the matters complained of must have resulted in prejudice to the movant. Morrison v. State, 65 S.W.3d 561, 563 (Mo.App.2002).

A claim of ineffective assistance of counsel requires that Movant show: (1) that Counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances; and (2) that Movant was prejudiced thereby. Rice v. State, 988 S.W.2d 556, 558 (Mo.App.1999) (citing Strickland v. Washington, 466 U.S. 668, 694-95, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). In reviewing Movant's ineffective assistance of counsel claim, there is a strong presumption that Counsel's conduct was reasonable under the circumstances. McVay v. State, 12 S.W.3d 370, 373 (Mo. App.2000). In order to overcome the presumption, Movant must establish a serious dereliction of duty by plea counsel that substantially affected his rights. Id. Prejudice exists in a guilty plea case where a movant proves that, but for counsel's ineffectiveness, he would not have pled guilty and would have demanded a trial. Rice, 988 S.W.2d at 558.

A guilty plea generally waives any future complaint the movant might have about plea counsel's failure to investigate his case. Simmons v. State, 100 S.W.3d 143, 146 (Mo.App.2003). In fact, a guilty plea renders a claim of ineffective assistance of counsel irrelevant except to the extent that is affects the voluntariness and understanding with which the movant made his plea. Id. A plea must not only be a voluntary expression of the defendant's choice; it must also be a knowing and intelligent act done with sufficient awareness of the relevant circumstances and likely consequences of the act. State v. Hunter, 840 S.W.2d 850, 861 (Mo. banc 1992). "A plea of guilty is not made voluntarily if the defendant is misled, or is induced to plead guilty by fraud or mistake, by misapprehension, fear, persuasion, or the holding out of hopes...