Browder v. State

• Decision Date: 21 December 2010
• Docket Number: No. WD 71438.,WD 71438.
• Citation: Browder v. State, 326 S.W.3d 33 (Mo. App. 2010)
• Parties: Brian L. BROWDER, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

326 S.W.3d 33

Brian L. BROWDER, Appellant,

v.STATE of Missouri, Respondent.

No. WD 71438.

Missouri Court of Appeals, Western District.

Aug. 3, 2010.

Motion for Rehearing and/or Transfer t Supreme Court Denied Sept. 28, 2010.

Application for Transfer Denied Dec. 21, 2010.

Ellen H. Flottman, Columbia, MO, for appellant.

Shaun J. Mackelprang and Jamie P. Rasmussen, Jefferson City, MO, for respondent.

Before Division One: JAMES M. SMART, JR., Presiding Judge, MARK PFEIFFER, Judge and CYNTHIA L. MARTIN, Judge.

CYNTHIA L. MARTIN, Judge.

Brian Browder("Browder") appeals from the trial court's judgment denying his Rule 24.035motion for post-conviction relief.Browder contends his conviction for the class C felony of making a terrorist threat, section 574.115,¹ should be vacatedbecause his guilty plea was not supported by an adequate factual basis.We affirm.

Factual and Procedural Background

Browder was charged with the Class C felony, making a terrorist threat, section 574.115.Specifically, Browder was charged with communicating a threat to cause an incident or condition involving danger to life with the purpose of frightening ten or more people.Section 574.115.1(1).His charge arose out of an incident in October 2006 where Browder contacted the Marshall Satellite School and threatened to "kick someone's ass."Browder was offered probation in exchange for a guilty plea.

On November 13, 2006, Browder pled guilty to the charge.The trial court accepted his guilty plea and sentenced Browder to seven years, with execution of the sentence suspended for a five year probationary period.²

On September 26, 2007, a motion to revoke Browder's probation was filed.Browder admitted to violating the terms of his probation by committing two counts of stealing.³Browder's probation was revoked, and the seven year sentence on the guilty plea was imposed.⁴

Browder timely filed a pro se motion for post-conviction relief under Rule 24.035, which was thereafter amended.In the amended motion, Browder claimed there was no factual basis for his guilty plea.Specifically, Browder contended he was never asked about any facts regarding his purpose to frighten ten or more people, or about any facts supporting that he threatened to cause an incident involving danger to life.

The motion court conducted a hearing on Browder's amended motion.Other than the transcript of the guilty plea hearing conducted before the trial court, no other evidence was presented.The motion court took judicial notice of the file in the underlying criminal case.Browder's counsel asked him to pay particular attention to the information and complaint, and the probable cause affidavit.

The motion court entered its judgment on July 13, 2009, finding as a matter of law that the factual basis was sufficient to support Browder's guilty plea and thus his conviction.Browder's Rule 24.035 motion was, therefore, denied.This appeal follows.

Standard of Review

Review of the denial of a post-conviction relief motion is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous.Rule 24.035(k);Peiffer v. State,88 S.W.3d 439, 445(Mo. banc 2002)."The court's findings of fact and conclusions of law are clearly erroneous only if, after a review of the entire record, the appellate court definitely believes that a mistake was made."Bucklew v. State,38 S.W.3d 395, 397(Mo. banc 2001).

Analysis

Rule 24.02(e) provides that "[t]he court shall not enter a judgment upon a plea of guilty unless it determines that there is a factual basis for the plea."Theintent of the rule is to help to insure that a guilty plea is knowing and voluntary.Carmons v. State,26 S.W.3d 382, 384(Mo.App. W.D.2000).A defendant's plea is supported by an adequate factual basis if it is "voluntarily and understandably made and unequivocal as to the factual requisites necessary to establish each element of an offense."State v. Shafer,969 S.W.2d 719, 734(Mo. banc 1998)."Where the information clearly charges the defendant with all the elements of the crime, the nature of the charge is explained to the defendant, and the defendant admits guilt, a factual basis is established."Johnson v. State,115 S.W.3d 422, 424(Mo.App.2003)(citingIvy v. State,81 S.W.3d 199, 202(Mo.App.2002)).

During Browder's guilty plea hearing, the following exchange occurred:

THE COURT: You are represented her today by Ms. Wasson?

BROWDER: Yes, sir.

....

THE COURT: Have you had plenty of time to discuss this case with her?

BROWDER: Yes, sir.

THE COURT: Have you told her all the facts and circumstances surrounding your case?

BROWDER: Yes, sir.

THE COURT: Has she explained the charges to you and gone over the evidence with you?

BROWDER: Yes, sir.

....

THE COURT: Are you telling me today you understand your rights, you want to waive those rights and you want to bring this matter to conclusion today because you are in fact guilty of the Class C felony of making a terrorist threat?

BROWDER: Yes, I am.

THE COURT: And you're guilty of that offense because between the dates of October 2nd, 2006, and October 4th, 2006, in the County of Saline, State of Missouri, you communicated a threat to cause an incident or condition involving danger to life for the purpose of frightening ten or more people by making a threat to come to the Marshall Satellite School and someone was getting their ass kicked by stating, you know me, if you don't take care of it I'll take care of it.When advised not to make threats you stated, I'm not, I'm just telling you what I'm going to do.

BROWDER: Yes, sir.

THE COURT: Is that what took place?

BROWDER: Yes, sir.

Following this colloquy, the motion court concluded that "[b]ased on the record, the Court finds a factual basis for the plea."

Where the trial court reads the information to a defendant, where the information contains all of the required elements of the crime charged, and where the nature of the charge has been explained to the defendant, the defendant's subsequent guilty plea will satisfy the requirements of Rule 24.02(e).Rios v. State,848 S.W.2d 638, 640(Mo.App. S.D.1993).It is not imperative that the trial court explain every element of the crime charged to the defendant at the plea hearing, as long as the trial court can otherwise surmise that the defendant understands the nature of the charge.Harris v. State,204 S.W.3d 371, 375(Mo.App. S.D.2007).Often, the defendant's understanding of the nature of the charge against him is accomplished by the defendant's discussion with counsel prior to the hearing.Myers v. State,223 S.W.3d 165, 168(Mo.App. S.D.2006).

The elements of the offense of making a terrorist threat pursuant to section 574.115.1(1) are: (a) communicating a threat to cause an incident or conditioninvolving danger to life, (b) with the purpose of frightening ten or more people.Both elements were set forth in the Information which charged Browder.The Information was read by the trial court, essentially verbatim, during the guilty plea hearing.Browder heard the trial court recite the elements of the charge against him, and confirmed he had committed those precise elements.Browder expressly affirmed that he was guilty of the offense of making a terrorist threat by virtue of having engaged in conduct that communicated a threat to cause an incident or condition involving danger to life with the purpose of frightening ten or more people.The particulars of the threat made by Browder were then explored by the trial court and confirmed by Browder.Moreover, Browder confirmed that his trial counsel had specifically discussed the charge and evidence against him prior to his appearance for his guilty plea hearing.Based on this record, a factual basis for Browder's guilty plea was established.

Browder contends that notwithstanding his testimony at the guilty plea hearing, there was an insufficient factual basis for the guilty plea.Specifically, Browder contends that his admission that he"threatened to kick someone's ass" does not mean that he threatened an incident involving danger to life.Browder also contends that no evidence was developed to establish that he had the purpose of frightening ten or more people.In effect, Browder is arguing that his testimony during the guilty plea hearing, where he expressly affirmed that he communicated a threat involving danger to life for the purpose of frightening ten or more people, was inherently insufficient to establish an adequate factual basis for his plea.In support of this contention, Browder relies on Ennis v. State,887 S.W.2d 771(Mo.App. S.D.1994);England v. State,85 S.W.3d 103(Mo.App. W.D.2002);andRoss v. State,48 S.W.3d 667(Mo.App. W.D.2001).Each of these cases is factually distinguishable from the present case.

In Ennis,the defendant was charged with sodomy under section 566.060, and specifically with having deviate sexual intercourse with his granddaughters.887 S.W.2d at 772.The defendant waived arraignment and entered a plea of guilty.Id.He testified during the guilty plea hearing that he had sexual intercourse with his granddaughters who were less than fourteen years of age.Id."Sexual intercourse" is defined as "any penetration, however, slight, of the female sex organ by the male sex organ, whether or not an emission results."Section 566.010(3).In contrast, "deviate sexual intercourse" is defined as "any sexual act involving the genitals of one person and the mouth, tongue, hand or anus of another person."Section 566.010(1).The court found that the requirements of Rule 24.02(e) were not met because the meaning of the term "deviate sexual intercourse" is not "readily apparent in the absence of the statutory definition."Id. at 775.The defendant's acknowledgment that he had sexual intercourse with his granddaughters was not sufficient to permit the trial court to discern whether the defendant was knowingly pleading guilty to "deviate sexual intercourse."

In the present...