Brown v. Gammon, WD

• Decision Date: 29 April 1997
• Docket Number: No. WD,WD
• Citation: 947 S.W.2d 437
• Parties: In re Myron BROWN, Petitioner, v. James A. GAMMON, Respondent. 52841.
• Court: Missouri Court of Appeals

Page 437

947 S.W.2d 437

In re Myron BROWN, Petitioner, v. James A. GAMMON, Respondent.

No. WD 52841.

Missouri Court of Appeals Western District.

April 29, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied July 1, 1997.

Ellen H. Flottman, Asst. Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Attorney General, Stephen D. Hawke, Assistant Attorney General, Jefferson City, for respondent.

Before BRECKENRIDGE, P.J., and HANNA and SMART, JJ.

BRECKENRIDGE, Presiding Judge.

Myron Brown pleaded guilty to one count of distribution of a controlled substance near a school, in violation of § 195.214, RSMo 1994. ¹ After his plea of guilty, the trial court sentenced Mr. Brown to twenty years imprisonment, but retained jurisdiction to place him on probation after 120 days, under the provisions of § 559.115. In his petition for a writ of habeas corpus, Mr. Brown contends that he is being unlawfully detained because his guilty plea has since been rendered involuntary. He argues this is so because, as part of his plea agreement, the trial court offered to place him on probation after 120 days imprisonment if he completed a substance abuse treatment program while in prison. Mr. Brown argues that after he completed the program, the trial court denied him probation in violation of the plea agreement, thereby rendering his guilty plea involuntary.

On November 23, 1993, Mr. Brown pleaded guilty to one count of sale of a controlled substance near a school in violation of § 195.214. Mr. Brown's plea was pursuant to a plea bargain for a recommended sentence of twelve years in prison. Prior to accepting the plea, the court questioned Mr. Brown concerning his understanding, including asking him if anyone had promised him probation, to which Mr. Brown responded, "No, sir."

After finding that Mr. Brown's guilty plea was voluntary, the trial court ordered a presentence investigation report. The presentence investigation recommended that the trial court deny probation for Mr. Brown. The report also indicated that Mr. Brown should undergo substance abuse treatment and rehabilitation.

At the sentencing hearing, the trial court initially referred to discussions between the court and counsel concerning the court's proposal of a sentence other than the twelve years of the plea bargain. The trial court informed Mr. Brown that it was willing to sentence him to the agreed upon term of twelve years. However, the trial court also expressed its desire to sentence Mr. Brown to a term of twenty years in prison under the one-hundred-and-twenty-day-call-back provisions of § 559.115. ² At the sentencing hearing, the following colloquy between the court and Mr. Brown then occurred:

Judge Frawley:

[M]y view is I'm giving you an opportunity to get out in 120 days. It's an opportunity the State has not recommended. It is an opportunity that I suspect they oppose. And in my view of life, if one is given an opportunity, there is a potential cost if one does not seize that opportunity.

I'm giving you a chance--instead of doing whatever it would have to be, let's say a third of twelve years or roughly four years--instead of having to do four, I'm giving you the opportunity to only have to do 120 days. My view is that if you go down and you screw that up and you blow it off, then there should be a cost, a penalty. I don't think that's unfair.

And so that's one benefit I'm giving you and one potential cost that you have. The other penalty that you have is--from my standpoint--is if I give you a 559, the number of years to which you can be sentenced is only that which I give you today. And so if you complete the 120-day program and come out on the street, my view is that there should be a penalty, an extreme penalty, if you screw that up.

So there's two things in your life that you have to do correctly, and there's a penalty if you screw up either of them. So that's the reason for the additional years. I am happy to sentence you to the twelve years as the State has recommended. I am not going to be mad, upset, feel that you've done something to me unfairly if you now tell me you've changed your mind and wish to be sentenced to the twelve. Those are the reasons why it's twenty ...

Mr. Brown agreed to this proposal and pleaded guilty. There was no questioning of Mr. Brown as to his understanding of the agreement as proposed by the court. He was merely asked, "Mr. Brown, is it still your wish to be sentenced pursuant to Section 559?" To which he responded, "Yes, sir." The trial court then sentenced Mr. Brown to a twenty-year sentence under the call-back provision of § 559.115 "with the express understanding that Defendant shall participate in substance abuse treatment at the Mineral Area or Farmington Treatment Center."

Mr. Brown was remanded to the department of corrections. Prior to the end of the 120-day period, a Court Report Investigation was filed with the trial court. As part of the report, the Board of Probation and Parole evaluated Mr. Brown's performance in the substance abuse program at the Farmington Treatment Center. It was reported that Mr. Brown was only going to be able to complete 11 weeks of the full 12 week FTC program prior to the end of the 120 days of shock probation. This did not appear, however, due to anything other than a lack of time. Mr. Brown received an overall "fair" rating. The report noted that Mr. Brown had "done little to personalize or internalize his recovery program" and that his basic understanding of the twelve-step program was "fair." However, the report indicated that Mr. Brown received no conduct violations and only one program infraction for violating minor rules while in the substance abuse treatment program. The reported ended with Farmington Treatment Center personnel requesting that Mr. Brown be released at the end of the 120-day period.

Based on this report, the trial court denied Mr. Brown probation. In due course, Mr. Brown completed the substance abuse program and received an official certificate of completion. Thereafter, Mr. Brown filed a petition for a writ of habeas corpus in the Circuit Court of Randolph County. The circuit court denied his petition without an evidentiary hearing based solely on its belief that because the trial court denied him probation, Mr. Brown was not "entitled to such release." Subsequently, Mr. Brown filed a petition for a writ of habeas corpus in this court.

Before considering the merits of Mr. Brown's claim, this court must determine whether habeas corpus is the appropriate remedy in this case. "Any person restrained of liberty within this state may petition for a writ of habeas corpus to inquire into the cause of such restraint." Rule 91.01; § 532.010, RSMo 1994. Rule 91 proceedings are limited "to determining the facial validity of confinement." State ex rel. Haley v. Groose, 873 S.W.2d 221, 222 (Mo. banc 1994) (quoting State ex rel. Simmons v. White, 866 S.W.2d 443, 445 (Mo. banc 1993)). Under the statutes that have codified the common law writ, the "facial validity" of confinement is determined on the basis of the entire record of the proceeding in question. State ex rel. Simmons, 866 S.W.2d at 445. Habeas corpus is also available in cases where there are circumstances so rare and exceptional that a manifest injustice would result in the absence of habeas corpus relief. Reuscher v. State, 887 S.W.2d 588, 591 (Mo. banc 1994).

Mr. Brown's essential complaint relates to the voluntariness of his guilty plea. As such, this is normally a matter that must be pursued in a Rule 24.035 postconviction motion. Rule 24.035(a); Vernor v. State, 894 S.W.2d 209, 210 (Mo.App.1995). However, Mr. Brown was not and could not have been cognizant of his claim until the ninety-day time limit of the rule had expired. The time limits of Rule 24.035 are to be strictly adhered to and are not suspended in cases involving "shock probation." Matthews v. State, 863 S.W.2d...