Chapman v. State, 44060
| Decision Date | 23 February 1982 |
| Docket Number | No. 44060,44060 |
| Citation | 641 S.W.2d 428 |
| Parties | Jerome CHAPMAN a/k/a Dewey Sharp, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Stephen C. Banton, Clayton, for appellant.
John Ashcroft, Atty. Gen., Kristie Green, Asst. Atty. Gen., Jefferson City, George A. Peach, Circuit Atty., St. Louis, for respondent.
Movant appeals from the denial, without an evidentiary hearing, his Rule 27.26 motion. Movant pleaded guilty to burglary second degree, a violation of § 569.170 RSMo. 1978 and was sentenced to three years with the Department of Corrections to be served consecutive to a sentence received in St. Louis County. We affirm.
In his Rule 27.26 motion, movant contends he was denied effective assistance of counsel because his attorney led him to believe his sentence would run concurrent to the sentence received in St. Louis County "despite what the judge [might] say" during sentencing. His plea was therefore not made intelligently since his attorney misled him "as to what was taking place." The court filed findings of fact and conclusions of law and found movant's claim refuted by the record and held he was not entitled to an evidentiary hearing pursuant to Rule 27.26(e).
Movant must establish on appeal, that the findings, conclusions and judgment of the trial court are clearly erroneous. Rule 27.26(j). In order to be entitled to an evidentiary hearing, movant must plead facts which, if true, would entitle him to relief and must show that those factual allegations are not refuted by the facts elicited at the guilty plea hearing. Smith v. State, 513 S.W.2d 407, 411 (Mo.banc 1974).
After a plea of guilty has been entered, the determination of the adequacy of counsel is immaterial, except to the extent it affects the voluntariness of the plea. Wells v. State, 621 S.W.2d 553, 554 (Mo.App.1981). When the involuntariness of movant's plea is based on being misled by counsel, the test is whether movant's belief by which he claims to have been misled, was reasonable. Bierey v. State, 586 S.W.2d 450, 452 (Mo.App.1979). A court may properly examine the record of the guilty plea proceedings to determine whether it refutes his contention. 586 S.W.2d at 452.
Here, the record 1 clearly refutes any notion that movant could reasonably believe that he was to receive a concurrent sentence, statements of the judge notwithstanding. The lengthy in-court exchange between the judge, the assistant prosecuting attorney, defense counsel and the defendant completely disproves movant's allegation that he could have been laboring under a misapprehension that the sentences would run concurrently. He was offered two opportunities by the trial court to withdraw his guilty plea after it was apparent the sentences would run consecutively.
The trial court's finding that movant's factual allegations were refuted by the guilty plea record is not clearly erroneous, and there was no need for an evidentiary hearing. Bierey v. State, 586 S.W.2d 450 (Mo.App.1979).
Affirmed.
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THE COURT: Okay. Are you expecting me to sentence you, if I take your plea of guilty and accept it, are you expecting me to sentence you to three years in the Missouri Department of Corrections without probation, said three year sentence to run consecutively to any sentence imposed in Cause No. 398217 of St. Louis County, Missouri?
A. Yes, sir.
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