Elverum v. State

• Decision Date: 18 September 2007
• Docket Number: No. ED 88496.,ED 88496.
• Citation: 232 S.W.3d 710
• Parties: Norman B. ELVERUM, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

232 S.W.3d 710

Norman B. ELVERUM, Appellant, v. STATE of Missouri, Respondent.

No. ED 88496.

Missouri Court of Appeals, Eastern District, Division One.

September 18, 2007.

Alexandra Johnson, St. Louis, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Lisa M. Kennedy, Jefferson City, MO, for respondent.

NANNETTE A. BAKER, Judge.

Introduction

Norman Elverum ("Movant") appeals from the denial of his motion for post-conviction relief under Rule 24.035.¹ He raises four points on appeal. Movant claims that the motion court erred when it denied his motion for post-conviction relief without an evidentiary hearing because: 1) his plea counsel failed to advise him of the correct range of punishment for the crimes with which he was charged; 2) his sentencing counsel violated attorney-client privilege by telling the court that Movant had "picked up new charges in Colorado" and did so without verifying the correctness of the information; 3) the court failed to personally address Movant as to the ranges of punishment and ensure that he understood them before accepting his guilty plea; and 4) the court plainly erred in sentencing him to sixteen years' incarceration for property damage in the first degree under Section 569.100² without a factual basis. We reverse and remand.

Factual and Procedural Background

On July 23, 2003, the State charged Movant by information with four counts of property damage in the first degree under Section 569.100³ in that on May 16, 2003, in St. Francois County, Movant knowingly damaged "a 1995 Chevy Fleet, which property was owned by Mark Upchurch, by shooting out the back glass, and the damages to such property exceeded five hundred dollars . . . a 1995 Pontiac Grand Prix, which property was owned by Cheri O'Neal, by shooting out the windshield and back glass, and the damages to such property exceeded five hundred dollars . . . a 1998 Chevy Cavalier, which property was owned by Mark Upchurch, by shooting out the back glass, and the damages to such property exceeded five hundred dollars . . . [and] a 1999 Dodge B350, which property was owned by P.A.T.H., by shooting out the back windows, and the damages to such property exceeded five hundred dollars."

On October 17, 2003, Movant pleaded guilty on each of the four counts to causing damage to property exceeding five hundred dollars. Movant's plea was part of a group plea, and was taken simultaneously with four other defendants' pleas on unrelated charges.⁴ The court read the charges to Defendant as written in the information.⁵ Each charge was read with the statement "and damages to such property exceeded five hundred dollars."

Later in the proceeding, addressing Movant, the court stated:

Mr. Elverum, you're charged with four counts of class D felony, and, again,⁶ the range is up to four years in the State Department of Corrections or a county jail term of up to one year or a fine of up to five thousand dollars or a combination of such fine and confinement.

Thereafter, the court continued with the proceedings against other defendants.

When the court returned to Movant's case, the State said:

On this case, Judge, the State will be recommending a total of ten years in the Department of Corrections, stand silent in the event of a favorable pre-sentence investigation. If he's placed on probation, the State will be seeking full restitution. There are two other unrelated cases that are to be dismissed as a part of this plea agreement. But we'll be seeking restitution in full on those cases as well.

On December 17, 2003, the court sentenced Movant. Movant received a suspended imposition of sentence and he was placed on probation for five years. At the sentencing hearing, the court discussed the sentencing with Movant's attorney:

Attorney: In this case my client does want the Court to grant him a suspended imposition of sentence. We've had a long discussion about the disparity between the cap and the maximum. Should he take the SES, he has a ten-year cap. Without that and the SIS, he faces, I believe, it's 28 years — four C felony counts.

Court: No, they are D's.

Attorney: I'm sorry, that's correct, sixteen ...

On February 13, 2004, the court entered an order of probation for Movant. One of the conditions of Movant's probation was that Movant was required to appear for a "prison tour." Movant failed to appear. On June 4, 2004, the court issued a capias warrant for Movant for a probation violation. A probation violation hearing was scheduled for September 17, 2004.

On September 17, 2004, Movant failed to appear at the probation violation hearing. The court revoked Movant's bond and ordered a capias warrant for his arrest. On August 22, 2005, Movant was served with the arrest warrant. On September 16, 2005, following a probation violation hearing, the court revoked his probation. Movant was sentenced to four years on each of the four counts of property damage in the first degree, with the sentences to run consecutively for a total of sixteen years.

Movant filed a pro se motion for post-conviction relief under Rule 24.035 and later his attorney filed an amended motion. In his motion, Movant claimed: 1) the court failed to personally address Movant as to the ranges of punishment and assure that Movant understood the ranges before accepting the guilty plea; 2) plea counsel was ineffective in that plea counsel failed to fully advise Movant as to range of punishment Movant faced; and 3) sentencing counsel violated attorney/client confidentiality in that counsel informed the court that the reason Movant failed to appear was that Movant had been "picked up" on a drug charge out of state.

The court denied Movant's motion without an evidentiary hearing. Movant appealed.

Standard of Review

We review the denial of a post-conviction motion under Rule 24.035 to determine whether the motion court's findings of fact and conclusions of law were clearly erroneous. Weeks v. State, 140 S.W.3d 39, 44 (Mo. banc 2004). Findings and conclusions are clearly erroneous if, after a review of the entire record, the court is left with the definite and firm impression that a mistake has been made. Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000). Under Rule 24.035(h), if the court determines that "the motion and the files and records of the case conclusively show that the movant is entitled to no relief, a hearing shall not be held."

A motion court is not required to grant an evidentiary hearing on a claim for post-conviction relief unless: 1) the movant pleads facts that if true would warrant relief; 2) the facts alleged are not refuted by the record; and 3) the matter complained of resulted in prejudice to the movant. Bequette v. State, 161 S.W.3d 905, 907 (Mo.App. E.D.2005). To deny a request for an evidentiary hearing, the record must conclusively show the movant is not entitled to relief. Schmedeke v. State, 136 S.W.3d 532, 533 (Mo.App. E.D.2004).

Escape Rule

The State urges us to dismiss Movant's first and third claims on appeal pursuant to the escape rule because Movant absconded from probation and failed to appear at a probation violation hearing. The escape rule is a judicially-created doctrine that operates to deny the right of appeal to a defendant who escapes justice. Nichols v. State, 131 S.W.3d 863, 865 (Mo. App. E.D.2004). Whether or not to use the escape rule to dismiss an appellant's claims of error rests within the sound discretion of the appellate court. Harvey v. State, 150 S.W.3d 128, 129 (Mo.App. E.D. 2004).

Although we do not condone Movant's actions in absconding from probation, the central issues of this case move us to exercise our discretion to deny application of the escape rule and consider Movant's appeal on the merits.

Discussion

I.

In his first two points, Movant argues that the motion court erred in overruling his motion without an evidentiary hearing because he alleged facts, not refuted by the record, that entitle him to relief. In his first point, Movant contends his plea counsel was ineffective in failing to advise him of the correct ranges of punishment for the crimes with which he had been charged before he entered his plea. Specifically, Movant alleges that plea counsel discussed with him the difference between a suspended imposition of sentence and a suspended execution of sentence, but did not inform him of the minimum sentence "or that concurrent sentences were a possibility." In his second point, Movant contends that his sentencing counsel was ineffective in that counsel told the sentencing court that Movant had "picked up new charges" in Colorado, in violation of attorney-client confidentiality.

Movant argues that we should remand because the motion court failed to address these claims in its findings of fact and conclusions of law in violation of Rule 24.035(j). In its findings of fact and conclusions of law, the motion court states that Movant raised "essentially one claim." The motion court restated the "one claim," as allegations "that he `was denied his right to due process . . . in that the Court failed to personally address Movant as to the ranges of punishment and assure that Movant understood them before accepting the guilty plea' . . . He then amplifies the claim by alleging his plea was involuntarily given because no one explained to him what the minimum sentence must be." The motion court addressed Movant's claim that the court failed to address the ranges of punishment, but made no mention of Movant's claims regarding ineffective assistance of counsel.

Rule 24.035(j) states in pertinent part: "The court shall issue findings of fact and conclusions of law on all issues presented, whether or not a hearing is held." Indeed, if we reviewed Movant's claims, we would have to "furnish the necessary findings and conclusions [and] engage impermissibly in de novo review." Mitchell v. State, 192 S.W.3d 507, 510 (Mo.App. E.D.2006). While we recognize that not every failure to enter a conclusion of law...