Etenburn v. State
| Decision Date | 17 May 2011 |
| Docket Number | No. SD 30503.,SD 30503. |
| Citation | 341 S.W.3d 737 |
| Parties | Charles S. ETENBURN, Movant–Appellant,v.STATE of Missouri, Respondent–Respondent. |
| Court | Missouri Court of Appeals |
Charles S. ETENBURN, Movant–Appellant,
v.
STATE of Missouri, Respondent–Respondent.
No. SD 30503.
Missouri Court of Appeals, Southern District, Division One.
May 17, 2011.
[341 S.W.3d 738]
Craig A. Johnston, Columbia, MO, for Movant–Appellant.Chris Koster, Attorney General, and Richard A. Starnes, Assistant Attorney General, Jefferson City, MO, for Respondent.GARY W. LYNCH, Judge.
Charles S. Etenburn (“Movant”) appeals the motion court's denial of his Rule 24.035 motion for post-conviction relief.1 He claims the motion court clearly erred in concluding that the plea court had jurisdictional authority to amend the written judgments in his three criminal cases to omit Movant's placement in the Department of
[341 S.W.3d 739]
Corrections (“DOC”) shock incarceration program in accordance with section 559.115.3 and in concluding that, even if the amendments were improper, Movant nevertheless did not suffer any resulting prejudice.2 We determine that the motion court's latter finding—Movant was not prejudiced by such amendments—is not clearly erroneous in that the amendments' effect comported with the oral pronouncements of sentences by the plea court. We affirm the motion court's denial of Movant's motion but remand for the motion court to correct the original written judgments to reflect the plea court's oral pronouncement of sentence in each case.
In accordance with a purported comprehensive plea agreement in three different criminal cases, Movant pleaded guilty to one count of stealing (Phelps County Circuit Court Case No. 25R03062107F–01), in violation of section 570.030, RSMo Cum.Supp.2006; four counts of forgery (Phelps County Circuit Court Case No. 25R03061216F–01), in violation of section 570.090, RSMo Cum.Supp.2003; and one count of possession of a controlled substance (Phelps County Circuit Court Case No. 25R03061030F–01), in violation of section 195.202, RSMo 2000. The attempted consummation of this plea agreement occurred in all three cases simultaneously during one proceeding before the plea court on April 29, 2008. At the plea court's suggestion and with Movant's agreement, general issues and questions related to all cases and counts would be addressed collectively, but issues and questions specifically related to a particular case or charge would be addressed separately.
After asking Movant a series of general questions, the plea court indicated to Movant that she would next address each individual case, with the first being that for possession of a controlled substance. The plea court heard testimony from Movant as to the range of punishment and the factual basis for this charge. After finding that a factual basis existed for the charge, the plea court asked the prosecutor to state the plea agreement for the record. In response, the prosecutor stated:
... Upon a successful plea of guilty, the State has promised to recommend in this case that the [Movant] will be sentenced to the Missouri Department of Corrections for a period of ten years under 559.115 general shock, but that that sentence will be run consecutively with the other two cases that we are going to hear in a few moments.
In addition, Your Honor, upon-if the [Movant] is discharged within the first 120 days, that the [Movant] will be tested for entry into the Phelps County drug court program. And if he is deemed to be a candidate for drug court, that that would be a condition of any probation that he would receive after the first 120 days.
Upon inquiry by the plea court, both Movant and his plea counsel acknowledged that this was their understanding of the plea agreement. In response to his plea counsel's questions, Movant acknowledged that he understood that he would “be going to the Department of Corrections for 120–day general shock” and that “at the end of that 120 days, it's up to the Judge whether or not [he was] let out of that 120–day shock.”
[341 S.W.3d 740]
The plea court next addressed the stealing charge by inquiring of Movant about the applicable range of punishment and the factual basis for his plea on that charge. In response to questions from plea counsel, Movant indicated that he understood “that the recommendation from the prosecutor is essentially the same as the first case that we did, that you will still have to do drug court upon your release from the 120[-day shock]” and “then it's up to the Judge that you be released at the end of the 120[-day shock][.]” When asked by the plea court, the prosecutor stated, “And the recommendation, again, is ten years in the DOC under 559.115 general shock[,]” with the same drug court provision should Movant be released on probation after 120 days. Upon inquiry by the plea court, both Movant and his plea counsel acknowledged that this was their understanding of the plea agreement.
Next, the plea court addressed the third case that involved the four counts of forgery. The plea court inquired of Movant as to the range of punishment and the factual basis for each count. In response to plea counsel's questions, Movant understood that he would be “sentenced under 559.115 for a 120 general shock in the Missouri Department of Corrections” and that “it's up to the Judge whether or not you are let out at the end of that 120 days.”
Returning to the stealing case, the plea court made a finding that a factual basis for the plea of guilty existed and adjudged Movant guilty of that offense. In response to the plea court's inquiry, Movant waived a sentencing assessment report. The plea court granted allocution and sentenced Movant to ten years in the DOC and to “general shock incarceration” in accordance with section 559.115.
After pronouncing the sentence in the stealing case, the following colloquy occurred:
THE COURT:.... Now, is there anything that I have overlooked in this sentencing?
[Prosecutor]: Yes, Your Honor, there is one thing and that is that they are consecutive. You haven't addressed that yet.
THE COURT: Well, I haven't gotten to it—the second one yet.
[Prosecutor]: I understand.
THE COURT: Okay. I will—I will get that, but I'm not there yet. I can't make it consecutive when I haven't sentenced him on anything else yet.
[Prosecutor]: I understand.
THE COURT: But thank you. I appreciate you pointing all of these things out....
[Movant's Plea Counsel]: Your Honor, there is—if I may, there's one matter. We spoke in Chambers about [Movant] being allowed some time before he reports for the 120–day shock incarceration so that he can talk with an attorney out of another county and—and try to get some affairs in order.
THE COURT: All right. And I'll consider that. Let me get-
[Plea Counsel]: Okay.
THE COURT:—to the bottom of this first, okay?
I'm trying to work one way to another.
All right. Sir, I will—I'm—I will be telling you about Rule 24.035. I'm gonna do that at the end of all these cases.
[Movant]: Okay.
THE COURT: Okay. So at this point, I'm simply—and I'll be inquiring as to assistance of counsel at the end of all the cases. So I'm gonna move on into the sentencing on that, instead of inquiring
[341 S.W.3d 741]
on each individual case, okay? All right. Any questions about that, sir?
[Movant]: No, Your Honor.
The plea court then returned to the possession case, found that a factual basis existed for Movant's plea, and adjudged Movant guilty of that offense. After Movant waived a sentencing assessment report, the plea court granted allocution and sentenced Movant “pursuant to the requested plea agreement in this matter[ ]” to serve ten years in the DOC and ordered that he be committed under section 559.115 for “general shock incarceration.” This sentence was ordered served consecutive to the stealing sentence.
The plea court then found that a factual basis existed for Movant's plea on each of the four counts in the forgery case and found Movant guilty on each count. After Movant waived a sentencing assessment report, the plea court granted allocution and sentenced Movant “pursuant to [his] plea agreement [ ]” to ten years in the DOC on each of the four counts, with “general shock incarceration” in accordance with section 559.115. The sentences on each of these four counts were ordered served concurrent with each other and consecutive to the stealing and possession sentences.
After announcing, “Now, I think on the sentencing, that I am now complete [,]” the plea court turned to Movant's request for a furlough before reporting to the county jail for transport to DOC. The following colloquy then occurred:
THE COURT:.... Now, there has been a request, and your attorney referred to it at the beginning, that you be allowed some time. Apparently you have other cases, sir?
[Movant]: Yeah, I have one.
THE COURT: Now, sir, what guarantee do I have that you will report back to this Court to go down to the penitentiary?
[Movant]: I can tell you, Your Honor, that I will appear. I have 30 years of my life hanging over my head right now.
THE COURT: All right. You understand that if you don't show up—
[Movant]: I sure do.
THE COURT:—that you won't get second chances, and you won't be going down for 120, but it'll be—
[Movant]: 30 years.
THE COURT:—30 years?
[Movant]: I fully understand that.
THE COURT: All right. Then, sir, what I'm going to do, in order to give you a little bit of time—and I very seldom do this, sir, so please don't prove me wrong, because it'll mean that nobody after you will get this opportunity.
[Movant]: You're the one who's got to call me back on the 120.
THE COURT: Well, that and—and many other things, okay?
[Movant]: Exactly.
THE COURT: All right. Then, sir, what I'm going to do is I'm going to give you until May the 8th.
[Movant]: Okay.
THE COURT: And you are—that's a Thursday. Not this Thursday. Thursday a week from now.
[Movant]: Yes, ma'am.
THE COURT: And you are to report back to the Phelps County Sheriff's Department ... at 5 p.m. on May the 8th.
[Movant]: I'll be here.
THE COURT: Now, if for some...
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