Fogle v. State
| Decision Date | 22 January 2004 |
| Docket Number | No. 25705.,25705. |
| Citation | 124 S.W.3d 509 |
| Parties | George FOGLE, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent. |
| Court | Missouri Court of Appeals |
Ellen H. Flottman, Columbia, MO, for Appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Patrick T. Morgan, Assistant Attorney General, Jefferson City, MO, for Respondent.
George Fogle ("Movant") was charged by information with the class C felonies of stealing by deceit, in violation of § 570.030, RSMo 2000, and forgery, in violation of § 570.090, RSMo 2000. Pursuant to a plea agreement filed on October 9, 2001, Movant agreed to plead guilty to stealing by deceit in exchange for a recommendation of seven years' imprisonment on that count and a dismissal of the forgery count. The trial court accepted Movant's guilty plea and sentenced him to seven years' imprisonment, to run concurrent "with other sentences being served by [Movant]."
On December 21, 2001, Movant filed a pro se Rule 24.035 motion. Counsel was appointed and an amended motion filed on May 21, 2002. Among the allegations in the amended motion was that Movant received ineffective assistance of counsel and that his "guilty plea was rendered involuntarily, unknowing, and unintelligent because [M]ovant's attorneys misadvised him that a seven year sentence running concurrent with his existing sentences would not hurt him."
On May 20, 2003, the motion court entered an order granting the State's motion to dismiss without an evidentiary hearing. This appeal followed.1
With one point relied on, Movant contends that the motion court clearly erred in denying his Rule 24.035 motion without granting an evidentiary hearing on the claim that he received ineffective assistance of counsel rendering his guilty plea involuntary, unknowing, and unintelligent because his attorneys misadvised him that receiving a seven-year sentence that would run concurrent with his existing sentences would not hurt him. According to Movant, he was prejudiced because without the "misadvice," he would have chosen to proceed to trial rather than plead guilty.
Appellate review of a motion court's denial of post-conviction relief is limited to determining whether the facts and conclusions of the motion court are clearly erroneous. Rule 24.035(k); Hao v. State, 67 S.W.3d 661, 663 (Mo.App.2002). The findings and conclusions are clearly erroneous only if a review of the record leaves this Court with a definite and firm impression that a mistake has been made. Hao, 67 S.W.3d at 663.
To be entitled to an evidentiary hearing, the post-conviction motion must: (1) allege facts, rather than conclusions, warranting relief; (2) show that factual allegations contained in the motion are not refuted by the record; and (3) show that the allegations resulted in prejudice. Savage v. State, 114 S.W.3d 455, 457 (Mo.App.2003). If the files and the records conclusively show that Movant is not entitled to relief, then a hearing shall not be held. Id.; Rule 24.035(h).
To prevail on a claim of ineffective assistance of counsel, Movant must show that his counsel's performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney, and that Movant was prejudiced thereby. Savage, 114 S.W.3d at 457. To establish prejudice, Movant must show that a reasonable probability existed that, but for counsel's error, Movant would have elected to proceed to trial rather than enter a guilty plea. Beal v. State, 51 S.W.3d 109, 111 (Mo.App.2001).
Within the motion court's order granting the State's motion to dismiss without an evidentiary hearing, the court characterized Movant's claim as a failure of Movant's counsel to advise Movant of the 80% service requirement. The court indicated that Movant was allegedly assured that the seven-year sentence running concurrently with his existing sentences would not hurt Movant, and that Movant "was not informed that he would have to serve 80% of the new sentence and his conditional release date would be extended by two years." The motion court concluded that counsel was "only obligated to inform [Movant] of the direct consequences of a guilty plea and has no duty to inform [Movant] of collateral consequences of the plea, including the time within which [Movant] would be eligible for parole." (citations omitted).
The motion court was correct that a defendant must be informed of all direct consequences of a guilty plea. Reynolds v. State, 994 S.W.2d 944, 946 (Mo.banc 1999). The motion court also correctly stated that, although it is necessary to inform a defendant of all direct consequences of a guilty plea, trial counsel is not required to...
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