Franks v. State, 56686
| Decision Date | 09 January 1990 |
| Docket Number | No. 56686,56686 |
| Parties | William FRANKS, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Douglas W. Hartig, Asst. Public Defender, Clayton, for appellant.
William L. Webster, Atty. Gen., Ronald L. Jurgeson, Asst. Atty. Gen., Jefferson City, for respondent.
William Franks, movant, appeals the denial of his motion to vacate, set aside or correct his sentence, pursuant to Rule 24.035, on his plea of guilty without an evidentiary hearing. He plead guilty to assault in the second degree, § 565.060 (RSMo Cum.Supp.1984) and armed criminal action, § 571.015 (RSMo 1978) on November 4, 1988. Pursuant to a plea agreement, he was sentenced to concurrent terms of fifteen years imprisonment on each count.
Initially, movant filed a pro se motion to vacate, set aside or correct the sentence. Counsel was appointed and filed an amended motion and request for an evidentiary hearing. Subsequently, the motion court made its findings of fact, conclusions of law and entered its order granting in part and denying in part movant's motion. The motion court granted movant's motion in that it clarified that movant was not sentenced pursuant to § 558.019 (RSMo 1986) (hereinafter all further references shall be to (RSMo 1986) unless otherwise noted), which sets minimum prison terms for certain repeat offenders. Movant's request for an evidentiary hearing was denied as well as his remaining allegations.
Movant appeals contending that the motion court erred in denying his motion without an evidentiary hearing because his guilty plea was involuntary due to the ineffective assistance of his counsel. Movant alleges that he was told that he would not be subject to classification pursuant to § 558.019, that he would only receive one fifteen year sentence and that he was guaranteed to be paroled in five years.
On review, we are limited to a determination of whether the findings, conclusions and judgment of the motion court are clearly erroneous. Rule 24.035(j). The motion court's findings, conclusions and order are clearly erroneous only if a review of the entire record leaves a definite and firm impression that a mistake has been made. Byers v. State, 772 S.W.2d 802, 803 (Mo.App.1989). To be entitled to an evidentiary hearing on a Rule 24.035 motion, movant must plead facts, not conclusions, which if true would entitle him to relief, and such factual allegations are not refuted by the record in the case, and the matters complained of must have resulted in prejudice to movant's defense. Short v. State, 771 S.W.2d 859, 863 (Mo.App.1989).
To prevail on a claim of ineffective assistance of counsel, a movant must demonstrate that his trial counsel's performance was deficient in that it was unreasonable under prevailing professional norms and that movant was thereby prejudiced. Byers, 772 S.W.2d at 804. In guilty plea situations, the effectiveness of counsel is relevant only to the extent that it affects the voluntariness of the plea. Short, 771 S.W.2d at 864[4, 5]. Movant may attack only the voluntary and intelligent nature of the guilty plea by showing that the advice he received from counsel was not within the reasonable prevailing standards that a reasonably competent attorney would exercise under similar circumstances. Id. Moreover, absent a clear abuse of discretion, we will defer to the determination by the trial court that a defendant's plea was voluntary. Byers, 772 S.W.2d at 804. A movant will be entitled to an evidentiary hearing on the issue of the voluntariness of his plea where the record of the guilty plea proceeding does not conclusively show his plea was made voluntarily or knowingly. Reeder v. State, 712 S.W.2d 431, 433[6, 7] (Mo.App.1986).
The record of the guilty plea reveals that the sentencing judge extensively questioned movant to determine if he understood the nature of the offenses with which he was charged and the sentence that he would receive under the plea agreement. The court asked movant if he understood that he was...
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