Gillespie v. State, 56478
| Citation | 785 S.W.2d 725 |
| Decision Date | 06 February 1990 |
| Docket Number | No. 56478,56478 |
| Parties | Maurice V. GILLESPIE, a/k/a Jerry Driscoll Martin, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Michael D. Burton, David C. Hemingway, St. Louis, for movant-appellant.
William L. Webster, Atty. Gen., M. Melissa Manda, Asst. Atty. Gen., Jefferson City, for respondent.
This appeal is from the denial of a motion to vacate judgment and sentence pursuant to Rule 24.035. We affirm.
Movant, Maurice V. Gillespie, under the name of Jerry Driscoll Martin, pleaded guilty on June 24, 1988, the second day of trial, to two counts of robbery in the first degree, one count of burglary in the first degree and one count of armed criminal action. Sections 569.020, 569.160, 571.015, R.S.Mo.1986. On July 15, 1988, movant was sentenced to concurrent fifteen year terms for the counts of robbery and burglary and a consecutive three year term for the offense of armed criminal action--a total of 18 years. Movant pleaded guilty to breaking into a home with another man and robbing two elderly ladies with a gun.
On October 13, 1988, movant filed his pro se Rule 24.035 motion seeking to set aside his conviction and sentence. He alleged therein that his guilty plea was rendered involuntary due to ineffective assistance of trial counsel and specifically alleged that his guilty plea was induced by fraud, mistake, misapprehension, fear and the holding out of unfounded hopes of a lighter sentence, as assured by counsel. Counsel was appointed and an amended motion to vacate was filed. The amended motion further alleged that plea counsel told movant that he was unwilling to cross-examine the elderly victims of the offenses and had no intention to discredit their testimony, and that counsel failed to investigate the case. The motion requested an evidentiary hearing.
On February 16, 1989, the motion court denied the motion to vacate without an evidentiary hearing. The court made findings of fact and conclusions of law. The court ruled that the allegations were refuted by the plea record and that the movant's statements concerning his satisfaction with counsel occurred "well into the second day of trial."
On appeal, appellant contends that the motion court erred in denying an evidentiary hearing because the record does not refute his allegations that counsel "pressured" him into pleading guilty "by telling him that he would not try to discredit the elderly victims" nor does it refute the claims that "counsel misled him to believe he would receive a total of 15 years." Hence, he contends the court erred in denying him a hearing.
Rule 24.035, effective January 1, 1988, provides a procedure for relief to a person convicted of a felony who asserts or claims that the judgment of conviction imposed violates the law or the constitution of this state, or the United States, or that the court imposing the sentence was without jurisdiction to do so, or that the sentence imposed was in excess of the maximum sentence authorized by law. Rule 24.035 is the successor to Rule 27.26. The new Rule was enacted to change the timing and procedure under Rule 27.26 and not the scope or substance. See Day v. State, 770 S.W.2d692 (Mo. banc 1989); Short v. State, 771 S.W.2d 859, 863 (Mo.App.1989).
Review of a Rule 24.035 motion is a limited one. "Appellate review of the trial court's action on the motion filed under this Rule 24.035 shall be limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous." Rule 24.035(j); Mallett v. State, 769 S.W.2d 77, 79 (Mo. banc 1989). The motion court's findings, conclusions and order are clearly erroneous only if a review of the record leaves the appellate court with a definite and firm belief that a mistake has been made. Foster v. State, 748 S.W.2d 903, 905 (Mo.App.1988); Armour v. State, 741 S.W.2d 683, 688 (Mo.App.1987).
The legal principles relative to granting or denying an evidentiary hearing on a motion to vacate and the standards relating to alleged ineffectiveness of counsel are clear. Under Rule 24.035, no evidentiary hearing is required "if the motion and the files and record of the case conclusively show that the movant is entitled to no relief ..." Rule 24.035(g). In order to be entitled to an evidentiary hearing, the movant must (1) allege facts, not conclusions, which, if true, would warrant relief, (2) these facts must raise matters not refuted by the record and files in the case, and (3) the matters complained of must have resulted in prejudice to the movant. Thomas v. State, 736 S.W.2d 518, 519 (Mo.App.1987); Boggs v. State, 742 S.W.2d 591, 594 (Mo.App.1987); Haliburton v. State, 546 S.W.2d 771, 773 (Mo.App.1977).
In order to prevail upon a claim of ineffective assistance of counsel, movant has a heavy burden. It must be shown that (1) his attorney failed to exercise that customary skill and diligence that a reasonably competent attorney would perform under similar circumstances and (2) he was prejudiced. Mallett v. State, supra, 769 S.W.2d at 82; Roberts v. State, 775 S.W.2d 92, 94 (Mo. banc 1989); Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987); Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Counsel's conduct must so undermine the proper functioning of the adversarial process and counsel's deficiencies must prejudice him. The movant is required to make both showings. Sanders, supra, 738 S.W.2d at 857.
We deal here with a plea of guilty. A guilty plea represents a break in the chain of events which has preceded it in the criminal process. It is a confession in open court. Once a guilty plea is entered, it is the general principle that determination of adequacy of couns...
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