Gray v. State

• Decision Date: 30 August 2016
• Docket Number: WD 78896
• Citation: Gray v. State, 498 S.W.3d 522 (Mo. App. 2016)
• Parties: De Andrea Gray, Appellant, v. State of Missouri, Respondent.
• Court: Missouri Court of Appeals

498 S.W.3d 522

De Andrea Gray, Appellant,

v.State of Missouri, Respondent.

WD 78896

Missouri Court of Appeals, Western District.

OPINION FILED: August 30, 2016

De Andrea Gray, Appellant Pro Se.

Shaun Mackelprang, Jefferson City, MO, for respondent.

Before Division Two: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge

Cynthia L. Martin, Judge

De Andrea Gray(“Gray”) appeals from a judgment denying his motion to vacate and expunge prior convictions pursuant to Rule 29.07(d).¹Gray argues that he was convicted of crimes for which he did not plead guilty, and that he received ineffective assistance of counsel.Finding no error, we affirm.

Factual and Procedural History

The factual and procedural history relevant to this appeal is drawn primarily from prior orders and judgments which have addressed Gray's efforts to vacate convictions in Jackson County, Missouri of the Class B felony of attempted robbery in the first degree and of the Class A felony of assault in the first degree.All of Gray's efforts to vacate his convictions, including the motion giving rise to this appeal, were initiated several years after Gray completed service of the sentences imposed for his convictions.

Gray was charged in Jackson County, Missouri in October 1991 with the Class A felony of attempted robbery in the first degree and armed criminal action (“ACA”) in Case No. CR91-4773.The State later amended the robbery charge to the Class B felony of attempted robbery.In 1991, the authorized range of punishment for a Class B felony was five to fifteen years in prison.Section 558.011(RSMo 1991 )

Gray was charged in Jackson County, Missouri in January 1992 with the Class A felony of assault in the first degree and ACA in Case No. CR92-0032.In 1992, the authorized range of punishment for a Class A felony was ten to thirty years or life imprisonment.Section 558.011(RSMo 1992 ).

On October 7, 1992, Judge William Peters entered a written Guilty Plea/Judgment in Case No. CR91-4773 finding Gray guilty of the Class B felony of attempted robbery in the first degree pursuant to a guilty plea, and noting that the State had dismissed the ACA charge.The judgment imposed a sentence of seven years' imprisonment, a sentence within the authorized range of punishment.On the same date, Judge Peters also entered a written Guilty Plea/Judgment in Case No. CR92-0032 finding Gray guilty of the Class A felony of assault in the first degree pursuant to a guilty plea, and noting that the State had dismissed the ACA charge.The judgment imposed a sentence of seven years' imprisonment, a sentence that is not within, and is in fact less than, the authorized range of punishment.The sentence imposed in Case No. CR92-0032 was ordered to run concurrent with the sentence imposed in Case No. CR91-4773.Although both judgments were signed by Judge Peters on October 7, 1992, they recite that Gray was present in court and entered his guilty pleas on October 5, 1992.A written acknowledgement of guilty plea form signed by Gray, and dated October 5, 1992, was filed in Case No. CR92-0032.²The acknowledgment does not describe the terms of Gray's guilty plea, but advises Gray of his rights pursuant to Rule 24.035.Gray did not file a post-conviction motion pursuant to Rule 24.035 in either case.

In or around 2011, and thus long after Gray had completed the service of his concurrent seven-year sentences for his Missouri convictions, Gray was convicted of a federal crime for which he received an enhanced sentence as a career criminal.³The enhancement of Gray's federal sentence was a result of his Missouri convictions.Gray alleges that this was when he first realized that he had been convicted in Case No. CR91-4773andCase No. CR92-0032 of crimes for which he never pled guilty.

Gray claims instead that he agreed to enter an Alford plea to the Class C felony of attempted robbery in the second degree in Case No. CR91-4773, with a seven-year sentence, the execution of which was to be suspended while he served five years' probation.And Gray claims that he agreed to plead guilty in Case No. CR92-0032 to the reduced charge of a Class C felony of carrying a concealed weapon, for which he would receive a seven-year sentence.Gray claims that when he appeared in court on October 5, 1992, a visiting judge would not accept his guilty pleas, and that his guilty plea hearing was rescheduled to October 26, 1992.⁴Gray was instead almost immediately transferred to prison, and never reappeared before the trial judge.Gray explains that he assumed his presence was not required to finalize his guilty pleas, and that he never questioned his convictions because he was serving seven years, consistent with the plea agreement he believed he had reached.Gray alleges that he never pled guilty to the crimes of which he was actually convicted, and that he never participated in a guilty plea hearing where questions were asked of him by the court.

When Gray was sentenced years later in federal court, and allegedly learned that he had been convicted in Missouri of crimes for which he never pled guilty, Gray began efforts to vacate his Missouri convictions.On May 9, 2012, Gray filed an application for writ of coram nobis in Case No. CR91-4773andCase No. CR92-0032.The trial court denied the application on May 23, 2012, finding it had no authority to grant such relief.On November 15, 2012, Gray filed a motion for relief from judgment pursuant to Rule 74.06(d)⁵ in Case No. CR91-4773andCase No. CR92-0032.The trial court denied the motion on November 30, 2012, finding that Rule 74.06(d) is a rule of civil procedure that does not apply to judgments in criminal cases.

On January 31, 2013, Gray filed a motion pursuant to Rule 29.12(b) and (c) in Case No. CR91-4773andCase No. CR92-0032, alleging plain errors resulting in a manifest injustice, and a clerical mistake in his judgments of conviction.The trial court denied the motion on July 16, 2013, finding that Rule 24.035 represented the exclusive procedure by which Gray should have made claims that the judgments entered in his case violated the constitutions of the State of Missouri or of the United States.The trial court found that Rule 29.12(b)(involving plain error) does not create an independent basis for relief.The trial court found that Gray's request to correct“clerical errors” in his State court judgments was without merit because the errors he claims were not clerical in nature, and because Gray could not establish that the judgments entered were not the judgments intended.Finally, the trial court held:

Other than [Gray's] own self-serving statements that he did not plea guilty to the offenses contained in the judgments, there is no evidence that the Court intended to enter judgments reflecting that [Gray] pled guilty to offenses other than the offenses listed in the judgment[s] entered by the Court on October 7, 1992.

To the contrary, the record establishes that [Gray] did not plea guilty to the Class C felonies of Attempted Robbery in the Second Degree and Carrying a Concealed Weapon in the manner in which [Gray] claims in his motion.In both cases, the record does not contain amended informations amending the charges to which [Gray] claims to have pled guilty.In addition, the record is completely void of any evidence, suggestion or indication that Defendant pled guilty to offenses that are not reflected in the judgments.While the Court is unable to locate or produce the transcript of [Gray's] guilty plea on October 5, 1992, [Gray] bears the burden of establishing from the existing record that mistake or clerical error occurred, and he is unable to meet this burden.

Finally, [Gray's] claims are not credible as they are inconsistent with legal rules and laws that existed in 1992.First, [Gray] claims that he pled guilty to the Class C felony of Carrying a Concealed Weapon in CR 92-0032.However, in 1992 Carrying a Concealed Weapon was a Class D felony with a maximum range of punishment of five-years['] imprisonment.Second, [Gray] claims that the Court“consolidated” the two cases into one conviction.Yet, there is no legal basis for the Court to consolidate these two cases. ...Because [Gray's] claims are not credible and there is no support for his claims in the record, [Gray] cannot establish that the judgments were the result of a clerical error, and he is not entitled to relief pursuant to Rule 29.12(c).

(Citations omitted.)

Sometime in 2014, Gray filed a petition for writ of habeas corpus in the United States District Court for the Western District of Missouri, Western Division.Though the federal court concluded “that something seems amiss” with Gray's guilty pleas, it noted that the “problem is compounded by the fact that because so much time has passed, the state court has been unable to locate crucial records to sort out the inconsistencies alleged by [Gray].”The federal court denied the writ because even assuming the accuracy of Gray's account, its authority to afford habeas relief was limited by 28 U.S.C. section 2554(a) to addressing “custody pursuant to the judgment of a State court,” and Gray was not in custody pursuant to a state court judgment.⁶The federal court observed: “Whether the convictions and sentences entered against [Gray] in 1992 were or were not erroneous, the fact remains that petitioner completed serving those sentences long ago.”

On March 9, 2015, Gray filed a motion in Case No. CR91-4773andCase No. CR92-0032 to vacate and expunge his convictions as unconstitutional pursuant to Rule 29.07(d) and 28 U.S.C. section 1651(a) writ of error coram nobis .⁷On May 29, 2015, the trial court denied the motion “for the reasons cited in its Judgment and Orders entered on May 23, 2012, November 30, 2012, and July 16, 2013.”The trial court expressly found that all of the claims raised by Gray could have been raised in a timely filed Rule 24.035 motion.

On April 23, 2015, Gray filed another ...