Greathouse v. State, No. WD

• Decision Date: 17 August 1993
• Docket Number: No. WD
• Parties: Alfred GREATHOUSE, Appellant, v. STATE of Missouri, Respondent. 47150.
• Court: Missouri Court of Appeals

Page 247

859 S.W.2d 247

Alfred GREATHOUSE, Appellant, v. STATE of Missouri, Respondent.

No. WD 47150.

Missouri Court of Appeals,

Western District.

Aug. 17, 1993.

Lorry I. Kohrs, Asst. Appellate Defender, Kansas City, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Hugh L. Marshall, Asst. Atty. Gen., Jefferson City, for respondent.

Before BERREY, P.J., and BRECKENRIDGE and HANNA, JJ.

HANNA, Judge.

Alfred Greathouse plead guilty to five counts of sodomy and was sentenced to concurrent terms of imprisonment totaling ten years. He filed a timely motion for post-conviction relief under Rule 24.035. Appointed counsel amended the pro se motion incorporating the pro se allegations. The motion court denied relief without an evidentiary hearing. Greathouse now appeals.

The criminal charges against Greathouse stemmed from acts of sodomy on two girls under the age of fourteen. At his guilty plea hearing, Greathouse admitted his complicity and entered a plea of guilty to the five counts of sodomy. The terms of the plea agreement provided for a ten year lid on punishment for each of five counts of sodomy, with the sentences to be run concurrently to each other. The state dismissed a sixth count of sexual abuse.

In his sole point on appeal, Greathouse claims that the motion court clearly erred in denying him an evidentiary hearing on an allegation of ineffective assistance of counsel. He claims "it was clear from the record of the case the [his] counsel failed to fully and properly explain the consequences of pleading guilty to the court and counsel misled [him] as to the possible range of punishment." Specifically, he contends in his argument to this court that his attorney informed him that the maximum sentence he would receive would only be seven years. He asserts entitlement to an evidentiary hearing because he plead sufficient facts, not refuted by the record, that indicated both ineffective representation and prejudice.

To be entitled to post-conviction relief on claims of ineffective assistance of counsel, a Rule 24.035 movant must plead and prove that counsels deficient performance tainted the voluntariness of the guilty plea. Whaley v. State, 833 S.W.2d 441, 444 (Mo.App.1992). Under Rule 24.035(g) no evidentiary hearing is required if the motion, files, and record conclusively show no entitlement to post-conviction relief. To warrant an evidentiary hearing, a movant must plead facts, not conclusions which, if true, would entitle him to relief. Jones v. State, 829 S.W.2d 47, 48 (Mo.App.1992). These facts cannot be refuted by the record and must demonstrate prejudice to his case. Id. To prevail on appeal, the movant bears the burden of showing the motion courts findings to be clearly erroneous and must provide a complete record. Lestourgeon v. State, 837 S.W.2d 588, 590 (Mo.App.1992).

In its findings and conclusions, the motion court determined that the movant's allegation failed to state how counsels actions affected the guilty plea, and that the allegation was refuted by the record. Rule 24.035(j) limits appellate review to a determination of whether the motion courts findings and conclusions are clearly erroneous. The motion courts findings are presumed correct. Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991).

Lacking any showing of prejudice, the movant's allegation of ineffective representation makes no reference as to how counsels actions influenced the voluntariness of the guilty plea. That deficiency alone justifies denial of an evidentiary hearing and affirmance on appeal.

The movant now argues that "[t]he factual allegations raised in Appellants amended motion are not refuted in the record of this case." Of course, the "record" in a Rule 24.035 appeal is primarily the guilty plea transcript, which appellants counsel failed to provide this court as required by Rule 81.12(a). When appealing the denial of an evidentiary hearing in a post-conviction proceeding, the appellant has the burden of providing a transcript containing the entire record necessary to the determination of all questions on appeal. Speakman v. State, 602 S.W.2d 471, 473 (Mo.App.1980). Without the necessary record, this court has no basis to determine whether the allegations are refuted by the record, or whether the motion courts determination is clearly erroneous. Putney v. State, 785 S.W.2d 562, 563 n. 1 (Mo.App.1990); Speakman, 602 S.W.2d at 473. The guilty plea transcript is an essential part of a Rule 24.035 appeal.

Although it is not the respondents responsibility, the state has produced a copy of the transcript in order for us to properly review the matter. The guilty plea transcript reveals that the court requested counsel to state on the record the terms of the plea agreement. The assistant prosecuting attorney stated:

Mr. McKenzie: Judge, in this case Mr. Greathouse is charged in a six-count information, and the State in exchange for a plea of guilty to the six-count information would tell the Court that the offer is that the defendant would plead guilty, then he would be later sentenced by the Court; that a lid has been placed on the possible sentence that Mr. Greathouse would be under, and that lid would be ten years; that in no way could the Court impose a sentence of over...