Hackman v. State

• Decision Date: 28 June 2016
• Docket Number: No. ED 103334,ED 103334
• Parties: Joshua Hackman, Appellant, v. State of Missouri, Respondent.
• Court: Missouri Court of Appeals

492 S.W.3d 669

Joshua Hackman, Appellant,
v.
State of Missouri, Respondent.

No. ED 103334

Missouri Court of Appeals, Eastern District, DIVISION THREE .

Filed: June 28, 2016

Gwenda Renee' Robinson, 1010 Market Street, Suite 1100, St. Louis, Missouri 63101, for Appellant.

Chris Koster, Colette E. Neuner, P.O. Box 899, Jefferson City, Missouri 65102, for Respondent.

OPINION

James M. Dowd, Judge

Pursuant to an agreement with the State, Joshua Hackman entered an Alford plea¹ to first-degree robbery arising out of an incident in which Hackman acted as a lookout while his accomplices stole money and alcohol from a liquor store while displaying and threatening the use of what appeared to be a deadly weapon in St. Charles County. Hackman was sentenced to ten years' imprisonment but his sentence was suspended and he was placed on five years' probation. While on probation Hackman was arrested and charged with drugs and weapons violations in the City of St. Louis, and the State moved to revoke Hackman's probation. Following an evidentiary hearing, the trial court revoked Hackman's probation and ordered execution of the previously imposed ten-year sentence.

Hackman filed a Rule 24.035² motion for post-conviction relief alleging that his trial counsel was ineffective for failing to advise him prior to his plea that if his probation was revoked he might not receive credit towards his sentence for the time he spent on probation. The motion court denied the motion without an evidentiary hearing, finding that since granting credit for time served on probation is discretionary with the trial court, it is a collateral consequence of a guilty plea and plea counsel was not required to advise Hackman on the issue. Because we do not find the motion court's findings and conclusions to be clearly erroneous, we affirm.

492 S.W.3d 672

Law

Appellate review of the denial of a Rule 24.035 motion is limited to a determination of whether the motion court's findings, conclusions, and judgment are clearly erroneous. Taylor v. State, 456 S.W.3d 528, 533 (Mo.App.E.D.2015) (citing Wool d ridge v. State, 239 S.W.3d 151, 153–54 (Mo.App.E.D.2007) ). Findings and conclusions are clearly erroneous if, after a review of the entire record, we are left with the definite and firm impression that a mistake has been made. Taylor, 456 S.W.3d at 533. We presume that the motion court's findings are correct. Id. After a guilty plea, our review is limited to a determination of whether the movant's plea was knowing and voluntary. Id. (citing Loudermilk v. State, 973 S.W.2d 551, 553 (Mo.App.E.D.1998) ). Moreover, an Alford plea is treated the same as a guilty plea. O'Neal v. State, 236 S.W.3d 91, 95 (Mo.App.E.D.2007) (citing Nguyen v. State, 184 S.W.3d 149, 152 (Mo.App.W.D.2006) ).

An evidentiary hearing is not required on every Rule 24.035 motion. See Rule 24.035(h). To be entitled to an evidentiary hearing, a 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. Barnett v. State, 103 S.W.3d 765, 769 (Mo.banc 2003) (citing State v. Brooks, 960 S.W.2d 479, 497 (Mo.banc 1997) ). Where a movant alleges ineffective assistance of counsel following a guilty plea and an examination of the guilty plea proceedings directly refute that movant's plea was involuntary, movant is not entitled to an evidentiary hearing. Taylor, 456 S.W.3d at 533.

The two-pronged Strickland test is applied in cases where a movant claims post-conviction relief based upon ineffective assistance of trial counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ; Zink v. State, 278 S.W.3d 170, 175–76 (Mo.banc 2009). The movant must prove the following two elements by a preponderance of the evidence: (1) that counsel's performance did not conform to the degree of skill and diligence of a reasonably competent attorney; and (2) that as a result thereof, the movant was prejudiced. Zink, 278 S.W.3d at 175. The movant must overcome a strong presumption that counsel's performance was reasonable...