Henson v. State, SD 34496

• Decision Date: 30 March 2017
• Docket Number: No. SD 34496,SD 34496
• Citation: 518 S.W.3d 828
• Parties: Jack M. HENSON, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

518 S.W.3d 828

Jack M. HENSON, Movant-Appellant,

v.STATE of Missouri, Respondent-Respondent.

No. SD 34496

Missouri Court of Appeals, Southern District, Division One .

Filed: March 30, 2017

Application for Transfer to Supreme Court Denied April 21, 2017

Application for Transfer Denied June 27, 2017

Attorney for Appellant: Samuel Henderson of St. Louis, MO.

Attorney for Respondent: Chris Koster, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., of Jefferson City, MO.

JEFFREY W. BATES, P.J.—OPINION AUTHOR

Jack Henson (Henson) filed his Rule 24.035 pro se motion (the pro se motion) in the Circuit Court of Pulaski County seeking post-conviction relief from his criminal convictions in Case No. 10PU-CR00306-01 (the 2010 Pulaski County case).¹ Henson's retained counsel filed an amended motion (the amended motion) presenting four claims of alleged ineffective assistance of plea counsel arising from Henson's guilty pleas in the 2010 Pulaski County case. The amended motion also included three claims of alleged ineffective assistance of plea counsel arising from Henson's guilty pleas in Case No. 13PH-CR00136-01 (the 2013 Phelps County case).

The motion court dismissed as untimely all claims involving Henson's convictions in the 2010 Pulaski County case because the motion court determined that the pro se motion was not filed within 180 days of Henson's delivery to the Department of Corrections (DOC). The motion court also denied relief on all claims involving Henson's conviction in the 2013 Phelps County case because those sentences were not imposed in Pulaski County. Henson appealed and presents six points for review. Finding no merit in any of them, we affirm the motion court's order.

Standard of Review

Appellate review of an order denying a motion for post-conviction relief is limited to a determination of whether the court's findings of fact and conclusions of law are clearly erroneous. Rule 24.035(k); Soto v. State , 226 S.W.3d 164, 166 (Mo. banc 2007). The clearly erroneous standard is satisfied only if, after a review of the entire record, this Court is left with a definite and firm impression that a mistake was made. Soto , 226 S.W.3d at 166.

Factual Background

Before setting out the relevant facts, a brief review of the mechanics of criminal sentencing is helpful:

A sentencing court has the authority to suspend both the execution of a sentence as well as the imposition of a sentence. See sections 557.011.2(3) and 557.011.4(3), RSMo 2000. A suspended execution of sentence suspends the defendant's prison time and the defendant is put on probation and has a criminal conviction on his record even if he successfully completes his probation. Edwards v. State, 215 S.W.3d 292, 295 (Mo. App. 2007). A suspended imposition of sentence, however, defers the sentencing as well as the entry of a conviction on defendant's record. Id. When an offender on a suspended execution of sentence violates his probation, the court may "execute" the suspended sentence and send him to prison for the term specified at the original sentencing. Id. When an offender is on probation with a suspended imposition of sentence, the court may revoke his probation and impose any sentence within the limit set by law for the offense. Id. An offender on a suspended imposition of sentence who successfully completes probation does not have a criminal conviction on his record, whereas an offender with a suspended execution of sentence has a criminal record for that conviction regardless of whether he successfully completes probation. See Id.

Hoskins v. State , 329 S.W.3d 695, 698 n.3 (Mo. banc 2010) (emphasis in original). The relevant events relating to Henson's convictions and DOC deliveries are set out below in chronological order.

October 26, 2010 :

Henson entered guilty pleas to three charges in Case No. 10PU-CR00306-01, the 2010 Pulaski County case. The trial court suspended imposition of all sentences and ordered Henson to complete five years of probation.

November 1, 2010 :

Henson entered a guilty plea in 10PH-CR01131, a Phelps County case. The trial court suspended imposition of that sentence and ordered Henson to complete five years of probation.

April 26, 2011 :

The trial court found Henson had violated his probation in the 2010 Pulaski County case. The trial court entered sentences of 7 years, 7 years, and 15 years for the three charges in that case (with the 7-year sentences concurrent to each other, but consecutive to the 15-year sentence, for a total sentence of 22 years). The court suspended execution of all sentences and ordered Henson to complete drug court.

September 14, 2011 :

Henson entered guilty pleas in three new cases, with each case including charges for multiple felonies: 11PH-CR01149—Sentences of 10 years and 7 years entered (concurrent to each other, but consecutive to all other sentences); 11PH-CR01532—Two sentences of 10 years entered (concurrent to each other, but consecutive to all other sentences); 11PH-CR01533—Three sentences of 10 years entered (concurrent to each other, but consecutive to all other sentences).

The trial court revoked Henson's probation in the 2010 Pulaski County case and 10PH-CR01131. In the 2010 Pulaski County case, the trial court executed the 22-year sentence, stating "[t]hat's to be served." The trial court also executed a 4-year sentence in 10PH-CR01131 and ordered that it run consecutive to Henson's 22-year sentence. The trial court clarified that it was sentencing Henson "under 217.362 of the revised statutes of Missouri, the long-term drug treatment program." It further stated: (1) Henson was not guaranteed probation; (2) he was going to DOC for 56 years (the aggregate of all consecutive sentences entered up to that point); but (3) he had a chance to be withdrawn from DOC after one or two years if he successfully completed the program. The court concluded, "You are to be delivered to [DOC] for a combined total of 56 years."

September 22, 2011 :

Henson was delivered to DOC.

November 19, 2012 :

Henson successfully completed long-term drug treatment at DOC and was ordered to complete five years of probation.

August 12, 2013 :

Henson entered three guilty pleas in the 2013 Phelps County case, and the trial court sentenced him to 7 years for each charge (concurrent with each other and concurrent with all other sentences). The trial court revoked Henson's probation for all prior convictions and executed a sentence of 56 years.

September 6, 2013 :

Henson was delivered again to DOC (his first delivery for the 2013 Phelps County case, and his second delivery for all cases prior to the 2013 Phelps County case).

February 5, 2014 :

Henson filed the pro se motion in Pulaski County.

November 3, 2014 :

Henson's retained counsel filed the amended motion in Pulaski County.

Additional facts necessary to the disposition of the case are included below as we address Henson's six points.

Discussion and Decision

Point 1

Henson's first point challenges the motion court's ruling that the pro se motion was untimely.² Rule 24.035 sets forth valid and mandatory time limits for the filing of a pro se post-conviction motion. Dorris v. State , 360 S.W.3d 260, 268 (Mo. banc 2012). "A person convicted of a felony on a plea of guilty and delivered to the custody of the department of corrections ... may seek relief in the sentencing court pursuant to the provisions of this Rule 24.035." Rule 24.035(a). "If no appeal of such judgment was taken, the motion shall be filed within 180 days of the date the person is delivered to the custody of the department of corrections." Rule 24.035(b).

Based on the timeline of relevant events set out above, Henson's pro se motion challenging his convictions in the 2010 Pulaski County case was not timely filed. Henson did not appeal that case, and he was first delivered to DOC to serve those sentences in September 2011 pursuant to the long-term drug treatment program. See § 217.362.³ "The law is well-settled that the time limitation for filing a motion for post-conviction relief begins to run upon a movant's initial delivery into the custody of [DOC]." State v. Gibbs , 418 S.W.3d 522, 524 (Mo. App. 2013) (emphasis in original); see also Bond v. State , 326 S.W.3d 828, 831 (Mo. App. 2010). This is the case even when the circuit court: (1) remands the movant to DOC so that he or she may enter a § 217.362 long-term drug treatment program; and (2) grants the movant probation when the program is completed. Hart v. State , 367 S.W.3d 171, 174 (Mo. App. 2012). Although Henson successfully completed his long-term drug treatment program and was released from DOC on probation in November 2012, his initial delivery to DOC in September 2011 triggered the 180-day time limit in which he had to file a pro se Rule 24.035 motion. Therefore, Henson's pro se motion was due to be filed in March 2012, but it was not filed until February 2014, nearly two years later.

Henson argues that, although he was sentenced by the circuit court to serve 56 years in prison, those sentences were not actually being executed when he was delivered to DOC. To support that argument, Henson relies upon several DOC and Phelps County documents that purport to show he was serving only a 34-year sentence in DOC (i.e. , he was not actually serving the 22-year sentence in the 2010 Pulaski County case, so he had not been delivered to DOC for that sentence). Even if we accept Henson's argument as true—that he was not serving the sentence for the 2010 Pulaski County case once he had been delivered to DOC—his argument still fails.

Henson was sentenced to the § 217.362 long-term drug treatment program in DOC for the 2010 Pulaski County case in a multi-count judgment that also imposed sentences in four other cases. In Swallow v. State , 398 S.W.3d 1 (Mo. banc 2013), our Supreme Court addressed the timeliness of a pro se Rule 24.035 motion involving a judgment in which concurrent sentences for two counts had been imposed, but the execution of one of the sentences had been suspended. Swallow ...