Ivy v. State, WD 59494.

• Decision Date: 28 May 2002
• Docket Number: No. WD 59494.,WD 59494.
• Citation: 81 S.W.3d 199
• Parties: Jason IVY, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 199

81 S.W.3d 199

Jason IVY, Appellant, v. STATE of Missouri, Respondent.

No. WD 59494.

Missouri Court of Appeals, Western District.

Submitted February 8, 2002.

Decided May 28, 2002.

Motion for Rehearing and/or Transfer to Supreme Court Denied July 2, 2002.

Application for Transfer Denied August 27, 2002.

Amy Marie Bartholow, State Public Defender, Columbia, for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Andrea Follett, Asst. Atty. Gen., Jefferson City, for Respondent.

Before PAUL M. SPINDEN, C.J., P.J., JAMES M. SMART, JR., and VICTOR C. HOWARD, JJ.

JAMES M. SMART, JR., Judge.

Jason Ivy appeals the denial, after an evidentiary hearing, of his motion to vacate judgment and sentence brought pursuant to Supreme Court Rule 24.035 in the Circuit Court of Boone County. The convictions sought to be vacated are for second degree felony murder, § 565.021, RSMo 1986, and armed criminal action, § 571.015, RSMo 1986.

Factual and Procedural Background

Jason Ivy shot and killed his stepsister with a handgun. He was fifteen years old at the time. He explained that he had pointed the gun at his stepsister and pulled the trigger as a practical joke, believing the gun to be empty. Ivy was ultimately charged as an adult with murder in the second degree and armed criminal action. The second degree murder charge was a charge of felony murder asserting that a death occurred in the course of the commission of the felony of unlawful use of a weapon. On April 10, 1989, Ivy entered guilty pleas on both charges and was sentenced to life imprisonment on the second degree murder charge and fifteen years on the armed criminal action charge.

Ultimately, Ivy filed a petition for federal habeas corpus relief in the United States District Court for the Western District of Missouri on October 26, 1990. Eight years later, United States District Court sustained Ivy's petition, finding that Ivy's plea was not knowingly and voluntarily entered and that Ivy's trial counsel had rendered constitutionally ineffective assistance. The District Court's decision was affirmed by the Eighth Circuit Court of Appeals in Ivy v. Caspari, 173 F.3d 1136 (8th Cir.1999). Ivy was allowed to withdraw his pleas of guilty.

On August 9, 1999, the State of Missouri filed a second amended felony information, again charging Ivy with first degree murder and armed criminal action. On November 17, 1999, Ivy entered pleas of guilty to a third amended felony information charging second degree murder (again a felony murder charge based on unlawful use of a weapon) and armed criminal action. Ivy was sentenced to twenty-five years in prison upon his guilty plea to felony murder and a concurrent forty-five years in prison for armed criminal action.

On February 14, 2000, Ivy timely filed a pro se motion to vacate, set aside or correct judgment or sentence. Appointed counsel timely filed an amended motion. Ivy included in his pro se motion a claim that his sentences placed him in double jeopardy because he could not be sentenced for both felony murder based on unlawful use of a weapon and for armed criminal action. This claim was not included in the amended motion. The amended motion alleged, in part, that Ivy's plea lacked a factual basis pursuant to Rule 24.02, in that it was never explained to Ivy that the felony underlying the second degree felony murder charge required the State to prove that Ivy knowingly intended to brandish a weapon in an "angry and threatening manner."

An evidentiary hearing was held on September 29, 2000. The motion court denied Ivy's motion on December 19, 2000, finding in part that Ivy understood that the charge of second degree murder was predicated on the act of unlawful use of a weapon and that he had discussed "that particular concept" with plea counsel. This appeal follows.

Lack of Adequate Factual Basis for Guilty Plea

We turn first to Ivy's second point on appeal. Ivy contends that the motion court clearly erred in denying his 24.035 motion because his guilty plea to felony murder was invalid in that no adequate factual basis was shown to support the plea. Although the plea court asked Ivy whether he understood that the intent for felony murder was supplied by the underlying felony of unlawful use of a weapon, the court, he argues, never established what intent was required for that felony under § 571.030.1(4), i.e., that he knowingly exhibited a weapon readily capable of lethal use in an angry or threatening manner, nor did the court establish that Ivy understood what intent was required or that Ivy possessed that intent.

Standard of Review

Appellate review of the denial of a motion for post-conviction relief is limited to a determination of whether the motion court's findings and conclusions are clearly erroneous. Rule 24.035(k); Antwine v State, 791 S.W.2d 403, 406 (Mo. banc 1990). A judgment will be found to be clearly erroneous if, after review of the entire record, the appellate court is left with the definite and firm belief that a mistake has been made. Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991).

Analysis

In Missouri, the plea court may not enter judgment on a plea of guilty until it makes a determination that there is a factual basis for the plea. Rule 24.02(e); State v. Hunter, 840 S.W.2d 850, 864 (Mo. banc 1992). A plea forms the factual basis for a guilty plea where it is voluntarily and understandingly made, as well as unequivocal as to the factual requisites necessary to establish every element of the offense. State v. Shafer, 969 S.W.2d 719, 734 (Mo. banc 1998). A factual basis is established where the information clearly charges the defendant with all elements of the crime, the nature of the charge is explained to the defendant, and the defendant admits guilt. Rios v. State, 848 S.W.2d 638, 640 (Mo. App.1993).

A factual basis to support a guilty plea "is established if the defendant understands the facts recited by the judge or the prosecutor." State v. Morton, 971 S.W.2d 335, 340 (Mo.App.1998). So long as the defendant understands the nature of the charges against him, trial courts are not required to explain every element of the crime. State v. Taylor, 929 S.W.2d 209, 217 (Mo. banc 1996); Franklin v. State, 989 S.W.2d 678, 679 (Mo.App.1999). However, a guilty plea must be voluntary in a constitutional sense, and a plea cannot be voluntary in the sense that it amounted to an intelligent admission that he committed the offense unless the defendant received "real notice of the true nature of the charge against him, the first and most universally recognized requirement of due process." Henderson v. Morgan, 426 U.S. 637, 644-45, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976) (quoting Smith v. O'Grady, 312 U.S. 329, 334, 61 S.Ct. 572, 85 L.Ed. 859 (1941)). "[I]intent is such a critical element of the offense of second-degree murder that notice of that element is required." Id. at 647, n. 18, 96 S.Ct. 2253. Ivy points out in his brief that his first plea was vacated in part in federal court because the plea court misinformed him that his intent was irrelevant in the context of felony murder. See Ivy v. Caspari, 173 F.3d 1136, 1142-43 (8th Cir.1999). The information to which Ivy originally pleaded guilty charged felony murder in the second degree as a result of the perpetration of the felony of unlawful use of a weapon. Under Missouri law, the State was not required to prove that Ivy intended to kill his stepsister, but it was required to prove that he intentionally used the weapon in a manner violative of the statute. See State v. Clark, 652 S.W.2d 123, 127 (Mo. banc 1983); State v. Rumble, 680 S.W.2d 939, 943 (Mo. banc 1984) (defendant must have had the "requisite intent to commit or participate in the underlying felony").

The United States Court of Appeals concluded that the sentencing court believed Ivy's intent was irrelevant with regard to the second degree felony murder charge and the court conveyed that belief to Ivy. Ivy, 173 F.3d at 1143. The court found the colloquy at the time of the plea insufficient to establish that Ivy was advised that intent was an element of the underlying offense and, therefore, the court found, his plea could not have been knowingly and voluntarily entered.¹ Id.

In this appeal, Ivy argues that, again, the third amended information did not clearly charge him with all the critical elements of the crime and that the nature of the charge was not fully explained to him. According to Ivy, the plea court in this case merely confirmed that Ivy knew that intent to commit the underlying felony was required. The plea court did not confirm, he says, that Ivy specifically knew that a "knowing" intent was required — as opposed to a reckless or negligent intent — and failed to confirm the other critical element of unlawful use of a weapon, i.e., that Ivy knowingly exhibited the weapon "in an angry or threatening manner."

Ivy makes the point that this time the plea court used the general word "intent" in the context of the underlying felony, but failed to explain what intent was required or what act Ivy allegedly committed. The underlying felony, unlawful use of a weapon, makes it unlawful to "knowingly ... exhibit ... any weapon readily capable of lethal use in an angry or threatening manner." § 571.030.1(4) RSMo 1986 (emphasis added). Following is the colloquy between the court and the defendant from this most recent plea hearing, which Ivy maintains failed to establish the requisite intent element of the underlying felony — unlawful use of a weapon:

[Q.]: Now, in connection with felony murder in the second degree, do you understand that one of the elements of that particular crime is that the homicide occurred as a result of the commission of another felony? Do you understand that?

[A.]; I understand Susan died because [sic] the felony.

[Q.]: Pardon?

[A.]: I understand Susan died because [sic] the other felony.

[Q.]: Well, I'm going to ask my question again. Do you...