Johnson v. State, 72576
| Decision Date | 10 February 1998 |
| Docket Number | No. 72576,72576 |
| Citation | 962 S.W.2d 892 |
| Parties | Randall JOHNSON, Plaintiff-Appellant, v. STATE of Missouri, Defendant-Respondent. |
| Court | Missouri Court of Appeals |
Nancy L. Vincent, Asst. Public Defenders, St. Louis, for plaintiff-appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Gregory L. Barnes, Asst. Atty. Gen., Jefferson City, for defendant-respondent.
Randall Johnson appeals from the denial, without an evidentiary hearing, of his Rule 24.035 motion for post-conviction relief. Johnson contends the motion court clearly erred in: (1) finding that his plea of guilty was valid because the court failed to personally address him in open court as is required by Rule 24.02(b); (2) imposing a sentence on Johnson in excess of that allowed by law; and (3) finding plea counsel was not ineffective. We affirm in part and reverse and remand in part.
Johnson was charged by information with one count of forcible rape, Section 566.030 RSMo 1994 1; two counts of forcible sodomy, Section 566.060; one count of felonious restraint, Section 565.120; one count of tampering, first degree, Section 569.080.1(2); and one count of stealing, Section 570.030. Johnson entered pleas of guilty to the count of forcible rape, both counts of forcible sodomy, and the count of felonious restraint. Pursuant to a plea agreement, the counts of tampering, first degree, and stealing were dismissed. Johnson filed pro se motions for post-conviction relief pursuant to Rule 24.035. A timely, amended motion was later filed by Johnson's counsel. The circuit court denied Johnson's motion without an evidentiary hearing. This appeal followed.
Our review of the court's denial of Johnson's motion for post-conviction relief is limited to determining whether the findings, conclusions and judgment of the motion court are clearly erroneous. Jackson v. State, 948 S.W.2d 271 (Mo.App. E.D.1997) (citing Rule 24.035). We will find such findings and conclusions clearly erroneous only if a review of the entire record leaves this court with a definite and firm impression that a mistake has been made. Id. A movant is entitled to an evidentiary hearing by alleging facts, not conclusions, which, if true, entitle him to relief. Tolen v. State, 934 S.W.2d 639, 641 (Mo.App. E.D.1996). These factual allegations must not be refuted by the record; and the matters complained of must have resulted in prejudice to the movant. Id.
We will address Johnson's second point on appeal first. Johnson asserts the trial court clearly erred in denying his motion for post-conviction relief without an evidentiary hearing because the trial court imposed a sentence on him in excess of that allowed by law by sentencing him as a prior offender. Johnson complains that State's Exhibit 2, a certified and authenticated copy of a conviction entered against Johnson for the unauthorized use of a motor vehicle in the 97 th Judicial District Court of the State of Texas in 1977, fails to demonstrate that his plea of guilty was counseled.
"A properly certified copy of a judgment of conviction is admissible evidence of that conviction." State v. Wilson, 684 S.W.2d 544, 546 (Mo.App. S.D.1984) (citing State v. Worsham, 416 S.W.2d 940 (Mo.1967)). Exhibit 2 states: "the Defendant, Randall Lee Johnson, having been duly arraigned, appeared in person, in open court, his counsel also being present, ... entered his plea of guilty." Therefore, the record before us directly refutes Johnson's claim that his plea was uncounseled. See State v. Givens, 851 S.W.2d 754, 760 (Mo.App. E.D.1993). Without evidence in the record to contradict this, the use of his prior conviction to enhance Johnson's sentence was sufficiently supported. We also note Johnson failed to object when the State offered Exhibit 2 as evidence of his prior conviction. Point denied.
In his first point on appeal, Johnson asserts the motion court clearly erred in denying his motion for post-conviction relief without an evidentiary hearing because the court failed to personally address him in open court pursuant to Rule 24.02. In denying Johnson's motion without an evidentiary hearing, the circuit court concluded: "The Court was satisfied that the movant made a knowing, intelligent and voluntary waiver any [sic] of his rights to be personally addressed by the court." We disagree.
Before accepting a defendant's guilty plea, Rule 24.02(b) 2 requires the court to " 'address the defendant personally in open court, and inform him of, and determine that he understands,' the specific information enumerated in the rule." State v. Taylor, 929 S.W.2d 209, 216 (Mo.1996) cert. denied --- U.S. ----, 117 S.Ct. 1088, 137 L.Ed.2d 222 (1997). Rule 24.02(c) 3 has a similar requirement to assure the court the plea is voluntary. Id.
Rule 24.02 does not mandate a strict procedure or ritual that a court must follow before accepting a defendant's guilty plea. Steinle v. State, 861 S.W.2d 141, 143 (Mo.App. W.D.1993). However, "[b]ecause the defendant is waiving well established rights and subjecting himself to penalty, the record must reflect that the defendant understood the consequences of his plea and consciously waived the rights articulated by the rule." Id.
Quoting State v. Taylor, 929 S.W.2d 209 (Mo.1996), the State argues that the motion court " 'saw to it that defendant was informed of all the advice required by Rule 24.02 and more.' " We disagree. In Taylor, our Supreme Court held that the court's failure to use its own voice to admonish the defendant did not violate Rule 24.02. Taylor, 929 S.W.2d at 216. Upon review of the plea hearing transcript, the Court found that although the defense and prosecuting attorneys questioned Taylor on the required advice of Rule 24.02, Taylor had answered more than 300 questions in detail, and the court had been an active participant in this questioning, interrupting "to correct or elaborate as needed." Id. The Taylor Court distinguished its facts from those in Dean v. State in which our western district found the court failed to address the defendant personally in open court as required by Rule 24.02 by relying on the defendant's representation that he and his attorney had gone over defendant's "Petition to Enter Plea of Guilty," a pre-printed form which purported to inform defendant of the matters enumerated in the rule. Dean v. State, 901 S.W.2d 323, 327 (Mo.App. W.D.1995).
The record before us is almost identical to the facts in Dean. At Johnson's plea hearing, a similar petition was used and the following exchange ensued:
Upon review of the transcript of the guilty plea hearing, we find the court failed to inform Johnson of the advice enumerated in and mandated by Rule 24.02. Neither the judge, prosecuting attorney, nor Johnson's attorney addressed him personally, informed or questioned him about the matters required by Rule 24.02. Instead, the court relied entirely on the Petition to Enter a Plea of Guilty to satisfy the requirements of Rule 24.02. While such a document may be used to supplement the court's personal admonishment to the defendant, it may...
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