Johnson v. State

• Decision Date: 29 December 2006
• Docket Number: No. 27601.,27601.
• Parties: Sonnie K. JOHNSON, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

210 S.W.3d 427

Sonnie K. JOHNSON, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.

No. 27601.

Missouri Court of Appeals, Southern District, Division Two.

December 29, 2006.

Kent Denzel, Columbia, MO, for appellant's.

Stephanie Morrell, Jefferson City, MO, for Respondent's.

JEFFREY W. BATES, Chief Judge.

Sonnie K. Johnson (Johnson) appeals from an order denying his Rule 24.035 motion for post-conviction relief.¹ Because the trial court failed to issue findings of fact and conclusions of law concerning four of Johnson's seven claims for relief, we are unable to engage in meaningful appellate review. Therefore, the case must be reversed and remanded.

I. Factual and Procedural Background

In early 2004, Johnson was charged by felony information with committing domestic assault in the second degree in violation of § 565.073 (the assault case). In a separate case, Johnson was charged by felony information with committing the crime of possession of a controlled substance in violation of § 195.202 (the possession case). In May 2004, the State filed an amended felony information in the possession case alleging that Johnson was a prior and persistent offender.

Johnson decided to plead guilty in both cases, so a combined plea hearing was held in June 2004. At the outset of the hearing, the court announced that Johnson intended to plead guilty in the class C felony assault case without a plea agreement. Plea counsel responded affirmatively. The court then noted that an amended information had been filed in the possession case. Plea counsel waived a formal reading of the information. When the court stated that it was Johnson's intention to plead guilty as a prior and persistent offender in the possession case without a plea agreement, however, Johnson immediately said, "Huh uh, huh uh." After an off-the-record discussion between Johnson and his attorney, plea counsel answered the court's question affirmatively. Thereafter, the court questioned Johnson at length regarding his knowledge of his rights and his desire to plead guilty. At the conclusion of the court's inquiry, the prosecutor was asked to state the range of punishment for each offense and recite the factual basis for each charge. Johnson was advised that each offense was a class C felony with a maximum punishment of seven years in prison, but that he could receive up to 15 years in prison in the possession case because he was a prior and persistent offender. The prosecutor also described the evidence that he expected to present if both of the cases went to trial. Plea counsel agreed that the State had sufficient evidence to make a submissible case as to each charge. Johnson agreed that he was pleading guilty because he did the things described in the prosecutor's factual-basis recitation. The court accepted Johnson's pleas after finding that there was a factual basis for both charges and that Johnson was entering his guilty pleas voluntarily and with an understanding of his rights. Based on evidence that Johnson had two prior felony convictions, the court also found Johnson to be a prior and persistent offender beyond a reasonable doubt.

In July 2004, the sentencing hearing was held. When the hearing commenced, plea counsel orally moved that Johnson be allowed to withdraw both of his guilty pleas. Johnson's reason for seeking to withdraw his pleas was that "[h]e did not feel he really had had time to think about the impact of the plea as a prior and persistent offender." The court denied the motion. The State recommended concurrent sentences of seven years on each count. Plea counsel asked the court to consider placing Johnson on probation. The court sentenced Johnson to serve concurrent terms of five years and denied his request for probation.

Johnson was delivered to the Department of Corrections on August 12, 2004. On January 11, 2005, Johnson timely filed a pro se motion for post-conviction relief pursuant to Rule 24.035 (the first motion).² Johnson sought to set aside his convictions and sentences because: (1) the trial court erred in not allowing him to withdraw his guilty pleas at sentencing; (2) his plea counsel refused to withdraw after Johnson filed a complaint against him with the disciplinary counsel; and (3) his plea counsel refused to retain a forensic expert to prove his innocence and to "find out why the court accepted heresay [sic]" at the preliminary hearing in his possession case. The instruction section of this Form 40 motion advised Johnson that he was "required to include in this motion every claim known to him for vacating, setting aside or correcting the conviction and sentence or it will be waived or abandoned. Be sure to include every claim."

On January 14, 2005, the court appointed the public defender's office to represent Johnson. Cinda Eichler (post-conviction counsel) entered her appearance on behalf of Johnson on February 1, 2005. On April 13, 2005, the transcript for the plea and sentencing hearing was filed. Pursuant to Rule 24.035(g), an amended motion had to be filed within 60 days. On May 10, 2005, post-conviction counsel requested an additional 30 days to file the amended motion. As authorized by Rule 24.035(g), the motion court granted the request. Accordingly, the last date for filing an amended motion was July 12, 2005.

On May 16, 2005, Johnson filed a second pro se motion for post-conviction relief (the second motion) entitled "Movant's Rule 24.035 Motion Additional Claims." This motion alleged four new claims not contained in Johnson's first motion. The first sentence of the second motion stated: "Now Comes, Sonny K Johnson and presents the following additional claims to be incorporated into Movant's amended motion by the attorney of record, Cinda J. Eichler, Public Defender." The additional claims that Johnson sought to assert involved allegations of ineffective assistance of counsel in the following respects: (a) failing to advise Johnson before he pled guilty of the significance of being sentenced as a persistent offender; (b) failing to advise Johnson about the difference between a "true plea agreement" and a "non-binding recommendation [sic]" because Johnson did not understand he would not have an opportunity to withdraw his pleas once entered in the latter situation; (c) failing to prepare a written plea petition, which would have better informed Johnson as to the nature of any agreements; and (d) failing to file a written motion to withdraw the guilty pleas as he requested immediately following sentencing. Johnson signed the second motion and requested an evidentiary hearing.

On July 11, 2005, post-conviction counsel filed a statement in lieu of an amended motion pursuant to Rule 24.035(e). This statement averred that post-conviction counsel had discussed the case with Johnson by telephone and that she had reviewed relevant court documents, including "the pro se motions filed by [Johnson] on January 11, 2005 and May 16, 2005 in his postconviction case." Post-conviction counsel further averred that there were no potentially meritorious claims known to her that had been omitted from Johnson's pro se motions.

On November 2, 2005, the motion court held an evidentiary hearing. Before presenting any testimony, post-conviction counsel made the following statement: "I just want to note for the Court that there was no amended motion filed in this case. I did file a statement in lieu of amended motion. So the claims that we're proceeding on and that Mr. Johnson intends to testify about are the pro se claims that are contained in his motions that were filed January 11, 2005 and May 16, 2005." Johnson was the only witness to testify. Near the beginning of his testimony, post-conviction counsel again reviewed the claims that were being adjudicated:

Q: The court file indicates that you filed your original pro se motion under Rule 24.035 in January of 2005, and then you filed some additional pro se claims in May of 2005; is that correct?

A: Yes, ma'am.

Q: Okay. And you understand that that's what we're litigating here today?

A: Yes, ma'am.

Post-conviction counsel then elicited testimony from Johnson, without any objection being interposed by the State, concerning each of the seven claims for relief contained in the first and second motion.

After Johnson rested, the State sought to call plea counsel as a witness to refute a claim by Johnson that plea counsel had advised Johnson to lie. This claim was not included in Johnson's first or second motion and had first been raised by him during his testimony at the evidentiary hearing. Since plea counsel was not then available, the court continued the evidentiary hearing. After several unsuccessful attempts to complete the hearing, the State filed a motion to dismiss that unpled claim and thereby dispense with the need for plea counsel's testimony. The court sustained the motion on February 10, 2006.

On February 27, 2006, the motion court entered an "Order Denying Form 40 Motion to Vacate." The court issued findings of fact and conclusions of law that only addressed the three claims contained in Johnson's first motion. The order provided no explanation whatsoever concerning the motion court's failure to rule on the additional claims that were contained in the second motion and addressed at the evidentiary hearing.

On appeal, Johnson requests that we reverse and remand the case with directions that the motion court issue findings and conclusions on the four claims in the second motion that were addressed at the post-conviction relief hearing, but not ruled upon by the order denying relief.

II. Standard of Review

Our review of a motion court's decision on a Rule 24.035 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); Barnes v. State, 160 S.W.3d 837, 838 (Mo.App.2005). We can only find clear error if, after reviewing the entire...