Johnson v. State, SD 36948

CourtCourt of Appeal of Missouri (US)
Writing for the CourtDON E. BURRELL, J.
Citation642 S.W.3d 780
Decision Date29 March 2022
Docket NumberSD 36948
Parties Nick E. JOHNSON, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.

642 S.W.3d 780

Nick E. JOHNSON, Movant-Appellant,
STATE of Missouri, Respondent-Respondent.

No. SD 36948

Missouri Court of Appeals, Southern District, Division Two.

Filed: March 29, 2022
Rehearing and/or Transfer Denied April 21, 2022

JEDD C. SCHNEIDER, Columbia, Mo, for Appellant.

GREGORY L. BARNES, Jefferson City, Mo, for Respondent.


Nick E. Johnson ("Movant") pleaded guilty to first-degree burglary in 2012, but, for various reasons, he was not sentenced for that crime until 2018. Movant now appeals the denial of his Rule 24.035 motion seeking post-conviction relief.1

In four points, Movant claims the motion court clearly erred in denying his motion because: (1) the delay in his sentencing resulted in fundamental unfairness to Movant as his bargained-for concurrent, ten-year sentence became a "de facto consecutive sentence"; (2) the motion court used an "incorrect" legal standard to evaluate that aspect of Movant's claim; and plea counsel rendered ineffective assistance of counsel ("IAC") by: (3) "allowing" the delay in sentencing; and (4) failing to advise Movant that he could withdraw his guilty plea. Finding no merit in any of these claims, we affirm.

Background and Procedural History

In 2012, pursuant to a written agreement, Movant pleaded guilty as a prior and persistent offender and was to receive a ten-year sentence that would run concurrently with any other sentences he might have. The State also agreed to dismiss a first-degree robbery charge as a part of the agreement.

642 S.W.3d 782

Movant was in long-term drug treatment on another case at the time of his guilty plea. After he pleaded guilty in this case, Movant incurred other serious felony charges in another county, and he was incarcerated during most of the time period between his 2012 guilty plea and his sentencing hearing in 2018. The underlying premise of all of Movant's points is that the time lapse between his plea and sentencing resulted in his serving a de facto consecutive sentence rather than the concurrent sentence he was promised in his binding plea agreement. Movant offers no authority in support of that premise.

Standard of Review and Governing Law

Our review of a motion court's denial of a Rule 24.035 motion is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 24.035(k); Suber v. State , 516 S.W.3d 386, 388 (Mo. App. E.D. 2017) (internal citation omitted) .... We defer to the motion court's credibility determinations. Smith v. State , 413 S.W.3d 709, 715 (Mo. App. E.D. 2013) (internal citation omitted). "After a guilty plea, our review is limited to a determination of whether the movant's plea was knowing and voluntary." Arnold [v. State ], 509 S.W.3d [108,] 113 [(Mo. App. E.D. 2016) ] (internal citation omitted).

Goldberg v. State , 635 S.W.3d 599, 603 (Mo. App. E.D. 2021).

In deciding whether Movant's guilty plea was entered knowingly, intelligently, and voluntarily, the motion court made the following findings:

The plea record reflects that the plea was made voluntarily, knowingly,

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