Jones v. State

• Decision Date: 22 December 2020
• Docket Number: No. ED 108508,ED 108508
• Citation: 613 S.W.3d 918
• Parties: Antonio D. JONES, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

613 S.W.3d 918

Antonio D. JONES, Appellant,

v.STATE of Missouri, Respondent.

No. ED 108508

Missouri Court of Appeals, Eastern District, DIVISION THREE.

Filed: December 22, 2020

FOR APPELLANT: Anna Callan Moench, 1010 Market Street, Suite 1100, St. Louis, Missouri 63101.

FOR RESPONDENT: Dora A. Fichter, Eric Schmitt, P.O. Box 899, Jefferson City, Missouri 65102.

Angela T. Quigless, P.J., Kurt S. Odenwald, J., and James M. Dowd, J.

James M. Dowd, Judge

Introduction

Antonio Jones appeals the judgment denying without an evidentiary hearing his Rule 24.035¹ motion for post-conviction relief. Jones pled guilty pursuant to North Carolina v. Alford , 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) to felony unlawful possession of a firearm in violation of § 571.070.² Jones was sentenced as a prior and persistent offender to 15 years in the Missouri Department of Corrections but execution of his sentence was suspended subject to Jones's completion of 5 years of probation. On October 4, 2018, Jones's probation was revoked for violations of the conditions of his probation and the previously imposed sentence was executed. On October 10, 2018, Jones was delivered to the Missouri Department of Corrections to serve his 15-year sentence. Jones timely filed his pro se Rule 24.035 motion, and appointed counsel timely filed an amended motion alleging three claims, which the motion court denied without an evidentiary hearing.

In this appeal, Jones alleges the motion court clearly erred in two respects. In his first point, Jones argues his 15-year sentence exceeds the maximum sentence authorized by law because the finding that Jones was a prior and persistent offender was based upon insufficient proof. And in his second point, Jones argues his plea and sentencing counsel was ineffective because counsel acknowledged on the record without Jones's consent that his prior convictions were felonies, which acknowledgement the sentencing court used to make its finding that Jones was a prior and persistent offender. Finding no clear error by the motion court, we affirm.

Background

On October 14, 2015, Jones was charged by grand jury indictment with the class C felony of unlawful possession of a firearm in violation of § 571.070. The indictment alleged that on March 12, 2015, Jones knowingly possessed a .40 caliber semi-automatic handgun and that Jones had been previously convicted of a felony. Further, the indictment asserted that Jones was a prior and persistent offender and therefore punishable to an extended term of imprisonment under § 558.016 and § 557.036. The indictment recited that Jones was found guilty on October 23, 2012, of felony resisting arrest (Cause No. 1022-CR01962) and that Jones pled guilty on June 21, 2010 to felony possession of a controlled substance (Cause No. 0922-CR02561).

The charge of unlawful possession of a firearm, a class C felony, is punishable from 1 day up to 7 years in the Missouri Department of Corrections. § 571.070. But, if sentenced as a prior and persistent offender under § 558.016 and § 557.036, the charge carries the sentence of a class B felony of up to 15 years in the Missouri Department of Corrections. § 558.016.

At his January 10, 2017, plea hearing, Jones entered an Alford plea of guilty to the class C felony of unlawful possession of a firearm. In response to the plea court's inquiry, Jones demonstrated he was of sound mind and understood the rights he was waiving by entering a plea of guilty. When asked about the range of punishment for the crime, the State expressed its intent that Jones be sentenced as a prior and persistent offender and recited his prior convictions on the record. When Jones was asked if his priors were read correctly, plea counsel objected, arguing Jones's 2012 resisting arrest conviction should not be considered a felony because he was found not guilty at trial of the accompanying charge that led to his arrest and he was sentenced to only 1 year. Nevertheless, plea counsel acknowledged that the court record showed the resisting arrest conviction was a felony and that no appeal was taken. Counsel also acknowledged that Jones was convicted in 2010 of felony possession of a controlled substance.

Rejecting counsel's complaint that the 2012 conviction should not be treated as a felony, the plea court found that Jones had two prior felony convictions and therefore found him to be a prior and persistent offender. Jones indicated that he understood the plea court's decision.

At the March 3, 2017, sentencing hearing, plea counsel reiterated Jones's frustration that his conviction for resisting arrest had been classified as a felony but conceded that the 2012 judgment unequivocally classified it as a felony. After the State recommended a 10-year sentence, plea counsel asked for probation and suggested that if the court were to consider probation, Jones was "willing to take any time on [a] backup [sentence] that would [be given]." The court sentenced Jones as a prior and persistent offender under § 558.016 and 557.036, to 15 years based on his two prior felony convictions, but suspended execution of the sentence subject to Jones's successful completion of 5 years supervised probation.

However, on October 4, 2018, after multiple violations of the terms of his probation, Jones's probation was revoked, and he was delivered to the Missouri Department of Corrections to serve his 15-year sentence. Jones timely filed his pro se Rule 24.035 motion and appointed counsel timely filed Jones's amended motion seeking to vacate his judgment and sentence. In his amended motion, Jones asserted (1) that the sentence imposed by the plea court exceeded the maximum sentence authorized by law because his prior conviction for resisting arrest should not constitute a felony, (2) that the plea court, in finding Jones was a prior and persistent offender, erred in accepting insufficient proof of Jones's prior convictions, and (3) that plea counsel was ineffective because counsel failed to demonstrate that Jones's 2012 conviction should not have been classified as a felony for purposes of his sentencing. On November 6, 2019, the court issued its findings of fact and conclusions of law denying Jones's post-conviction relief motion without an evidentiary hearing.

This appeal follows.

Standard of Review

A motion court's findings of fact and conclusions of law are presumptively correct. Mitchell v. State , 510 S.W.3d 366, 370 (Mo. App. E.D. 2017) (citing Wilson v. State , 813 S.W.2d 833, 835 (Mo. banc 1991) ). Appellate review of the motion court's action under 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); see also Morrow v. State , 21 S.W.3d 819, 822 (Mo. banc 2000) ; McLaughlin v. State , 378 S.W.3d 328, 336-337 (Mo. banc 2012). " ‘The motion court's findings and conclusions are clearly erroneous only if,’ after review of the record, the appellate court is ‘left with a definite and firm impression that a mistake was made.’ " Booker v. State , 552 S.W.3d 522, 526 (Mo. 2018), reh'g denied (Aug. 21, 2018) (quoting Ross v. State , 335 S.W.3d 479, 480 (Mo. banc 2011) ). A movant is only entitled to an evidentiary hearing if: "(1) he pleaded facts, not conclusions, warranting relief; (2) the facts alleged are not refuted by the record; and (3) the matters complained of resulted in prejudice to the movant." McNeal v. State , 412 S.W.3d 886, 889 (Mo. banc 2013) ; Booker , 552 S.W.3d at 526. A hearing does not need to be held when the motion court determines the record conclusively shows the movant is not entitled to relief. Rule 24.035(h).

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)

In order to prevail on an ineffective assistance of counsel claim, a movant must show (1) his attorney failed to exercise the customary skill and diligence that a reasonably competent attorney would perform in a similar circumstance, and (2) he was thereby prejudiced. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). When a movant alleges ineffective assistance of counsel following a guilty plea, the claim of ineffective assistance is "immaterial except to the extent it impinges on the voluntariness and knowledge with which a [movant] pled guilty." Ventimiglia v. State , 468 S.W.3d 455, 462 (Mo. App. E.D. 2015) (quoting Cain v. State , 859 S.W.2d 715, 717 (Mo. App. E.D. 1993) ). The Strickland prejudice analysis is applicable to counsel's representation at the sentencing phase because ineffective assistance that results in any amount of additional jail time has Sixth Amendment significance. Rush v. State , 366 S.W.3d 663, 666 (Mo. App. E.D. 2012).

Analysis

I. Jones waived any objections to the sufficiency of proof in connection with his prior offenses when he and his attorney admitted to his prior felony convictions.

In his first point, Jones argues the motion court clearly erred by denying without an evidentiary hearing the claim that his 15-year sentence exceeds the maximum sentence authorized by law because the sentencing court relied on insufficient proof in finding Jones was a prior and persistent offender. We disagree.

If a defendant, who has been found guilty of a class B, C, D, or E felony, is determined to be a persistent offender, the sentencing court may increase the defendant's prison term by sentencing the defendant pursuant to the authorized term of imprisonment for the offense one class higher than the offense for which the defendant was found guilty. § 558.016.7. For example, a defendant determined to be a persistent offender found guilty of a class C felony would be sentenced subject to the authorized term of imprisonment for a class B felony.

"A persistent offender is one who has been found guilty of two or more felonies committed at different times," § 558.016.3, and which were committed...