Kerns v. State
| Decision Date | 05 February 2013 |
| Docket Number | No. SD 31722.,SD 31722. |
| Citation | 389 S.W.3d 749 |
| Parties | Johnnie Jerome KERNS, Movant–Appellant, v. STATE of Missouri, Respondent–Respondent. |
| Court | Missouri Court of Appeals |
Johnnie Jerome KERNS, Movant–Appellant,
v.
STATE of Missouri, Respondent–Respondent.
No. SD 31722.
Missouri Court of Appeals,
Southern District,
Division One.
Feb. 5, 2013.
[389 S.W.3d 751]
Robert McGee, Springfield, MO, for Appellant.
Chris Koster, Attorney General, and Robert J. Bartholomew, Assistant Attorney General, Jefferson City, MO, for Respondent.
GARY W. LYNCH, P.J.
Johnnie Jerome Kerns (“Movant”) appeals the motion court's denial of his Rule 24.035 1 motion for post-conviction relief. He raises two points on appeal: (1) the motion court erred in denying his claim that his guilty plea was involuntary because plea counsel assured him that his sentences would be ordered to be served concurrently, and (2) the motion court erred in denying his claim that plea counsel was ineffective for (a) failing to spend sufficient time with Movant to discuss the case, and (b) failing to fully investigate the case.2 We disagree and affirm.
Movant pleaded guilty to first-degree burglary, kidnapping, abuse of a child, first-degree assault, and armed criminal action. Those charges arose from a single course of conduct which culminated in his act of throwing a five-year-old child off a bridge. Movant was sentenced to serve eighteen years for armed criminal action and to the maximum sentences for each of the remaining charges. The plea court ordered Movant's sentences run consecutively, resulting in a total sentence of seventy years' imprisonment.
Movant timely filed a pro se motion for post-conviction relief, counsel was appointed, and an amended motion was filed. In the amended motion, Movant alleged, among other claims, (1) his guilty pleas were involuntary because plea counsel had assured him that his sentences would run concurrently, (2) plea counsel was ineffective for failing to meet with Movant more often, and (3) plea counsel was ineffective for failing to fully investigate the case prior to the guilty pleas.
During the evidentiary hearing on the amended motion, Movant testified that before pleading guilty, he met with plea counsel only four or five times. He said plea counsel advised him that he did not
[389 S.W.3d 752]
think Movant would receive consecutive sentences. Movant admitted, however, that he had been informed at the plea hearing that his sentences could be ordered to run consecutively and that plea counsel never promised that the sentences would be run concurrently.
Plea counsel testified that from the beginning of the representation, Movant wanted to take responsibility for his actions and resolve the case as quickly as possible. Plea counsel's records demonstrated that before the plea hearing, he met with Movant on nine occasions. Plea counsel knew that there was no guarantee that the sentences would be run concurrently and discussed that fact with Movant. Plea counsel believed that pleading guilty was the best possible way to proceed in the case because the facts of the case were “pretty aggravating.”
The motion court concluded that Movant's claim that he believed he would not receive consecutive sentences was refuted by the record. In support of that conclusion, the motion court quoted a portion of the guilty plea hearing transcript in which the prosecutor explained that the sentences could be run consecutively and Movant indicated he understood. With respect to the claim that plea counsel was ineffective for failing to fully investigate the case, the motion court found that Movant had failed to prove the claim at the evidentiary hearing when he failed to present evidence demonstrating any information plea counsel could have discovered through such additional investigation. Finally, in denying Movant's claim that plea counsel was ineffective for failing to meet with Movant more frequently, the motion court referred to Movant's testimony at the plea hearing that he had all the opportunity he needed to discuss the matter with his attorney. The motion court denied relief, and this appeal followed.
“Appellate review of the motion court's action on a Rule 24.035 motion is limited to a determination of whether the findings and conclusions of the motion court are clearly...
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Tatum v. Tatum
...court for decision." Rule 81.12(a). "It is the appellant’s duty to prepare and file a complete record on appeal." Kerns v. State, 389 S.W.3d 749, 753 (Mo. App. S.D. 2013) (citation omitted). "We cannot accept the statements in a party’s brief as a substitute for the record on appeal." Trout......
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Lynn v. State
...the issues on appeal "so that we are not forced to speculate on the facts and the exact claim of [the appellant]." Kerns v. State, 389 S.W.3d 749, 752 (Mo. App. S.D. 2013) (quotation omitted). "The record on appeal shall contain all of the record, proceedings and evidence necessary to the d......
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Powell v. City of Kan. City
...those claims in its responsive brief, we exercise our discretion to review Appellant's claims ex gratia. See Id. ; Kerns v. State, 389 S.W.3d 749, 751 n. 2 (Mo.App.S.D. 2012) ; Medlin v. RLC, Inc., 423 S.W.3d 276, 283 n.9 (Mo.App.S.D. 2014).10 In addition, contrary to Appellant's assertions......