Lee v. State

• Decision Date: 05 November 2002
• Docket Number: No. WD 60905.,WD 60905.
• Citation: 97 S.W.3d 9
• Parties: Michael E. LEE, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 9

97 S.W.3d 9

Michael E. LEE, Appellant, v. STATE of Missouri, Respondent.

No. WD 60905.

Missouri Court of Appeals, Western District.

November 5, 2002.

Motion for Rehearing and/or Transfer to Supreme Court December 24, 2002.

Application for Transfer Denied March 4, 2003.

COPYRIGHT MATERIAL OMITTED

Kent Denzel, Assistant State Public Defender, Columbia, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Andrea M. Follett, Asst. Atty. Gen., Jefferson City, MO, for respondent.

Before JAMES M. SMART, P.J., ROBERT G. ULRICH and RONALD R. HOLLIGER, JJ.

ROBERT ULRICH, Judge.

Michael Lee appeals the judgment of the motion court denying his Rule 24.035 motion for postconviction relief following an evidentiary hearing. Mr. Lee sought to vacate his conviction for stealing, Section 570.030, RSMo 2000, and sentence of ten years imprisonment. He claims that trial counsel was ineffective because she erroneously advised him to enter a guilty plea before determining whether the 180 day time limitation outlined in Section 217.460 of the Uniform Mandatory Disposition of Detainers Law had expired. Mr. Lee also contends that trial counsel was ineffective for failing to explain the calculation of the 180 day time limitation to him thereby rendering his guilty plea unknowing and involuntary. He argues that had he understood that the 180 day period had not expired he would not have pled guilty. The judgment of the motion court is affirmed.

Factual and Procedural Background

Michael Lee was charged by felony complaint with one count of class C felony stealing, Section 570.030, RSMo 2000, on January 31, 1997. The complaint alleged that Mr. Lee stole a 1990 Pontiac Grand Prix that he later wrecked. Shortly thereafter, he began serving concurrent three-year sentences for prior offenses that he committed in Clay, Boone, and Ray Counties. While incarcerated, Mr. Lee filed a request for speedy disposition of his felony stealing case pursuant to the Uniform Mandatory Disposition of Detainers Law ("UMMDL"), Sections 217.450 to 217.485, RSMo 2000. Section 217.460 provides that, subject to certain exceptions, the complaint shall be brought to trial within 180 days after receipt of the request and certificate by the court and prosecuting attorney unless the 180 day period is tolled. Here, the court and prosecutor received the request and certificate on April 8, 1998. Absent any exceptions that might toll the 180 day period, the complaint had to be brought to trial within 180 days of April 8, 1998. On July 27, 1998, Mr. Lee filed a motion for a change of judge. His request was granted on August 24, 1998, when a new judge was assigned to hear the case. On September 4, 1998, Mr. Lee entered a plea of not guilty and a jury trial was set for November 7, 1998.

On October 26, 1998, Mr. Lee pleaded guilty to the charge pursuant to a plea agreement in which the State agreed to recommend suspended execution of a ten year sentence to run consecutive to the sentence for the prior offenses and five years supervised probation with the special condition that he pay restitution of at least $150 per month to the victims. Following an inquiry into Mr. Lee's understanding of the charges, range of punishment, and consequences of his plea, the court accepted his guilty plea and sentenced him accordingly.

Mr. Lee subsequently filed a pro se Rule 24.035 motion to vacate, set aside, or correct the judgment or sentence. An amended motion was filed on behalf of Mr. Lee by appointed counsel. In the amended motion, Mr. Lee alleged that his plea counsel was ineffective for advising him to plead guilty six days before the expiration of the 180 day time limit under the UMDDL instead of advising him to wait and file a motion to dismiss based on the court's subsequent loss of jurisdiction under Section 217.460, RSMo 2000.

An evidentiary hearing was held on Mr. Lee's postconviction relief motion. At the hearing, Mr. Lee's trial counsel testified that although she was able to recall that she and Mr. Lee had discussed the disposition of speedy trial motion on September 15, 1998, she could not recall the specifics of the conversation. She also testified that her notes did not reflect any detailed information regarding the conversation. When asked why she set the guilty plea hearing for a date prior to the expiration of the 180 day time period, Mr. Lee's trial counsel testified that it was her understanding that Mr. Lee wanted to plead guilty and based on her calculation, the 180 day period would have expired after the trial date of November 7, 1998.¹ Mr. Lee testified that his trial counsel "did not respond in any particular way" when he reminded her of the disposition of speedy trial motion.

On December 28, 2001, the motion court found that Mr. Lee's failure to object or protest to a trial date outside of the 180 day period constituted his agreement to the court's action. The court further found that Mr. Lee's guilty plea constituted a disposition and that such disposition occurred within the 180 day period thereby satisfying Section 217.460, RSMo 2000. The motion court concluded, therefore, that Mr. Lee's counsel was not ineffective. This appeal followed.

Standard of Review

Appellate review of the denial of a postconviction relief motion is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 24.035(k); State v. Roll, 942 S.W.2d 370, 375 (Mo. banc), cert. denied, 522 U.S. 954, 118 S.Ct. 378, 139 L.Ed.2d 295 (1997). The motion court's findings and conclusions are presumptively correct. Shackleford v. State, 51 S.W.3d 125, 127 (Mo.App. W.D.2001). Findings and conclusions are clearly erroneous only if, after a review of the entire record, the appellate court is left with a definite and firm impression that a mistake has been made. Roll, 942 S.W.2d at 375.

To prevail on an ineffective assistance of counsel claim, a movant must establish that counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under similar circumstances and that he was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). There is a strong presumption that counsel was competent. State v. Harris, 870 S.W.2d 798, 814 (Mo. banc 1994). The movant must prove by a preponderance of the evidence that trial counsel was ineffective. Rule 24.035(i); Potts v. State, 22 S.W.3d 226, 229 (Mo.App. W.D.2000). Where a guilty plea has been entered, the adequacy of defense counsel is immaterial unless it prevents the plea from being entered voluntarily and with an understanding of the charges. Krider v. State, 44 S.W.3d 850, 856 (Mo.App. W.D.2001). Prejudice exists only when trial counsel's actions are outcome determinative. Harris, 870 S.W.2d at 814. To satisfy the prejudice requirement following a guilty plea, a movant must show that, but for counsel's errors, he would not have pleaded guilty and would have insisted on a trial. Roland v. State, 824 S.W.2d 526, 529 (Mo.App.1992).

Analysis

For his only point on appeal, Mr. Lee contends that the motion court clearly erred in denying his Rule 24.035 motion for postconviction relief. He contends that he was denied effective assistance of counsel because plea counsel advised him to enter a guilty plea without informing him that the 180 day period was scheduled to expire between the guilty plea hearing and the trial date. Mr. Lee claims that his guilty plea was unintelligent and involuntary because he was under the mistaken belief that the 180 day period had already expired when he entered his guilty plea.

Ineffective Assistance of Counsel

Mr. Lee's sole contention on appeal is that he was denied effective assistance of counsel because his plea counsel advised him to plead guilty when the 180 day period under the UMDDL was about to expire and that this rendered his guilty plea involuntary and unintelligent. He also argues that his plea counsel incorrectly calculated the expiration of the 180 day period. Mr. Lee claims that the 180 day period expired between October 26, 1998, the plea hearing date, and November 7, 1998, the trial date. His plea counsel testified that she calculated the 180 day period to expire after the trial date of November 7, 1998.

The first task is to determine when the 180 day period began. Section 217.460 of the UMDDL provides that the 180 day period begins when the court and prosecutor receive the request and certificate. In this case, the record reflects that both the court and prosecutor received the request and certificate on April 8, 1998. The second step is to determine whether the 180 day period was tolled. The 180 day period may be tolled: (1) for good cause shown in open court, the offender or his counsel being present; (2) the parties may stipulate for a continuance; and (3) a continuance may be granted if notice is given to the attorney of record with an opportunity for him to be heard. § 217.460, RSMo 2000. Additionally, any delay of a defendant's trial resulting from the defendant's affirmative action is excludable from the 180 day period. State v. Laramore, 965 S.W.2d 847, 850 (Mo.App. E.D.1998). In this case, an affirmative action by Mr. Lee took place on July 27, 1998, when he filed a motion for a change of judge. If a delay is actually necessary because of a motion filed by the accused, the delay is excludable. State v. Galvan, 795 S.W.2d 113, 118 (Mo.App. S.D.1990). The 29 day time span between the filing of his motion and the assignment of the new judge is excluded from the 180 day calculation. Calculations indicate that the 180 day period expired on November 2, 1998.

Although Mr. Lee has established that his plea counsel incorrectly calculated the expiration of the 180 day period, this is insufficient to support an ineffective assistance of counsel claim. "The defendant must prove more than a mistake by his lawyer to establish...