Like v. State
| Decision Date | 26 December 2018 |
| Docket Number | No. ED 106388,ED 106388 |
| Parties | Randy LIKE, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent. |
| Court | Missouri Court of Appeals |
Stephen P. Ranz, 1010 Market Street, Suite 1100, St. Louis, MO 63101, For Movant/Appellant.
Dora A. Fichter, P.O. Box 899, Jefferson City, MO 65102, For Respondent/Respondent.
Randy Like (Appellant) appeals from the motion court’s Findings of Fact, Conclusions of Law, Order and Judgment (Judgment) denying, without an evidentiary hearing, his amended Motion to Vacate, Set Aside or Correct Judgment and Sentence filed pursuant to Rule 24.0351 (post-conviction motion). On appeal, Appellant contends the motion court clearly erred in denying, without an evidentiary hearing, his claim he received ineffective assistance of counsel. Because we hold that Appellant’s allegation of ineffective assistance of counsel is not clearly refuted by the record, we reverse and remand to the motion court for an evidentiary hearing.
On August 9, 2011, Appellant pleaded guilty to one count of attempted first degree robbery and one count of armed criminal action in Jefferson County Cause No. 11JE-CR00463-01 (Jefferson County case) for an incident which occurred on February 12, 2011. He was sentenced on August 9, 2011, to 15 years on the attempted robbery count and 5 years on the armed criminal action count in the Missouri Department of Corrections (the DOC), with the sentences to be served consecutively.
On August 29, 2016, Appellant was charged by the State of Missouri (the State) in St. Louis County Cause No. 11SL-CR09370-01 (St. Louis County case) with one count of robbery in the first degree (Count I) and one count of armed criminal action (Count II) for an incident alleged to have occurred on February 11, 2011.
Appellant was arraigned on the charges and entered pleas of not guilty on September 14, 2016. On October 4, 2016, Appellant’s trial counsel (Counsel) filed a motion to dismiss Count II, the armed criminal action charge, as the crime was alleged to have occurred on February 11, 2011, outside of the statute of limitations. Count II was dismissed by the trial court on October 14, 2016.
Trial was set in the matter for January 9, 2017. On January 4, 2017, the court ordered the case to remain on the docket on January 9, 2017, but scheduled the case for a settlement conference rather than a trial. At the settlement conference, the case was continued until January 20, 2017, for Appellant to enter a guilty plea. While there are comments in the plea and sentencing transcript from January 23, 2017, which allude to a hearing held on Friday, January 20, 2017, there was no transcript or written documentation filed. On January 23, 2017, Appellant entered a blind plea of guilty to Count I and was sentenced the same day.
At the plea hearing, the court advised Appellant of his trial rights, which Appellant indicated he understood. The prosecutor set forth the factual basis for the plea, stating Appellant entered Big Lots in St. Louis and demanded money and the surveillance tape from the manager. The prosecutor stated she would have presented testimony from the manager and another employee that Appellant displayed a gun and took over $1,300 from the store. She stated the two witnesses knew Appellant personally as he previously worked at Big Lots, and further, Appellant later admitted committing the offense.
Appellant initially testified the statement of the prosecutor was not correct, and the court went off the record to allow Appellant to speak with Counsel. Once back on the record, Appellant testified the prosecutor’s statement was factually accurate.
The court conducted the following inquiry:
The prosecutor set forth the sentencing range, indicating the range was 10 to 30 years or life in prison, and Appellant testified he understood the sentencing range. The court then stated "this is a plea not pursuant2 ," but inquired of the prosecutor what the State’s recommendation was. The prosecutor stated the recommendation was for 18 years in the DOC, and Appellant agreed that offer had been communicated to him previously by Counsel. The court questioned Appellant regarding the assistance Counsel provided, during which a recess was taken because the court wanted "to give [Appellant] an opportunity to speak with [his] attorney," as it "seem[ed] like there [was] some confusion," and the court was "not sure whether [Appellant] [understood] what [was] actually going on."
After allowing Appellant to speak with Counsel and confirming Appellant had no questions of Counsel or the court, the court accepted Appellant’s plea of guilty. Appellant waived the pre-sentence investigation, and the court sentenced him to 11 years in the DOC. The court ordered Appellant’s sentence to run concurrent with his sentence in his Jefferson County case and ordered Appellant be given credit for "any and all time served."
Following the pronouncement of Appellant’s sentence, the court advised Appellant of his rights under Rule 24.035. The court questioned him again regarding the assistance he received from Counsel. The court asked him if "other than the plea bargain, did [his] lawyer make any threats or promises to get [him] to plead guilty," and Appellant stated "no." The court then asked if Appellant had anything else he wished to tell the court regarding Counsel’s representation and the following exchange occurred:
The court told Appellant it was his decision to go into Big Lots that put Appellant in front of the court, and what he was asking of Counsel was "to work some kind of magic" and "[i]t doesn't work like that." The court then found there was no probable cause to believe Appellant received ineffective assistance of counsel.
On April 7, 2017, Appellant filed a timely pro se motion to vacate, set aside, or correct the judgment or sentence. The motion court appointed the Public Defender’s office to represent Appellant on April 12, 2017, and the transcript from the plea and sentencing hearing was filed on April 24, 2017. On May 16, 2017, appellate counsel entered her appearance and requested an extension of time to file an amended motion, which was granted on May 23, 2017. The amended motion was timely filed on July 24, 2017, along with appellate counsel’s request for an evidentiary hearing.
Appellant’s amended post-conviction motion alleged Counsel advised Appellant he would receive credit for the time he was incarcerated in the DOC on his Jefferson County case towards his St. Louis County case. Appellant’s motion stated when he returned to the DOC following his guilty plea, he was informed by the DOC he would not receive credit for the sentence on his St. Louis County case for the time served on his Jefferson County case. Appellant’s post-conviction motion further alleged but for Counsel’s erroneous representation to Appellant regarding credit for time served, Appellant would not have pleaded guilty but instead insisted on going to trial.
On August 18, 2017, the court denied Appellant’s request for an evidentiary hearing on the post-conviction motion. The court issued its Judgment on December 19, 2017, denying the post-conviction motion. This appeal follows.
On appeal, Appellant alleges the motion court clearly erred in denying his post-conviction motion without an evidentiary hearing because he alleged facts which warranted relief and were not clearly refuted by the record, in that he was denied his rights to effective assistance of counsel and due process because plea counsel induced his involuntary, unintelligent, and unknowing guilty plea by erroneously advising Appellant he would be credited for the time he served on his unrelated Jefferson County case, and had Appellant known he would not receive credit...
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