Martin v. State, ED 85959.

Decision Date28 March 2006
Docket NumberNo. ED 85959.,ED 85959.
Citation187 S.W.3d 335
PartiesJulius MARTIN, Appellant, v. STATE of Missouri, Respondent.
CourtMissouri Court of Appeals

Jo Ann Rotermund, Assistant Public Defender, St. Louis, MO, for appellant.

Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for respondent.

PATRICIA L. COHEN, Judge.

Julius Martin appeals the judgment denying his Rule 24.035 motion without an evidentiary hearing. We affirm.

I. BACKGROUND

Martin was charged by indictment with first-degree robbery based on allegations that he and another defendant forcibly stole several items and, in the course thereof, displayed what appeared to be a dangerous instrument. The indictment also included an armed criminal action count, in which it was alleged that the defendants knowingly committed the felony of first-degree robbery with and through the use, assistance and aid of a dangerous instrument.

At the plea hearing, Martin stated that he understood he was charged with robbery in the first degree and armed criminal action and that he discussed these charges with his lawyer, who explained them to Martin so he could understand them. The State asserted that, if the case went to trial, it would prove that Martin forcibly stole a knife, a cigarette, a lighter and money from the victim; that, in the course thereof, Martin displayed what appeared to be a dangerous instrument; and that Martin knowingly committed that felony with, and through the use, assistance and aid of, a dangerous instrument. Upon further questioning by the court, the State explained that the dangerous instrument was a knife: "Martin had a knife that he had taken out of the victim's pocket and placed near his throat." When the trial court asked if the state's statement was accurate, Martin responded "Most of it was, sir." The court inquired further:

THE COURT: Okay, did you participate in robbing this person?

DEFENDANT: Yes, sir.

THE COURT: Okay. And somebody used a knife in the course of the robbery, is that right?

DEFENDANT: Yes, sir, he pulled a knife out on me and I took it from him, sir.

THE COURT: Oh, okay. And did you take something from him after you took the knife?

DEFENDANT: Yes, sir.

The State explained that the range of punishment for the robbery was ten to 30 years or life imprisonment and three years to life for the armed criminal action. Martin stated that he understood the range of punishment. The trial court then asked if Martin understood that, because he had no plea agreement, Martin could be sentenced up to life in prison on both counts. Martin said he understood. The trial court went on to explain that Martin would have to serve 85% of any sentence on the robbery without probation or parole and at least three years for armed criminal action without probation or parole. Martin said he understood. The trial court also explained the possibility that the sentences on these counts could be ordered to run consecutively, in which case Martin would be in prison for a long time. Martin said he understood.

Just before entering his pleas, Martin again stated that he had discussed the case with his lawyer, who fully advised him as to all parts of his case, including his legal rights. Martin said he understood his right to a jury trial and all the attendant rights described by the trial court, all of which he understood were waived by pleading guilty. Martin pled guilty to both counts, and the trial court accepted the pleas.1

Martin filed a motion for post-conviction relief under Rule 24.035, claiming that his pleas lacked a sufficient factual basis because the State failed to show that the knife was used forcibly to take the victim's property and failed to show that the knife was a dangerous instrument or deadly weapon. Martin also alleged that the State only established a factual basis for robbery in the second degree and that his sentence exceeded the maximum penalty for second-degree robbery. Finally, Martin claimed that his plea to armed criminal action was unknowing, involuntary and unintelligent because the court failed to advise him of the maximum sentence for that crime.

The motion court denied Martin's motion without an evidentiary hearing, finding that his claims were directly refuted by the record showing that he understood the nature of the charges and the range of punishment. The motion court concluded that, contrary to Martin's argument, a description of the knife's length was not required to establish a factual basis for either of these charges; rather, the knife was shown to constitute a dangerous instrument as required for both robbery in the first degree and armed criminal action. The motion court also concluded that Martin clearly understood that punishment for armed criminal action ranged from three years to infinity. Martin appeals.

II. DISCUSSION

We review the denial of a post-conviction motion under Rule 24.035 to determine whether the motion court's findings of fact and conclusions of law were clearly erroneous. Weeks v. State, 140 S.W.3d 39, 44 (Mo. banc 2004). The motion court's findings and conclusions will be deemed clearly erroneous only if, after reviewing the record, this Court is left with the definite and firm impression that a mistake has been made. Id.

On appeal, Martin argues that he was entitled to an evidentiary hearing on his claims. A movant is entitled to an evidentiary hearing on a motion for post-conviction relief only if: (1) he alleges facts, not conclusions, warranting relief; (2) the facts alleged are not refuted by the record; and (3) the matters complained of prejudiced the movant. Simmons v. State, 100 S.W.3d 143, 145 (Mo.App. E.D.2003). No hearing will be held if the record of the case conclusively shows that the movant is entitled to no relief. Rule 24.035(h). If the guilty plea proceedings directly refute that the movant's plea was involuntary, then he is not entitled to an evidentiary hearing. Cain v. State, 859 S.W.2d 715, 717 (Mo.App. E.D.1993). The record in this case directly refuted Martin's claims that the pleas lacked a factual basis and that his plea to armed criminal action was made involuntarily and unknowingly because he was not advised of the maximum penalty for that crime.

A. Factual Basis

"The court shall not enter a judgment upon a plea of guilty unless it determines that there is a factual basis for the plea." Rule 24.02(e). A factual basis exists if the defendant understands the facts presented at the guilty plea proceeding and those facts establish the commission of the charged crime. DeClue v. State, 3 S.W.3d 395, 397-98 (Mo.App. E.D. 1999). Every element of the crime need not be explained to the defendant, as long as he understands the nature of the charge. State v. Taylor, 929 S.W.2d 209, 217 (Mo. banc 1996). Moreover, the factual basis does not have to be established from the defendant's words or by an admission of the facts as recited by the State, as long as the basis exists on the record as a whole. See id.; see also State v. Morton, 971 S.W.2d 335, 340 (Mo.App. E.D.1998). "If the plea of guilty is voluntarily and understandingly made and unequivocal as to the factual requisites necessary to establish each element of an offense, the plea itself forms a factual basis for the guilty plea." State v. Shafer, 969 S.W.2d 719, 734 (Mo. banc 1998). A factual basis is established where the information or indictment clearly charges the defendant with all the elements of the crime, the nature of the charge is explained to the defendant and the defendant admits guilt. Bailey v. State, ED 84855, ___ S.W.3d ___, ___, 2005 WL 1802356, at *3 (Mo. App.E.D. August 2, 2005); Ivy v. State, 81 S.W.3d 199, 202 (Mo.App. W.D.2002).

In this case, the indictment charged Martin with all the required elements of first-degree robbery and armed criminal action. Under section 569.020 RSMo 2000,2 a person commits robbery in the first degree when he "forcibly steals property and in the course thereof he, or another participant in the crime, . . . [d]isplays or threatens the use of what appears to be a deadly weapon or dangerous instrument." "Forcibly steals" is defined as using or threatening the immediate use of physical force on another to prevent resistance to the taking of property or retention of stolen property or to compel another to give the property over. Section 569.010(1). Any person who commits a felony, including first-degree robbery, "by, with, or through the use, assistance, or aid of a dangerous instrument or deadly weapon is also guilty of the crime of armed criminal action." Section 571.015.1.

Martin argues that because the State did not mention that he threatened the immediate use of physical force, this was not forcible stealing and there is no factual basis for the robbery charge. He also contends that there was no factual basis for either charge because he admitted only to taking the knife from the victim, not to using the knife to obtain the victim's property. These arguments are directly refuted by the record. Martin expressly agreed with the trial court that he took the knife from the victim and then took something else from the victim after that. Moreover, the State asserted that Martin placed the knife near the victim's throat.

That Martin only agreed with "most" of the State's recitation of the facts is irrelevant. See Taylor, 929 S.W.2d at 217; see also Morton, 971 S.W.2d at 340. In any case, it became obvious upon the court's further questioning that the part of the State's factual recitation that Martin disagreed with was the claim that Martin took the knife out of the victim's pocket. Rather, Martin clarified, the victim took the knife out of his own pocket, and then Martin took it from him. Martin's conduct constituted forcible stealing, during which he displayed a knife.

Martin also argues that although the armed criminal action statute refers to the use of a "dangerous instrument" or...

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    ...blade to commit the robbery was sufficient evidence from which the jury could find that forcible stealing had occurred. Martin v. State, 187 S.W.3d 335, 340 (Mo.App.2006) (defendant's act of placing knife near victim's throat and taking his property constituted forcible stealing). Victim's ......
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