McClendon v. State

• Decision Date: 30 January 2007
• Docket Number: No. ED 87802.,ED 87802.
• Citation: 247 S.W.3d 549
• Parties: Donald C. McCLENDON, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

247 S.W.3d 549

Donald C. McCLENDON, Appellant, v. STATE of Missouri, Respondent.

No. ED 87802.

Missouri Court of Appeals, Eastern District, Division One.

January 30, 2007.

Lisa M. Stroup, St. Louis, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Stephanie Morrell, Jefferson City, MO, for respondent.

NANNETTE A. BAKER, Judge.

Introduction

Donald McClendon ("Movant") appeals from the Circuit Court of the City of St. Louis denying his Rule 29.15 motion for post conviction relief without an evidentiary hearing. We affirm in part and remand in part.

Factual and Procedural Background

On May 30, 2003, officers responded to a call in Florissant, Missouri. The officers were told that someone matching Movant's description was attempting to steal a car. The officers discovered Movant in a car in which the rear window had been broken, the interior ransacked and the steering column broken in a manner consistent with an attempt to start the vehicle without a key. Movant ran but officers apprehended him fifty yards from the car, with items from the car in his pockets. Movant was charged with the class D felony of attempted stealing of a motor vehicle in violation of Section 564.011.¹

Movant was charged as a prior offender pursuant to Section 588.016. At the time Movant was charged, the maximum punishment for a prior offender with a class D felony was ten years. On June 27, 2003, legislation reducing the sentencing enhancement under Section 588.016 took effect. Thereafter, the maximum punishment for a class D felony was reduced to "any sentence authorized for a class C felony." The maximum punishment for a class C felony is seven years.

Before trial, Movant's attorney mailed Movant a letter in which he advised Movant that he could receive a maximum sentence of seven years if he went to trial. Movant alleges that the State offered Movant a plea agreement with a maximum recommended sentence of seven years, which Movant rejected because he believed it was the maximum sentence. Movant alleges that he was first advised that the maximum sentence was ten years on the day of trial. Before trial, Movant attempted to enter a blind guilty plea. The court rejected the plea and the case proceeded to trial.

After a jury trial, Movant was found guilty and sentenced as a prior and persistent offender to nine years. Movant appealed and this court affirmed the sentence in State v. McClendon, 157 S.W.3d 343 (Mo.App. E.D.2005). Movant filed a pro se motion for post conviction relief and counsel filed an amended motion. The motion was denied without an evidentiary hearing on February 9, 2006. Movant appealed, alleging that the motion court erred in denying his claims without an evidentiary hearing.

Standard of Review

Our review of the motion court's denial of post-conviction relief is limited to a determination of whether the motion court clearly erred in finding that counsel was not ineffective. Helmig v. State, 42 S.W.3d 658, 665-66 (Mo.App. E.D.2001). We will find that the motion court clearly erred if, after a review of the entire record, we are left with the definite and firm impression that a mistake has been made. Moss v. State, 10 S.W.3d 508, 511 (Mo. banc.2000). The standard of review of the motion court's denial of relief is limited to a determination of whether the court's findings and conclusions are clearly erroneous. Dorsey v. State, 115 S.W.3d 842, 845 (Mo. banc 2003).

Discussion

In his first point, Movant argues that the motion court clearly erred in denying his motion without an evidentiary hearing when trial counsel misinformed Movant as to the maximum sentence he could receive for the crime. More specifically, Movant alleges that trial counsel advised him that the maximum sentence for his crime was seven years' imprisonment, when it was actually ten years. Movant claims that because he thought the maximum sentence was seven years he rejected the State's offer to plead guilty and receive seven years and went to trial, where he received a sentence of nine years. Movant alleges that after the jury was selected, trial counsel informed him for the first time that the maximum sentence was ten years, rather than seven years. Movant claims he immediately asked to enter a blind guilty plea, but the court refused to accept the plea and went forward with the trial, eventually sentencing Movant to nine years' imprisonment. Movant argues that the motion court erred in concluding that he had not received ineffective assistance of counsel and that he was not prejudiced. Respondent argues that Movant was not prejudiced because the trial court is not required to accept a guilty plea and because appellant's assertions have "nothing to do with the fairness of his trial."

To plead and prove ineffective assistance of counsel, the post-conviction movant must show that counsel's performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney, and that the defendant was thereby prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We need not address both components of the inquiry if the movant makes an insufficient showing on one. Id. at 697, 104 S.Ct. 2052. A motion court is not required to grant an evidentiary hearing on a claim for post-conviction relief unless: (1) the facts alleged are not refuted by the record; (2) the movant pleads facts that if true would warrant relief; and (3) the matter complained of resulted in prejudice to the movant. Dorsey, 115 S.W.3d at 844-45.

Here, Movant has satisfied all three requirements and should have been granted an evidentiary hearing. As an initial matter, we note that the record does not refute Movant's factual allegations. The legal file contains a letter from Movant's counsel dated September 12, 2003, stating in relevant part: "You are charged as a prior and persistent offender with: Attempt [sic] stealing of a motor vehicle. The minimum and maximum sentence you could receive for this charge is: One (1) day to Seven (7) years." Emphasis in original.

The record also reflects that Movant attempted to enter into a blind plea agreement after the jury was sworn, which was rejected by the court. During sentencing Movant stated that he had not wanted to go to trial. When asked why he did not take the State's offer, Movant stated "I mean, it's seven years . . . I believe we could have went down other avenues ..." Thus, Movant's allegation that if he had known the maximum sentence he would have accepted the plea offer rather than going to trial is not refuted by the record. An evidentiary hearing would allow Movant the opportunity to present more evidence regarding his claim that he was misinformed by counsel and would have accepted the State's plea offer had he been properly informed as to the maximum length of the sentence.

Turning to the second requirement, Movant pleaded facts, that, if true, warrant relief. The motion court found that Movant was not entitled to relief because "at the time of trial, the question of the alteration of the range of punishment for prior and persistent offenders was undecided at the time of trial [sic] — as reflected by the memorandum of the Court of Appeals accompanying its summary affirmance of this case." The motion court does not cite to any authority for this conclusion. However, it appears that the court is referring to State v. Johnson, 150 S.W.3d 132 (Mo. App. E.D.2004).

In Johnson, this court reiterated that, under Section 1.160,² when the change of a sentencing structure for an offense occurs, the defendant must be sentenced according to the law in effect at the time of the offense unless a change occurred in the law creating the offense itself. Id. at 138. The court found that the amendment to Section 558.016 would therefore not apply retroactively, as it is not a statute creating offenses, but a statute permitting enhancement of sentences for prior and persistent offenders. See Id.

The motion court's reasoning that the "questionable" retroactivity of Section 558.016 relieved his trial counsel's duty to properly inform him of the possible consequences of trial is fundamentally flawed. First, it was hardly "questionable" that the lessened enhancement of prior and persistent offender sentences would take effect retroactively. The court expressed during sentencing its doubt that the change in sentencing statutes would apply retroactively.³ Furthermore, although Johnson, which addresses the specific statute in question, had not yet been decided, the Supreme Court decision in State ex rel Nixon v. Kelly made clear that Section 1.160 required defendants to be sentenced under the law in effect at the time the offense was committed. 58 S.W.3d 513 (Mo.2001). Indeed, multiple Missouri cases had reiterated this rule before the time Movant was allegedly misinformed by trial counsel. See, e.g., State v. Graham, 13 S.W.3d 290 (Mo.2000); State v. Beers, 926 S.W.2d 215 (Mo.App. E.D.1996); Mannon v. State, 788 S.W.2d 315 (Mo.App. S.D.1990); State v. Russell, 780 S.W.2d 126 (Mo.App. E.D.1989). Thus, trial counsel should have been aware that it was unlikely that Defendant would receive the benefit of retroactive application of the more favorable sentencing statute.

Furthermore, the "questionability" of the law at the time the Movant was sentenced is immaterial. Trial counsel had a duty to inform Movant of the possible consequences he could face at trial. It is counsel's duty to advise a client of the possible consequences he could receive if convicted at trial so that the client may make an informed decision as to whether to accept or reject a plea agreement. Ayres v. State, 93 S.W.3d 827 (Mo.App. E.D.2002). Certainly, sentencing under the laws in effect at the time Movant committed the offense was a possible consequence of which Movant should have been informed, and the motion court erred finding otherwise.

Finally, we examine the motion court's finding "regardless of...