McDaris v. State
| Decision Date | 18 December 1992 |
| Docket Number | No. 74866,74866 |
| Citation | 843 S.W.2d 369 |
| Parties | Everette J. McDARIS, Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Supreme Court |
Melinda K. Pendergraph, Columbia, for movant-appellant.
William L. Webster, Atty. Gen., Joseph P. Murray, Asst. Atty. Gen., Jefferson City, for respondent.
After pleading guilty to six counts of selling amphetamines, Everette Junior McDaris filed a pro se motion to vacate the convictions. Rule 24.035. The circuit court appointed counsel, who filed an amended motion late. The State moved to dismiss both motions. The circuit court dismissed the amended motion, and denied the pro se motion without an evidentiary hearing.
On appeal, McDaris raises three points: first, whether the hearing on the motion to dismiss complied with the dictates of Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991), and Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991); second, whether the two allegedly invalid 1960 offenses can support a Class X offender enhancement under § 558.019 RSMo Supp.1989; third, whether a fact hearing was required on four other points raised in the pro se motion. After opinion by the Court of Appeals, Southern District, this Court granted transfer. Rules 30.27 and 83.03. Affirmed in part and reversed in part, the case is remanded for further proceedings in accordance with this opinion.
On February 21, 1991, McDaris moved to vacate his 1991 convictions under Rule 24.035, alleging 10 grounds:
ineffective assistance by first defense counsel (one); various forms of vindictive behavior by the prosecution (five); various reasons why one or more of the convictions were unconstitutional (two); enhancement provisions improperly included in amended information as punishment for seeking a jury trial (one); some prior convictions used for enhancement were invalid (one).
On April 25, 1991--62 days after appointment--counsel filed an amended motion. Besides incorporating all the pro se motion, the amended motion raised the six additional grounds discussed in Part B below.
On April 26, 1991, the State moved to dismiss both motions. The court asked motion counsel the reason for the late filing of the amended motion. Counsel responded: "There's no question we've had some problems getting the amended motion back from the penitentiary and filing it, but we filed it as soon as we could, as soon as we received it in the mail from Mr. McDaris." Based solely on this statement, the court found that the late filing was not due to abandonment by motion counsel, but rather due to the failure of McDaris to return the amended motion before April 21, 1991. As for the claims in the two motions, the court found them "conclusory," refuted by the record, not cognizable in a Rule 24.035 motion, or insufficient to state a claim. Thus, the motion court denied McDaris's pro se motion.
McDaris alleges that motion counsel abandoned him by failing to file the amended motion on time, or at least that the trial court did not adequately investigate abandonment. To the contrary, the State alleges, and the motion court found, no abandonment. 1
This case can be resolved by examining whether the movant was prejudiced by the late filing. Pollard v. State, 807 S.W.2d 498, 502 (Mo. banc 1991). In this case, the amended motion did not raise anything beyond the pro se motion, except for claims clearly refuted by the record. No hearing is required where the record conclusively shows that movant is not entitled to relief. Rules 24.035(g) and 29.15(g). The record in this case clearly indicates that McDaris was not prejudiced by the failure to file the amended motion on time. Cf. Balow v. State, 796 S.W.2d 643, 645-46 (Mo.App.1990) ().
To illustrate, McDaris first claims in the amended motion that counsel was ineffective by failing to explain the fact that he would be sentenced as a Class X offender, and the effect of such a classification. Even if true, any prejudice was preempted by the circuit court's meticulous explanation of his sentence before accepting his plea, and the circuit court's willingness to proceed to trial if McDaris changed his mind any time during the plea hearing. Thus, the record clearly refutes McDaris's claim of prejudice--that he would not have pled guilty if his counsel had properly explained his sentence. See Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). The associated claim of ineffectiveness in failing to contest his classification as a Class X offender was also raised and preserved in the pro se motion, and thus no prejudice comes from the alleged abandonment.
Second, McDaris claims in the amended motion that plea counsel "coerced and tricked" him by falsely promising that his wife would receive only 120-days-incarceration. To the contrary, McDaris stated on the plea record that no promises other than those in the plea agreement were made. Additionally, this is corroborated by his statement in the plea hearing that he was not coerced into pleading guilty.
Third, McDaris claims in the amended motion that plea counsel represented, on the date of the plea, that he was unprepared for trial. Numerous times during the plea, the trial court asked McDaris whether he was satisfied with plea counsel, whether plea counsel had done all that McDaris had asked, and whether McDaris needed more time to discuss his case with counsel. The record clearly refutes subsequent allegations that counsel was unprepared on the date of the plea hearing.
Fourth, McDaris claims in the amended motion that counsel was ineffective for failing to seek reduced bond. The record shows that counsel requested bond reduction on April 13, 1990, and at several later times. Thus, the record refutes this point.
McDaris also claims that he pled guilty to get proper medical treatment--allegedly unavailable in the county jail. However, the record clearly indicates that he was receiving treatment at the time of the plea hearing, and further shows that, but for the plea, trial would have begun then--as the plea judge noted: "a jury [is] waiting now in the rotunda ready to try this lawsuit." Pleading guilty had no effect on his medical treatment.
Fifth, McDaris claims in the amended motion that counsels were ineffective for failing to file several motions. With respect to the first counsel, Dean Price, these allegations appear in the pro se motion and are discussed in Part III.B.
With respect to Clifford Saulter, the plea counsel, the allegations state only conclusions--that he "failed to consult with and interview five witnesses" without naming them or describing any basis that they would know relevant and exculpatory information, and that Saulter "failed to file motions" without alleging any facts supporting those motions. Thus, McDaris has not alleged facts showing Saulter was ineffective with respect to these witnesses and motions. See Balow, 796 S.W.2d at 645 (). In addition, these charges are clearly refuted by McDaris's affirmance during the plea hearing that Saulter did all that McDaris requested.
Sixth, the amended motion attacks the constitutionality of § 195.214 RSMo Supp.1989--an issue clearly raised in the pro se motion and discussed in Part III.D. below.
In the tenth claim of his pro se motion, McDaris alleges that two 1960 convictions should not increase his classification to Class X offender. § 558.019 RSMo Supp.1989. Based on the pro se motion, McDaris makes two arguments on appeal: 1) § 558.019.6 limits "enhancement offenses" to those committed within 25 years of the current offense; and 2) the two 1960 convictions are not valid convictions, and counsel was ineffective for allowing them to enhance his sentence.
If 25 years have passed since a conviction (or any release from confinement, whichever is later), "then the defendant shall not be classified as a prior offender for purposes of this section." § 558.019.6 RSMo Supp.1989. McDaris contends that this statement mentioning "prior offender" means "persistent offender" and "Class X offender" as well. McDaris cites State v. Lucas, 809 S.W.2d 54, 57-58 (Mo.App.1991), which held that "prior offender" in § 558.019.6 included all three levels of enhancement under § 558.019.
The State contends that "prior offender" merely means prior offender as defined in § 558.019.4(1), and not the other two enhancement classes. The State cites State v. Miller, 821 S.W.2d 553, 556-57 (Mo.App.1991). As McDaris notes, Miller discusses only whether "prior offender" in § 558.019.6 refers to other enhancement statutes, in particular § 558.016 RSMo 1986.
By the plain language of the statute, Lucas was wrongly decided. The terms "prior offender," "persistent offender," and "class X offender" are terms of art within § 558.019 and have only the meaning given them by that statute. When the General Assembly used "prior offender for the purposes of this statute" in § 558.019.6, the General Assembly meant "prior offender" as defined in § 558.019.4(1).
The present case legitimates this distinction. The record clearly shows that McDaris committed offenses approximately once each decade--in 1960, in 1969, in 1982, and the current offenses in 1990. Section 558.019.6 excuses an offender who committed one and only one offense previously, and then maintained a long period of rehabilitation.
Though over 25 years old, the 1960 convictions--if valid--are one of the three offenses that make McDaris a Class X offender. § 558.019.4(3). To the extent inconsistent with this opinion, State v. Lucas, 809 S.W.2d 54 (Mo.App.1991), is overruled.
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