Milligan v. State, WD

• Decision Date: 25 April 1989
• Docket Number: No. WD,WD
• Parties: Robin MILLIGAN, Appellant, v. STATE of Missouri, Respondent. 40789.
• Court: Missouri Court of Appeals

Page 736

772 S.W.2d 736

Robin MILLIGAN, Appellant, v. STATE of Missouri, Respondent.

No. WD 40789.

Missouri Court of Appeals,

Western District.

April 25, 1989.

Motion For Rehearing and/or Transfer to Supreme Court

Denied May 30, 1989.

Application to Transfer Denied Aug. 1, 1989.

Fred Duchardt, Public Defender, Liberty, for appellant.

William L. Webster, Atty. Gen., William J. Surft, Asst. Atty. Gen., Kansas City, for respondent.

Before BERREY, P.J., MANFORD and GAITAN, JJ.

BERREY, Judge.

Robin Milligan appeals the denial of his Rule 27.26 motion for post-conviction relief after an evidentiary hearing. Movant argues that the trial court erred in overruling his Rule 27.26 motion because he did not fully understand his right to a jury trial, he relied upon certain promises made to him by counsel which did not come to fruition, and because the plea court accepted movant's plea of guilty without inquiring and ascertaining facts about the factual basis for movant's plea. The judgment of the motion court is affirmed.

On March 22, 1982, movant pled guilty to a charge of first degree robbery. Movant's plea was taken as a result of a plea agreement between the parties wherein "the State has agreed to dismiss the robbery count and all charges under CR81-1611 and dismiss Counts 2, 3, and 4 of CR81-1354." Essentially, this reduced the charges filed against movant to one charge of first degree robbery. It must also be noted that each count of the information charged that a participant in the robbery was armed with deadly weapons. In exchange for the dismissal of the other charges, the movant pled guilty to Count I of CR81-1354. The prosecutor stated, "The State will recommend sixteen year sentence to run consecutive to a five years MDC the defendant received under CR78-0929 which he's in violation in this robbery case of that previous burglary, so it would be sixteen and five consecutive...."

Sentencing on the robbery charge in Count I of CR81-1354 occurred on June 28, 1982. As agreed, movant was sentenced to sixteen years on Count I to run consecutively with the five years which had been imposed in CR78-0929.

Movant's original Rule 27.26 petition was filed pro se on November 28, 1983. He alleged that he was denied effective assistance of counsel because "his counsel used Trickery and Deceit to get him to plead guilty." He further alleged that he had been denied equal protection and due process because the trial judge did not give him an opportunity to present information about his case to the court. Through counsel, on November 10, 1987, an amended motion was filed. Movant alleged that his attorney did not explain what "consecutive" meant as opposed to "concurrent" in regard to sentencing and that he would only have to spend five years in prison before becoming eligible for parole.

An evidentiary hearing was held on December 18, 1987. Movant and Brian Franklin, movant's co-defendant in connection with the underlying charges, testified in support of movant. Joseph Locascio, movant's trial counsel, testified on behalf of respondent. On January 6, 1988, the motion court entered findings of fact and conclusions of law. The court found that movant "knowingly and voluntarily" entered a guilty plea and that movant's testimony "that he did not understand the meaning of consecutive sentences at the time he entered his plea" was not credible. The court also found that a factual basis existed for the plea. Movant appeals.

Appellate review of the denial of a motion for post-conviction relief is limited to a determination of whether the findings, conclusions and judgment of the court hearing the motion are clearly erroneous. Bailey v. State, 738 S.W.2d 577, 578 (Mo.App.1987). An appellate court will find the findings and conclusions of the hearing court clearly erroneous only if left with a definite and firm impression that a mistake has been made. Nave v. State, 757 S.W.2d 249, 251 (Mo.App.1988).

There are two parts to the test for ineffective assistance of counsel. In order to prevail on his claim, movant must show: (1) that performance of counsel was lacking in the care and skill of a reasonably competent attorney acting in similar circumstances; and (2) that as a result movant was prejudiced by the alleged ineffectiveness of counsel. Baker v. State, 670 S.W.2d 597, 598 (Mo.App.1984).

Movant's first complaint is that the trial court erred in overruling his petition as movant was denied effective assistance of counsel in that movant entered his plea relying on certain promises made by and through his trial counsel and did not fully understand his rights to a jury trial. Movant claims that trial counsel did not bring to fruition what was promised and movant was thereby prejudiced. Movant claims that he was promised concurrent sentences but received consecutive sentences and that he was also promised that he would be eligible for parole after serving five years.

The motion judge found this contention not credible. The credibility of witnesses is to be determined by the motion court and it may reject testimony even when no contrary evidence appears. Richardson v. State, 719 S.W.2d 912, 915 (Mo.App.1986). The trial court's determination is entitled to considerable deference. Pool v. State, 670 S.W.2d 210, 211-12 (Mo.App.1984).

At the hearing on the guilty plea the prosecutor clearly stated that the recommended sixteen year sentence was to be consecutive. Movant's plea counsel, Mr. Locascio, reiterated the prosecutor's explanation of the plea stating that, "the State has entered into an agreement with defendant that they will recommend sixteen--no more than sixteen years to run consecutive to the five years that the defendant most likely will receive in CR78-0929." The judge pronounced sentence accordingly. Movant presents no real reason why the motion court's findings on this point should be...