Mims v. State

• Docket Number: WD 86083
• Decision Date: 02 April 2024
• Citation: 689 S.W.3d 171
• Parties: Leonard R. MIMS, Respondent, v. STATE of Missouri, Appellant.
• Court: Missouri Court of Appeals

689 S.W.3d 171

Leonard R. MIMS, Respondent,

v.STATE of Missouri, Appellant.

WD 86083

Missouri Court of Appeals, Western District.

OPINION FILED: APRIL 2, 2024

Appeal from the Circuit Court of Jackson County, Missouri, The Honorable Patrick William Campbell, Judge

Matthew Travers Merryman, Kansas City, MO, for respondent.

Shandee Beth Porter, Kansas City, MO, Richard Anthony Starnes, Jefferson City, MO, for appellant.

Before Division Four: Gary D. Witt, Chief Judge, Presiding, Alok Ahuja, Judge and Edward R. Ardini, Jr., Judge

Gary D. Witt, Judge

The State of Missouri("State") appeals the judgment of the Circuit Court of Jackson County, Missouri("motion court"), granting, after an evidentiary hearing, Leonard Mims’s ("Mims")amended motion for post-conviction relief pursuant to Rule 24.035.On appeal, the State argues that the motion court: (1) clearly erred in granting post-conviction relief because Mims’s eight-year sentence was within the range of punishment for his offense; (2) clearly erred in granting post-conviction relief because the plea court did not misadvise Mims of his parole eligibility in that the offense for which Mims pled guilty does not require that Mims serve eighty-five percent of his sentence before he is eligible for parole; and (3) clearly erred in granting post-conviction relief on the ground that plea counsel("Counsel") was ineffective because Counsel did not misadvise Mims that the offense for which he pled guilty did not require him to serve eighty-five percent of his sentence.We reverse and remand for Mims’s conviction and sentence to be reinstated.

Factual and Procedural Background

On December 6, 2019, the State charged Mims with Statutory Sodomy in the first degree, section 566.062,¹ for having deviate sexual intercourse with a child less than twelve years old.After plea negotiations, and after a jury had been selected in his criminal trial, the State filed an amended information in lieu of indictment charging Mims with Statutory Sodomy in the first degree, section 566.062, for having deviate sexual intercourse with a child less than fourteen years old.Mims entered an Alford plea of guilty to the amended charge.At the plea hearing, Mims testified that he was withdrawing his previous plea of not guilty and entering "an Alford plea to the amended charge of statutory sodomy in the first degree of a child under the age of 14."

At the plea hearing, the prosecutor stated that the evidence at trial would be that, on October 17, 2019, Mims was outside with Victim, who was seven years old.Victim would testify that Mims removed his pants and placed his penis in Victim’s mouth.Victim’s mother came to her back balcony and saw Mims with his pants down and his buttocks exposed and Victim standing in front of him.Victim ran to her mother and moments later told her that Mims put his penis in her mouth.Mims’s DNA was found around Victim’s mouth, and Victim’s DNA was found on a swab taken from Mims’s penis following his arrest.

The plea court informed Mims and he understood that his Alford plea meant that he would not have a trial and could not challenge the court’s previous rulings.The court informed Mims that the amended charge to which he was pleading guilty had a minimum sentence of five years instead of ten years, and that the amended charge did not require him to serve eighty-five percent of his sentence before being parole eligible as was required by the original charge.Mims also understood that, according to the plea agreement, he would receive a sentence of eight years and the Department of Corrections("DOC"), not the Judge or the prosecutor, would decide how much of the eight years he had to serve.The plea court accepted Mims’s plea and sentenced him consistent with the plea agreement to eight years in the DOC.

On July 20, 2021, Mims filed a pro se motion to vacate his conviction under Rule 24.035.Appointed counsel filed an amended motion alleging that the plea court erred in accepting Mims’s guilty plea and failing to advise him that he would face a minimum sentence of ten years, of which he was required to serve eighty-five percent.Mims also alleged that his plea counsel("Counsel") was ineffective for failing to advise him that he would be required to serve eighty-five percent of his sentence before he would be eligible for parole.

At the motion hearing, Counsel testified that she advised Mims that, under his original charge, he would have faced a minimum sentence of ten years, and he would have to serve a minimum of eighty-five percent of whatever sentence he re- ceived.Counsel testified that, pursuant to the plea agreement reached after voir dm, he would only be charged with sodomy of a child under fourteen years of age, not under twelve years of age as he was originally charged, and that the State would agree to a sentence of eight years.Counsel testified that she advised Mims that he would likely have to serve the entire eight years, because he was proceeding under an Alford plea, which did not include an admission of guilt, and he would therefore not be able to participate in the Missouri Sexual Offenders Program ("MOSOP"), and so he would not be given parole regardless of the minimum required for parole eligibility.

Mims testified that Counsel never advised him that he would have to serve his entire sentence if he did not complete MOSOP.Mims testified that Counsel advised him, as the plea court had at his plea hearing, that he would not be required to serve eighty-five percent of his eight-year sentence before being eligible for parole.Mims testified that his DOC "face sheet" showed that he would have to serve eighty-five percent of his sentence.However, right before his motion hearing, the prosecutor had contacted DOC, and DOC had changed the face sheet to reflect a minimum of fifty percent of his sentence to be served before he was eligible for parole.

The motion court stated that the DOC’s alteration of his face sheet served as an acknowledgement from DOC that it had misinterpreted and misapplied the statute.Mims argued that, because Victim was, in fact, less than twelve years old, it did not matter that the charge read that Victim was under fourteen years old; he would still be subject to the sentence enhancement provisions of sections 558.019.3and566.062.2(1), which provide for a minimum sentence of ten years and require service of eighty-five percent of the sentence received before parole eligibility when the victim is under the age of twelve.Mims alleged that because he was not properly advised of the sentence and requirements heshould have received, he should be allowed to withdraw his guilty plea and proceed to trial.The motion court, affirmatively stating that it believed this particular legal issue would benefit from appellate guidance, granted Mims’s motion; the State appeals.

Standard of Review

[1] Appellate review of a motion court’s ruling on a motion for post-conviction relief is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous.SeeRule 24.035(k)."The [motion]court’s findings and conclusions are clearly erroneous only if, after a review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made."State v. Ervin, 835 S.W.2d 905, 928(Mo. banc 1992).

Analysis

Court’s issuance of eight-year sentence:

[2–4]The State’s first point on appeal is that the motion court clearly erred in granting post-conviction relief in that Mims’s eight-year sentence was within the range of punishment for the offense with which he was charged in the amended information and to which he pled guilty.The amended information in lieu of indictment under which Mims entered his Alford plea charged Mims with first-degree sodomy by subjecting a child under the age of fourteen to deviate sexual intercourse.Section 566.062.The authorized term of imprisonment for this offense is "life imprisonment or a term of years not less than five years," unless "the victim is less than twelve years of age, in which case the authorized term of imprisonment is life imprisonment or a term of years not less than ten years."Id, The victim’s age is an element of the offense as set forth in the statute, which must be charged and proven.This is also true of subsection 566.062.2(1), which increases the minimum sentence from five years to ten years when the victim is less than twelve years of age.The United States Supreme Court expressly held, in Alleyne v. United States, 570 U.S. 99, 110-12, 133 S.Ct. 2151, 186 L.Ed.2d 314(2013), that facts that increase the prescribed range of penalties to which a criminal defendant is exposed, including an increase of the minimum possible sentence, are elements of the crime, which must be charged and proven.This is because "[d]efining facts that increase a mandatory statutory minimum to be part of the substantive offense enables the defendant to predict the legally applicable penalty from the face of the indictment [or information]."Id. at 113-14, 133 S.Ct. 2151.

"[W]hile most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty."North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162(1970)."An Alford plea allows a defendant to plead guilty to a charged offense and accept criminal penalty even if he or she is unwilling or unable to admit to committing the acts constituting the offense."Brooks v. State, 242 S.W.3d 705, 707 n.2(Mo. banc 2008).

Generally speaking (and as relevant here), the effect of an accepted Alfordplea is the same as that of any other guilty plea: "An Alford plea … stands on equal footing with one in which an accused specifically admits the commission of the particular acts charged."Wilson v. State, 813 S.W.2d 833, 843(Mo. banc 1991)(internal quotation and

...