Moore v. State Of Mo.
| Decision Date | 06 July 2010 |
| Docket Number | No. ED93295,ED93295 |
| Parties | ANDRE MOORE, Movant/Appellant, v. STATE OF MISSOURI, Respondent/Respondent. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of the City of St. Louis
Honorable Timothy J. Wilson
Movant, Andre Moore, appeals from the judgment denying on the merits his Rule 24.035 motion for post-conviction relief without an evidentiary hearing after he pleaded guilty to possession of a controlled substance, in violation of section 195.202 RSMo (2000); felony resisting arrest, in violation of section 575.150 RSMo (Cum. Supp. 2005); and felony driving while revoked, in violation of section 302.321 RSMo (Cum. Supp. 2005). We affirm the judgment of the motion court. However, we remand to the motion court to order entry of a nunc pro tunc order to conform the written judgment in the underlying case to the oral disposition at sentencing.
Movant pleaded guilty to charges in two separate actions. In Case No. 22041-2535, the indictment charged movant with possession of a controlled substance (cocaine base) on June 22, 2004. In Case No. 22061-1353, the indictment charged movant with the class D felony of resisting arrest, and the class D felony of driving while revoked, both on April 26, 2001. After accepting these pleas, the court sentenced movant to seven years imprisonment on the possessionof a controlled substance conviction in Case No. 22041-2535, and seven years imprisonment on the resisting arrest conviction and four years imprisonment on the felony driving while revoked conviction in Case No. 22061-1353, all sentences to be served concurrently.
Thereafter, movant timely filed a pro se Rule 24.035 motion for post-conviction relief, and appointed counsel filed an amended motion and request for an evidentiary hearing. The motion court denied the request for an evidentiary hearing and entered findings of fact, conclusions of law, and an order denying movant's motion for post-conviction relief. Movant appeals from this judgment.
Our review of the motion court's action on a motion filed under Rule 24.035 is limited to a determination of whether the findings of fact and conclusions of law are clearly erroneous. Rule 24.035(k); Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009). The findings and conclusions are clearly erroneous only if after reviewing the entire record, we are left with a definite and firm impression that a mistake has been made. Roberts, 276 S.W.3d at 835.
In order to receive an evidentiary hearing on a post-conviction motion, a "movant must meet three requirements: (1) the motion must allege facts, not conclusions, warranting relief; (2) the facts alleged must raise matters not conclusively refuted by the files and records in the case; and (3) the matters complained of must have resulted in prejudice to the movant." Peiffer v. State, 88 S.W.3d 439, 445 (Mo. banc 2002). A hearing is not required if the motion, files, and records of the case conclusively show that the movant is not entitled to relief. Rule 24.035(h).
Claims of error that first appear in the argument portion of a brief but are not included in the point relied on are not preserved for review. Stevenson v. State, 299 S.W.3d 762, 765 (Mo.App. 2009).
For his first point, movant asserts that the motion court erred when it denied relief without an evidentiary hearing on his claim that the state failed to adequately establish movant's status as a prior and persistent offender at the change of plea hearing. We disagree.
At the change of plea hearing, the state listed the following prior convictions in support of a finding that movant was a prior and persistent felony offender:
In his motion, movant alleged that the court lacked "jurisdiction" to sentence him to seven years for resisting arrest because the state failed to prove that movant's prior convictions used to enhance movant's sentence as a prior and persistent offender occurred at different times. In denying this claim, the motion court concluded that movant's claim was without merit because the court could infer that movant's prior convictions were committed at different times.
Section 558.016.3 RSMo (Cum. Supp. 2005) defines a persistent offender as "one who has pleaded guilty to or has been found guilty of two or more felonies committed at differenttimes." Section 558.021.1 RSMo (2000) requires the court to find a defendant to be a persistent offender if: (1) the indictment or information pleads all essential facts warranting a finding that the defendant is a persistent offender; (2) evidence is introduced that establishes sufficient facts pleaded to warrant a finding beyond a reasonable doubt that the defendant is a persistent offender; and (3) the court makes findings of fact that warrant a finding beyond a reasonable doubt by the court that the defendant is a persistent offender.
When it may be clearly inferred from the dates of the convictions that the prior felonies were committed at different times, the defendant is required to come forward with evidence that the crimes were, in fact, committed at the same time. State v. Thornton, 651 S.W.2d 164, 168 (Mo.App. 1983); State v. Cullen, 646 S.W.2d 850, 854 (Mo.App. 1982); State v. Leake, 608 S.W.2d 564, 565-66 (Mo.App. 1980). If a defendant does not do so, the state is not required to offer additional evidence that the felonies were committed at different times. See Cullen, 646 S.W.2d at 854; Leake, 608 S.W.2d at 565-66.
Here, the state's evidence showed that movant was convicted of prior felonies in 1998, 1996, and 1995, and movant acknowledged that he had been convicted of these crimes. These dates allow a clear inference that two or more of movant's prior felonies were committed at different times. See, e.g., Thornton, 651 S.W.2d at 168; Cullen, 646 S.W.2d at 854; Leake, 608 S.W.2d at 565-66. Movant did not come forward with any evidence to refute that inference. Accordingly, the evidence sufficiently established that two or more of movant's prior felonies were committed at different times.
Movant's reliance on Matthews v. State, 123 S.W.3d 307 (Mo.App. 2003), is misplaced. In that case, unlike this one, the state failed to present any evidence of the movant's prior felony convictions.
The record in this case conclusively refuted movant's claim that the state failed to adequately establish his status as a prior and persistent offender at the change of plea hearing. The motion court did not err in denying relief without an evidentiary hearing on this claim. Point one is denied.
For his second point, movant asserts the motion court erred when it denied relief without an evidentiary hearing on his claim that the state failed to plead and prove (1) that movant was represented by counsel or waived his right to counsel in his prior driving while revoked convictions, and (2) that movant served ten days on each of his prior driving while revoked convictions. He contends that the state was required to plead and prove these facts in order to charge and sentence him for felony driving while revoked. We disagree.
At the change of plea hearing, the state listed movant's prior convictions for driving while revoked:
[PROSECUTOR]: And furthermore, on March 14th, 2005, the defendant was convicted of driving while revoked in the 22nd Judicial Circuit, City of St. Louis, and for events which occurred January 24th, 2005; and again on March 10th, 2005, the defendant was convicted of driving while license revoked in this circuit for events which occurred on May 25th, 2004; again, on November 27th, 2001, the defendant was convicted of driving while license revoked in this circuit for events which occurred on September 14th, 1998, and sentenced to serve sentence of ten days or more. And furthermore, the defendant is a prior persistent offender as already stated in the previous case that he plead guilty to.
In his amended motion, movant alleged that the court lacked "jurisdiction" to sentence him for the class D felony of driving while revoked because the state failed to prove that movant was represented by counsel or waived his right to counsel in the prior cases and failed to prove that movant served ten days on each of the prior driving while revoked convictions, which, he contends, is required by section 302.321.2 RSMo (Cum. Supp. 2005). The motion courtconcluded that movant's claim had no merit because section 302.321.2 RSMo (Cum. Supp. 2005) did not require that movant have served ten days on each of his prior convictions or that he was represented by counsel in each of those cases in order to be charged with felony driving while revoked. We agree.
Section 302.321.2 RSMo (Cum. Supp. 2005) specifies when a driving while revoked conviction is enhanced to a felony:
2. Any person convicted of driving while revoked is guilty of a class A misdemeanor. Any person with no prior alcohol-related enforcement contacts as defined in section 302.525, convicted a fourth or subsequent time of driving while revoked or a county...
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