Morales v. State

• Decision Date: 29 April 2003
• Docket Number: No. ED 81803.,ED 81803.
• Citation: 104 S.W.3d 432
• Parties: Louis MORALES, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 432

104 S.W.3d 432

Louis MORALES, Appellant, v. STATE of Missouri, Respondent.

No. ED 81803.

Missouri Court of Appeals, Eastern District, Division Three.

April 29, 2003.

Scott Thompson, Assistant State Public Defender, St. Louis, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Breck K. Burgess, Asst. Atty. Gen., Jefferson City, MO, for respondent.

CLIFFORD H. AHRENS, Judge.

Louis Morales ("movant") appeals from the judgment of the motion court denying his motion for post-conviction relief pursuant to Rule 24.035 on the merits without an evidentiary hearing. In his motion, movant claims that he was denied effective assistance of counsel in that his plea attorney failed to inform him that as a direct and immediate consequence of movant pleading guilty to charges of rape and sodomy, movant would be subject to the Sexually Violent Predator statutes at the conclusion of his sentence, and but for plea counsel's failure to inform him of this, movant would not have pled guilty. Finding no error, we affirm.

On September 17, 2001, movant pleaded guilty to the following felony charges: five counts of statutory rape in the first degree and three counts of statutory sodomy in the first degree. The State entered an order of nolle prosequi on four other counts of sodomy at that time. Movant did not enter into a plea agreement with the State, but rather pleaded to the court. The trial court ascertained that movant was fluent in English as well as Spanish, then advised movant of his constitutional rights and the range of punishment for these charges. Movant expressed his understanding that a guilty plea would waive his right to a jury trial, and his comprehension of the range of punishment for the charges. The trial court also explained that it would determine the sentence, which movant indicated that he understood. The prosecutor stated what the State's evidence would show, and movant agreed that was what he was pleading guilty to, and accepted responsibility. The trial court stated that it would order a report from the probation office prior to sentencing and would take everything into consideration, and that it was not making any promises as to what sentence movant would receive. Movant stated that he understood this, and that it was acceptable to him. The trial court again asked movant if he was pleading guilty with no assurances as to sentencing, to which movant replied "[r]ight." The trial court accepted movant's plea of guilty, with the record reflecting that the court found that the plea had been entered into voluntarily and with an understanding of the nature of the charges.

At the sentencing hearing on November 8, 2001, the trial court indicated that it had received and reviewed the presentencing report, and had discussed it with the attorneys for movant and the State. The trial court had also reviewed the numerous certificates that movant had earned at the County Department of Justice for completion of a number of programs. The trial court sentenced movant to fifteen years of imprisonment on each of the eight charges, all to run concurrently. The trial court advised movant of his post-conviction relief rights. The trial court asked movant if he had had enough time to talk with his counsel about the case by the time of the plea, and if his counsel had answered his questions to his satisfaction, to which movant replied affirmatively. The trial court also asked if movant's counsel had prepared and investigated the case to movant's satisfaction, to which movant indicated that he was satisfied with his attorney's conduct. Movant agreed that his plea of guilty had been presented to the court as a "blind plea," a plea of guilty made without a plea bargain, in which the trial court would determine the sentence, and that the court had told him what the range of the sentence would be. Upon further questioning by the court, movant indicated that the court had not promised him any particular sentence, and that he had no complaints or criticism about the representation that he received from his attorney.

Movant timely filed a pro se motion for post-conviction relief pursuant to Rule 24.035 on January, 2002, alleging ineffective assistance of counsel and that his sentence was too long and too harsh. Counsel was appointed for movant, and his attorney filed an amended motion for postconviction relief on April 29, 2002. The motion court filed findings of fact and conclusions of law on August 12, 2002, in which it denied movant relief without an evidentiary hearing. Movant now appeals.

Appellate review of the court's denial of a motion for post-conviction relief is not de novo. Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991). The motion court's findings of fact and conclusions of law are presumptively correct. Id. This Court's review is limited to the determination of whether or not the motion court's findings and conclusions are clearly erroneous. Rule 24.035(k); State v. Taylor, 929 S.W.2d 209, 224 (Mo. banc 1996), cert. denied, 519 U.S. 1152, 117 S.Ct. 1088, 137 L.E d.2d 222 (1997). We will find the motion court's findings and conclusions clearly erroneous only if, after a review of the entire record, we are left with the firm and definite impression that a mistake has been made. Taylor, 929 S.W.2d at 224. The movant has the burden of proving, by a preponderance of the evidence, that the motion court clearly erred. Rule 24.035(k); Buckner v. State, 35 S.W.3d 417, 420 (Mo.App.2000). An evidentiary hearing is not required for a post-conviction motion for relief if the motion court determines that the motion and the files and records of the case conclusively show that movant is not entitled to relief. Rule 24.035(h); Brown v. State, 67 S.W.3d 708, 709 (Mo.App.2002). To be entitled to an evidentiary hearing, movant must: (1) allege facts, not conclusions, which merit relief; (2) the facts alleged must raise matters not refuted by the files and records in the case; and (3) the matters must have resulted in prejudice to movant. Morrow v. State, 21 S.W.3d 819, 822-23 (Mo. banc 2000); Hall v. State, 16 S.W.3d 582, 585 (Mo. banc 2000).

In his sole point on appeal, movant contends that the motion court erred in denying his motion without an evidentiary hearing because he alleged facts that were not refuted by the record, that if proven would entitle him to relief. Movant alleges that he was denied effective assistance of counsel in that his plea attorney failed to inform him that as a direct and immediate consequence of his decision to enter a guilty plea, movant would be subject to the Sexually Violent Predator laws at the end of his sentence. Movant alleges that but for the ineffective assistance of his plea counsel, he would not have pled guilty, but rather would have proceeded to trial.

In order to show that counsel's assistance was so defective as to require reversal, movant must show that counsel's performance was deficient and that this deficiency prejudiced the defense. State v. Nunley, 980 S.W.2d 290, 292 (Mo. banc 1998). To show prejudice where movant entered a plea of guilty, movant must show that but for counsel's errors, movant would not have pled guilty and would instead have insisted on proceeding to trial. Id. Following a guilty plea, the effectiveness of counsel is relevant only to the extent that it affected whether or not the plea was made voluntarily and knowingly. Cream v. State, 90 S.W.3d 498, 501 (Mo. App.2002).

Counsel has a basic duty to discuss with a defendant the possible consequences involved in the case, including the range of possible punishment. Brown, 67 S.W.3d at 710. However, counsel only has an obligation to inform a defendant of the direct consequences of a guilty plea and has no duty to inform a defendant of the collateral consequences of pleading guilty. Id. Therefore, the failure of counsel to advise a defendant regarding collateral consequences of a guilty plea cannot rise to the level of constitutionally ineffective assistance of counsel. Id.

At issue here is whether the civil commitment provisions of sections 632.480 to 632.513 RSMo 2000 ("Sexually Violent Predators laws") are a direct or collateral consequence of movant's guilty plea.¹

Rule 24.02(b) sets out the "Advice to Defendant" that the court must give prior to accepting a plea of guilty from a defendant. This rule states:

(b) Advice to Defendant. Except as provided by Rule 31.03, before accepting a plea of guilty, the court must address the defendant personally in open court, and inform him of, and determine that he understands, the following:

1. The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law; and

2. If the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceedings against him and, if necessary, one will be appointed to represent him; and

3. That he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to be tried by a jury and at that trial he has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled...