Nichols v. State
| Decision Date | 24 September 2013 |
| Docket Number | No. ED 99171.,ED 99171. |
| Parties | Alfonzo NICHOLS, Movant/Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
OPINION TEXT STARTS HERE
Timothy Forneris, St. Louis, MO, for Appellant.
Dora Fichter, Jefferson City, MO, for Respondent.
Alfonso Nichols (“Movant”) appeals from the judgment of the motion court denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. On appeal, Movant contends the motion court clearly erred in denying his motion for post-conviction relief without an evidentiary hearing because: (1) the sentencing court abused its discretion when it denied his motion to withdraw his guilty pleas before sentencing; (2) his counsel was ineffective for misleading him into believing he was going to receive a shorter sentence and; (3) his counsel was ineffective for coercing him into pleading guilty. We affirm.
The State charged Movant with three counts of robbery in the first degree, in violation of section 569.020, RSMo (2000); 1 three counts of armed criminal action, in violation of section 571.015; three counts of kidnapping, in violation of section 565.110, RSMo (Cum.Supp.2006); two counts of attempted kidnapping, in violation of section 564.011; one count of robbery in the second degree and one count of attempted robbery in the second degree, in violation of section 569.030. On August 4, 2011, Movant withdrew his former pleas of not guilty to all thirteen counts and entered pleas of guilty.
Movant was sentenced to a total of sixty years' imprisonment.2 Following sentencing, Movant timely filed a pro se motion for post-conviction relief. Thereafter, appointed counsel filed an amended motion and request for an evidentiary hearing asserting the same errors raised in this appeal.
After considering Movant's motion for relief, the motion court denied his request without an evidentiary hearing, holding that he was precluded from arguing the sentencing court erred in denying his motion to withdraw his guilty pleas in a post-conviction motion and that the record refuted his remaining two points. Movant now appeals.
Our review of the denial of a post-conviction motion is limited to a determination of whether the findings of fact and conclusions of law are clearly erroneous. Rule 24.035(k); Feldhaus v. State, 311 S.W.3d 802, 804 (Mo. banc 2010). A motion court's findings are presumed correct and we will overturn the ruling only if we are left with a definite and firm impression that a mistake has been made. Grace v. State, 313 S.W.3d 230, 232 (Mo.App.E.D.2010). “We presume that the motion court's findings and conclusions are correct, and defer to the motion court's determinations of credibility.” Hurst v. State, 301 S.W.3d 112, 117 (Mo.App.E.D.2010) (quoting Clay v. State, 297 S.W.3d 122, 124 (Mo.App.S.D.2009)).
In his first point, Movant contends the motion court clearly erred in denying his claim without a hearing because the sentencing court abused its discretion when it denied his motion to withdraw his guilty pleas. We disagree.
To be entitled to an evidentiary hearing, the movant must satisfy a three-prong test: (1) he must allege facts not conclusions which, if true, would warrant relief; (2) the facts must not be refuted by the record; and (3) the matters complained of must have prejudiced the movant. Smith v. State, 353 S.W.3d 1, 3 (Mo.App.E.D.2011). “If the motion court determines that the files and record of the case conclusively show that the movant is entitled to no relief, a hearing shall not be held.” Id.
As to Point I, the facts alleged by Movant do not warrant relief. An order denying a defendant's motion, made before sentencing, to withdraw his plea of guilty is an appealable order. Wilder v. State, 301 S.W.3d 122, 126–127 (Mo.App.E.D.2010); Belcher v. State, 801 S.W.2d 372, 374 (Mo.App.E.D.1990). “Where a defendant fails to appeal an order denying his motion to withdraw his plea of guilty, he is precluded from raising that issue in a post-conviction motion.” Wilder, 301 S.W.3d at 127. Here, because Movant failed to appeal the sentencing court's denial of his motion to withdraw his pleas of guilty, he is precluded from raising this issue in a motion for post-conviction relief. Accordingly, we find no error. Point denied.
Movant's second and third points address the same facts in the record and are therefore taken together. Movant contends the motion court erred when it denied his motion for post-conviction relief without a hearing because his plea counsel was ineffective for both misleading him and coercing him into pleading guilty. Specifically, Movant contends his counsel misled him into believing he would have received a shorter sentence in exchange for his guilty pleas as well as coerced him into pleading guilty by informing him he would be convicted based on the evidence if he went to trial. We disagree.
To be entitled to relief based on a claim of ineffective assistance of counsel, a movant must establish both deficient performance and prejudice. Bell–El v. State, 386 S.W.3d 194, 197 (Mo.App.E.D.2012). “When pleading guilty, a movant waives any claim that defense counsel was ineffective except to the extent that counsel's conduct affected the voluntariness and knowledge with which the plea was made.” Berry v. State, 336 S.W.3d 159, 163 (Mo.App.E.D.2011). “A movant is not entitled to an evidentiary hearing where the guilty plea proceedings directly refute claims the plea was involuntary.” Carter v. State, 320 S.W.3d 177, 181 (Mo.App.E.D.2010).
“To justify the denial of an evidentiary hearing on an ineffective assistance of counsel claim, the record must be ‘specific enough to refute conclusively the movant's allegation.’ ” Conger v. State, 356 S.W.3d 217, 222 (Mo.App.E.D.2012) (quoting Lomax v. State, 163 S.W.3d 561, 563 (Mo.App.E.D.2005)). “A negative responseto a routine inquiry regarding whether any promises or threats had been made to induce a guilty plea is too general to encompass all possible statements by counsel to his client.” Conger, 356 S.W.3d at 222. “However, a motion court properly denies an evidentiary hearing on a motion for post-conviction relief where the movant repeatedly assured the plea court that he was satisfied with counsel's representation and that counsel did everything he requested and the movant was given ‘ample opportunity to express his duress' to the court.” Id. (quoting Jaegers v. State, 310 S.W.3d 313, 315 (Mo.App.W.D.2010)).
Here, the record before the motion court included the transcript of Movant's guilty pleas and sentencing. At the plea hearing, the court interrogated Movant to determine his understanding and the voluntariness of his guilty pleas. Movant responded in the affirmative when the court asked, The State recommended a sentence of life, and Movant responded he understood when the court queried, “do you understand that whatever sentence I give you could be greater than or less than or the same as what the State is recommending?” 3 Movant testified he was satisfied with the services of his counsel, he was not coerced into pleading guilty, nobody promised him anything concerning his sentence or the number of years he would be sentenced and he had no complaints about his counsel's representation. The court accepted his pleas and deferred sentencing to a later date.
At his sentencing hearing, the court imposed the sentence and then posed several questions to Movant. In response, Movant repeated there had been no threats or promises made to induce him to plead guilty. The court and Movant then engaged in a dialogue concerning his expectation of the sentence received:
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Both at the plea and sentencing hearings, the court's questions to Movant were specific enough to elicit answers that directly...
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