Nunn v. State

• Decision Date: 01 August 2000
• Parties: (Mo.App. W.D. 2000) Antonio Nunn, Appellant, v. State of Missouri, Respondent. WD58134 0
• Court: Missouri Court of Appeals

23 S.W.3d 910 (Mo.App. W.D. 2000)

Antonio Nunn, Appellant, v. State of Missouri, Respondent.

WD58134

Missouri Court of Appeals Western District

08/01/2000

Appeal From: Circuit Court of Jackson County, Hon. David W. Shinn

Counsel for Appellant: Andrew A. Schroeder

Counsel for Respondent: Troy Allen

Opinion Summary: Antonio Nunn appeals the denial of his Rule 24.035 motion without an evidentiary hearing, arguing the motion court clearly erred in denying him an evidentiary hearing because the record failed to refute his allegations that his plea counsel affirmatively informed him that (1) he would only have to serve three-and-one half to four years in prison before being eligible for parole, and (2) no jury would acquit him of the charged offenses once it learned that he had been charged in a subsequent assault case. State confesses error as to the second point.

Division One holds: The record fails to refute Nunn's claim that his counsel told him that no jury would acquit him upon learning of his subsequent assault case. Nunn is entitled to an evidentiary hearing.

Joseph M. Ellis, Judge

Antonio Nunn appeals the denial of his Rule 24.035 motion without an evidentiary hearing. He argues the motion court clearly erred in denying him an evidentiary hearing because the record before the court did not refute his allegations that his plea counsel provided ineffective assistance of counsel by affirmatively informing him that (1) he would only have to serve three-and-one half to four years in prison before being eligible for parole, and (2) no jury would acquit him of the charged offenses once it learned that he had been charged in a subsequent assault case.

Nunn was charged by indictment with robbery in the first degree, section 569.020,¹ burglary in the first degree, section569.160, felony stealing, section 570.030, assault in the first degree, section 565.050, and two counts of armed criminal action, section 571.015, in Case No. CR96-73908. In Case No. CR97-06750, Nunn was charged by information with assault in the first degree, section 565.050, and armed criminal action, section 571.015. On February 2, 1998, the plea court held a plea hearing on both cases. At the hearing, Nunn pleaded guilty to robbery in the second degree, section 569.030, assault in the second degree, section 565.060, and two counts of armed criminal action, section 571.015, in Case No. CR96-73908. In exchange for Nunn pleading guilty to these charges, the State agreed to dismiss the charges of burglary in the first degree and felony stealing. The plea court sentenced Nunn to concurrent terms of fifteen years imprisonment for robbery in the second degree, seven years imprisonment for assault in the second degree, and three years imprisonment for each armed criminal action count. On the same date, Nunn also pleaded guilty to assault in the second degree and armed criminal action in Case No. CR97-06750. The court sentenced Nunn to seven years for assault in the second degree and three years for armed criminal action, to be served concurrently with each other and with the sentences imposed in Case No. CR96-73908.

Nunn filed a pro se Rule 24.035 motion for post-conviction relief on March 26, 1998. On June 8, 1998, appointed counsel for Nunn filed an amended motion seeking post-conviction relief and requesting an evidentiary hearing. The motion court issued its findings of fact and conclusions of law and denied the motion without an evidentiary hearing. Nunn timely appealed.

Appellate review of the denial of a Rule 24.035 motion is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 24.035(k); Reynolds v. State, 994 S.W.2d 944, 945 (Mo. banc 1999); Woods v. State, 994 S.W.2d 32, 36 (Mo. App. W.D. 1999). The motion court's findings of fact and conclusions of law are clearly erroneous only if the appellate court, after reviewing the entire record, has a definite and firm impression that a mistake has been made. Reynolds, 994 S.W.2d at 945.

In order for a movant to prevail on a claim of ineffective assistance of counsel, the movant must show that: (1) counsel supplied deficient performance in that counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances; and (2) counsel's deficient performance resulted in prejudice to the movant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); Sams v. State, 980 S.W.2d 294, 296 (Mo. banc 1998). If the movant fails to establish either the performance prong or the prejudice prong, the court need not consider the other prong. Johnson v. State, 5 S.W.3d 588, 590 (Mo. App. W.D. 1999). After a defendant pleads guilty, the receipt of effective assistance of counsel is relevant only to the extent that it impacted the voluntariness of the plea. Copas v. State, ___ S.W.3d ___ (Mo. App. W.D. 2000), 2000 WL 363096, * 2 (No. WD 57627, decided April 11, 2000). Under Rule 24.035(i), the movant must prove his post-conviction claims, including claims of ineffective assistance of counsel, by a preponderance of the evidence. Id.

Rule 24.035 provides that a movant will receive an evidentiary hearing unless the files and records of the case conclusively demonstrate that the movant is entitled to no relief. Rule 24.035(h). In order for a Rule 24.035 movant to be entitled to an evidentiary hearing, the movant must satisfy three requirements: (1) the movant must allege facts, not conclusions, which, if true, would warrant relief; (2) the alleged...