Perkins v. State

• Decision Date: 06 November 2018
• Docket Number: WD 80745
• Citation: 569 S.W.3d 426
• Parties: Joshua A. PERKINS, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

569 S.W.3d 426

Joshua A. PERKINS, Appellant,
v.
STATE of Missouri, Respondent.

WD 80745

Missouri Court of Appeals, Western District.

OPINION FILED: November 6, 2018
Motion for Rehearing and/or Transfer to Supreme Court Denied January 29, 2019
Application for Transfer Denied April 2, 2019

Carol D. Jansen, Columbia, MO, for appellant.

Robert J. Bartholomew, Jr., Jefferson City, MO, for respondent.

Before Division Four: Karen King Mitchell, Chief Judge, Presiding, Cynthia L. Martin, Judge and Janette K. Rodecap, Special Judge

Cynthia L. Martin, Judge

Joshua Perkins ("Perkins") appeals the denial of his Rule 24.035 motion following an evidentiary hearing. Perkins argues that the motion court clearly erred in failing to conduct an abandonment inquiry after appointed counsel filed a statement in lieu of an amended motion, and in denying a claim in his pro se amended motion that his guilty plea was involuntary because he was not advised of the range of punishment. Because the filing of a timely statement in lieu of an amended motion does not necessitate an abandonment inquiry, and because the pro se amended motion Perkins thereafter filed was untimely and did not constitute the reply to a statement in lieu of an amended motion authorized by Rule 24.035(e), the motion court's judgment is affirmed.

Factual and Procedural Background

The State charged Perkins with the class A felony of assault of a corrections officer in the first degree (Count I) and the class B felony of committing violence against an employee of the Department of Corrections (Count II). Perkins appeared with counsel at a plea and sentencing hearing on May 5, 2016. At the hearing, the State initially announced the agreed upon sentence to be concurrent 20-year terms of imprisonment on each count, to run consecutively with any sentence Perkins was currently serving. Perkins stated that he understood the State sought a 20-year sentence on Count I.

Later in the hearing, the State offered to drop Count II if Perkins pleaded guilty to Count I for a 20-year term of imprisonment to be served consecutively with a sentence he was already serving. Perkins agreed. The plea court reiterated the State's offer of a 20-year sentence on Count I, explaining to Perkins he had the right to decline the offer and go to trial. Perkins responded that he did not want to go to trial. The plea court found Perkins's guilty plea was freely and voluntarily entered with an understanding of the nature of the charge and the range of punishment. The plea court also explained to Perkins that there would not be a sentencing assessment report "because we've already agreed with what the sentence is going to be." The plea court sentenced Perkins to a 20-year term of imprisonment on Count I, to run consecutively with any existing sentence. The plea court did not reference the mandatory minimum and maximum penalties for Count I. Perkins did not appeal the judgment of conviction and sentence.

569 S.W.3d 429

Perkins filed a timely pro se motion for post-conviction relief on June 22, 2016. When prompted to list all known claims for vacating, setting aside, or correcting his conviction and sentence, Perkins identified no known claims, and instead wrote "To be amended by appointed counsel." The motion court appointed the public defender as counsel for Perkins. The transcript of Perkins's guilty plea and sentencing was filed on July 29, 2016. By operation of Rule 24.035(g),¹ any amended motion was due by September 27, 2016.

On September 27, 2016, appointed counsel filed a statement in lieu of an amended motion pursuant to Rule 24.035(e). Counsel attested that he had reviewed plea counsel's files, the transcript from Perkins's guilty plea and sentencing, Perkins's pro se motion, and correspondence from Perkins. Based on this review, appointed counsel determined that there were no claims to be raised in an amended motion. Counsel also stated that he provided a copy of the statement to Perkins prior to filing.

On October 3, 2016, within ten days of appointed counsel's filing of the statement in lieu of an amended motion, Perkins filed a motion requesting an extension of time to file an amended motion, and also filed a pro se amended motion. Perkins's pro se amended motion asserted several claims for post-conviction relief from his underlying guilty plea, but did not expressly challenge the assertions in appointed counsel's statement in lieu of an amended motion. Relevant to this appeal, Perkins's pro se amended motion alleged his guilty plea was not voluntary because the plea court failed to advise him of the minimum and maximum sentences he could receive for Count I, and that he would have more than likely gone to trial had he known the range of punishment.

On October 13, 2016, the motion court granted Perkins's motion for an extension of time to file an amended motion and treated the pro se amended motion as timely filed. Following an evidentiary hearing, the motion court issued findings of fact and conclusions of law on Perkins's pro se amended motion. On Perkins's claim that his plea was involuntary because the plea court failed to inform him of the range of punishment, the motion court found that Perkins received the agreed upon sentence established by his plea agreement with the State. The motion court also found that Perkins understood the punishment he would receive per the plea agreement, and that he repeatedly stated he did not want to go to trial. Accordingly, the motion court held that Perkins was not prejudiced by the plea court's failure to inform him of the range of punishment. The motion court denied all other claims in Perkins's pro se amended motion, none of which are the subject of this appeal.

This timely appeal followed.

Standard of Review

"[R]eview of a denial of a post-conviction motion under Rule 24.035 is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous." Roberts v. State , 276 S.W.3d 833, 835 (Mo. banc 2009). "The motion court's findings and conclusions are clearly erroneous only if, after review of the record, the appellate court is left with the definite and firm impression that a mistake has been made." Id. "We presume that the motion court's findings and conclusions are correct, and

569 S.W.3d 430

defer to the motion court's determinations of credibility." Simmons v. State , 502 S.W.3d 739, 741 (Mo. App. W.D. 2016) (quoting Porter v. State , 480 S.W.3d 455, 457 (Mo. App. W.D. 2016) ).

Analysis

Perkins asserts two points on appeal. In Point One, Perkins argues that the motion court clearly erred in failing to conduct an abandonment inquiry following appointed counsel's filing of a statement in lieu of an amended motion. In Point Two, Perkins maintains that the motion court clearly erred in denying the claim in his pro se amended motion that his plea was involuntary because the plea court failed to inform him of the range of punishment.

Point One

In his first point on appeal, Perkins contends that the motion court clearly erred in failing to conduct an abandonment inquiry following appointed counsel's filing of a statement in lieu of an amended motion.

Pursuant to Rule 24.035(e), when counsel is appointed to represent a postconviction movant, counsel "shall ascertain whether sufficient facts supporting the claims are asserted in the [pro se ] motion and whether the movant has included all claims known to the movant as a basis for attacking the judgment and sentence." Following this investigation, "appointed counsel must file either an amended motion to compensate for any deficiencies in the pro se motion or, in the alternative, a statement explaining the actions counsel took to ensure that no amended motion is needed." Vogl v. State , 437 S.W.3d 218, 226 (Mo. banc 2014). "If counsel determines that no amended motion shall be filed, counsel shall file a statement setting out facts demonstrating what actions were taken to ensure that (1) all facts supporting the claims are asserted in the pro se motion and (2) all claims known to the movant are alleged in the pro se motion." Rule 24.035(e). In addition, "[t]he statement shall be presented to the movant prior to filing." Rule 24.035(e).

In Latham v. State , 554 S.W.3d 397, 399 (Mo. banc 2018), our Supreme Court recently held that postconviction counsel's failure "to file either an amended motion or a statement in lieu of an amended motion within the 60-day deadline in Rule 24.035(g) create[s] the presumption [that] postconviction counsel failed to comply with the postconviction rules and, thereby, abandoned [movant]." Latham did not hold, however, that the timely filing of a statement in lieu of an amended motion creates a presumption of abandonment.

Perkins concedes that his appointed counsel's statement in lieu of an amended motion was timely filed. We reject Perkins's suggestion that the mere filing of a timely statement in lieu of an amended motion creates a presumption of abandonment requiring an abandonment inquiry.

Perkins nonetheless argues that appointed counsel's statement in lieu, though timely filed, created a presumption of abandonment because it...