Perkins v. State, WD80745

• Decision Date: 07 August 2018
• Docket Number: WD80745
• Parties: JOSHUA A. PERKINS, Appellant, v. STATE OF MISSOURI, Respondent.
• Court: Missouri Court of Appeals

JOSHUA A. PERKINS, Appellant, v. STATE OF MISSOURI, Respondent.

WD80745

Missouri Court of Appeals Western District

August 7, 2018

Appeal from the Circuit Court of Cole County, Missouri

The Honorable Daniel R. Green, Judge

Before Division Four: Karen King Mitchell, Chief Judge, Presiding, Cynthia L. Martin, Judge and Janette K. Rodecap, Special 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 hearing and in denying his claim that his guilty plea was involuntary.We affirm.

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 term 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 consecutive with the time he was currently 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 advise Perkins of the mandatory minimum and maximum penalties for Count I. Perkins did not appeal the judgment of conviction and sentence.

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 onJuly 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 amended motion asserted several claims for post-conviction relief from his underlying guilty plea, but did not claim abandonment by appointed counsel or otherwise address appointed counsel's statement in lieu of an amended motion.Relevant to this appeal, Perkins's pro seamended motion alleged that the plea court failed to advise him of the minimum and maximum sentences he could receive, 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.Following an evidentiary hearing, the motion court issued findings of fact and conclusions of law on Perkins's pro se amended motion.The motioncourt's judgment held that Perkins's amended motion"was filed within the time constraints of his Motion for Extension of Time."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 defer to the motion court's determinations of credibility."Simmons v. State, 502 S.W.3d 739, 741(Mo. App. W.D.2016)(quotingPorter v. State, 480 S.W.3d 455, 457(Mo. App. W.D.2016))."Even if the stated reason for a [motion]court's ruling is incorrect, the judgment should be affirmed if the judgment is sustainable on other grounds."Swallow v. State, 398 S.W.3d 1, 3(Mo. banc 2013).

Analysis

Perkins asserts two points on appeal.In Point One, Perkins argues that the motion court clearly erred in failing to conduct an abandonment hearing 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 his claim 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 record does not demonstrate that appointed counsel satisfied the requirements of Rule 24.035(e), requiring the motion court to conduct an abandonment analysis.Perkins claims that appointed counsel failed to fulfill his obligations under Rule 24.035(e) because counsel did not personally ask or discuss with Perkins whether the pro se motion alleged all claims known to him.

Pursuant to Rule 24.035(e), when counsel is appointed to represent a post-conviction 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).

"If post-conviction counsel fails to comply with the provisions of the Rule, it raises a presumption that he has abandoned the movant."Scott v. State, 472 S.W.3d 593, 596(Mo. App. W.D.2015)."[W]hen the record raises a presumption of abandonment because appointed counsel has failed to comply with the requirements in Rule 24.035(e) . . . a motion court must conduct a sufficient independent inquiry of a post-conviction movant's claim of abandonment."Vogl, 437 S.W.3d at 229.But when the record refutes a claim of abandonment, "no independent inquiry is required of the motion court."Id.A claim of abandonment is refuted by the record, such that no inquiry is required, when appointed counsel complies with Rule 24.035(e) by "filing either an amended motion or a statement setting out facts that demonstrate the actions that were taken to ensure that an amended motion is not needed."Id. at 228."A decision by [post-conviction]counsel to file a statement in lieu of an amended motion, as permitted by Rule 24.035(e), does not, in itself, constitute abandonment."Scott, 472 S.W.3d at 597.

Here, appointed counsel filed a statement in lieu of an amended motion in the manner required by Rule 24.035(e).Appointed counsel's statement in lieu advised that appointed counsel had ascertained "that there are no claims to be raised in an amended motion, and there are no additional facts to be included in support [of] what [Perkins] has stated in his pro se motion to vacate, set aside, or correct judgment or sentence."In support of these assertions, appointed counsel noted that he had reviewed (i) plea counsel's files, (ii) the transcript of Perkins's plea and sentencing hearing, (iii) Perkins's pro se motion, and(iv) correspondence from Perkins.The statement in lieu also asserted that that a copy of the statement had been provided to Perkins prior to its filing.The statement in lieu facially complied with the requirements of Rule 24.035(e).The record thus refutes a claim of abandonment.²Vogl, 437 S.W.3d at 228-29.

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