Porter v. State

• Decision Date: 26 January 2016
• Docket Number: WD 77422
• Citation: 480 S.W.3d 455
• Parties: Clifford E. Porter, Appellant, v. State of Missouri, Respondent.
• Court: Missouri Court of Appeals

480 S.W.3d 455

Clifford E. Porter, Appellant,
v.
State of Missouri, Respondent.

WD 77422

Missouri Court of Appeals, Western District.

Opinion filed: January 26, 2016

Jeannette L. Wolpink, for Appellant.

Christine K. Lesicko, for Respondent.

480 S.W.3d 457

Before Division Three: Joseph M. Ellis, Presiding Judge, Karen King Mitchell, Judge and Gary D. Witt, Judge

Joseph M. Ellis, Judge

Clifford Porter appeals from the Circuit Court of Clay County's denial of his Rule 24.035 motion for post-conviction relief following an evidentiary hearing. For the following reasons, the motion court's ruling is affirmed.

Appellant was charged by information with one count of burglary in the first degree, § 569.160,¹ and one count of robbery in the second degree, § 569.030, related to an incident occurring on February 19, 2011, in Liberty, Missouri. On January 6, 2012, Appellant appeared before the court and, pursuant to a plea agreement with the State, entered a plea of guilty to both counts. In exchange for his plea, the State agreed to argue for no more than consecutive sentences of ten years on the two counts. Defense counsel was free to argue for a lesser sentence. After questioning Appellant about his understanding of the plea agreement and the rights he would be waiving, the plea court found that Appellant's plea was knowingly, intelligently, and voluntarily entered and accepted the plea.

At the sentencing hearing, in conformance with the plea agreement, the State argued for consecutive sentences of ten years on each count. Defense counsel argued for the imposition of concurrent sentences. Ultimately, the trial court sentenced Appellant to consecutive terms of ten years on the burglary count and five years on the robbery count.

Subsequently, Appellant filed a timely motion for post-conviction relief under Rule 24.035. An amended motion was later filed by appointed counsel. In relevant part, Appellant contended that plea counsel had been ineffective for convincing him that he would receive a maximum sentence of concurrent terms of ten years on each count. He claimed that, had he known he could receive a total sentence greater than ten years, he would not have pleaded guilty and would have insisted on proceeding to trial.

Following an evidentiary hearing, the motion court entered its findings of fact and conclusions of law denying Appellant's motion. It found that Appellant's claim that counsel told him he would receive no more than ten years imprisonment was refuted by the record and testimony elicited at the evidentiary hearing. Appellant challenges that determination on appeal.

Appellate review of the motion court's denial of a Rule 24.035 motion is limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous. Hastings v. State, 308 S.W.3d 792, 795–96 (Mo.App. W.D.2010) (quoting Rule 24.035(k) ). "A motion court's findings and conclusions are clearly erroneous only if the Court, after reviewing the entire record, is left with the definite and firm impression that a mistake has been made." Gehrke v. State, 280 S.W.3d 54, 56–57 (Mo. banc 2009). "We presume that the motion court's findings and conclusions are correct, and defer to the motion court's determinations of credibility." Nichols v. State, 409 S.W.3d 566, 569 (Mo.App. E.D.2013).

In his sole point on appeal, Appellant argues that the motion court clearly erred in overruling his motion because the evidence established that plea counsel provided

480 S.W.3d 458

ineffective assistance of counsel by assuring him that he would receive concurrent...