Redeemer v. State, WD

• Decision Date: 24 November 1998
• Docket Number: No. WD,WD
• Citation: Redeemer v. State, 979 S.W.2d 565 (Mo. App. 1998)
• Parties: Paul O. REDEEMER, Appellant, v. STATE of Missouri, Respondent. 55313.
• Court: Missouri Court of Appeals

Page 565

979 S.W.2d 565

Paul O. REDEEMER, Appellant, v. STATE of Missouri, Respondent.

No. WD 55313.

Missouri Court of Appeals Western District.

Nov. 24, 1998.

Rosemary E. Percival, Asst. Appellate Defender, Kansas City, MO, Attorney for Appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Gregory L. Barnes, Asst. Atty. Gen., Jefferson City, MO, Attorney for Respondent.

Before SPINDEN, P.J., ULRICH and EDWIN H. SMITH, JJ.

EDWIN H. SMITH, Judge.

Paul O. Redeemer appeals from the circuit court's judgment denying his Rule 24.035 motion for postconviction relief without an evidentiary hearing. The appellant pled guilty in the Circuit Court of Jackson County, Missouri, before the Honorable Justine E. Del Muro, to one count of unlawful use of a weapon, § 571.030, ¹ and two counts of trafficking in the second degree, § 195.223. He was sentenced to three years imprisonment for unlawful use of a weapon and ten years imprisonment for each count of trafficking, with all the sentences to run concurrently.

In his sole point on appeal, the appellant claims that the motion court erred in denying his Rule 24.035 motion because he received ineffective assistance of counsel, rendering his pleas of guilty involuntary, in that his trial counsel: (1) failed to adequately prepare for trial; (2) misled him into believing that if he pled guilty he would request that he be sentenced pursuant to § 217.362 as a chronic nonviolent offender with a cocaine addiction; and (3) failed to advise him that he would not receive credit for the time he was free on bond awaiting trial.

We affirm.

Facts

The appellant does not dispute the sufficiency of the evidence to support his convictions.

On April 14, 1995, the appellant was stopped by two Kansas City, Missouri, police officers in Jackson County, Missouri, for several traffic violations. During an inventory search of his vehicle, the officers found approximately forty grams of crack cocaine and a loaded handgun. The appellant was arrested, taken to the police station, and placed in a detention room, where he was observed, via a surveillance video camera, pulling a bag of approximately ten grams of crack cocaine from his pants and throwing it on the floor.

The appellant was charged in the Circuit Court of Jackson County, Missouri, with one count of unlawful use of a weapon, § 571.030; two counts of trafficking in the second degree, § 195.223; and two counts of possession of a controlled substance, § 195.202. On March 11, 1996, his case was set for trial on April 8, 1996. At that time, he expressed dissatisfaction with his trial counsel's representation and with the State's plea offer, which was to reduce the "A" felony charges to "B" felony charges, with a recommendation of eight-year sentences. In addition, his trial counsel made an oral motion to withdraw, which was denied.

On April 4, 1996, the appellant's trial counsel filed a written motion for leave to withdraw as counsel and a motion for continuance. In his motion for leave to withdraw, counsel stated that the appellant had avoided all contact with him since March 11, 1996, and had not responded to telephone messages and letters. Counsel also stated that he had informed the appellant that he should retain new counsel immediately and that he was not preparing for trial based on the appellant's assurances that he would be obtaining new counsel. Counsel also stated that he had informed the appellant that the State's plea offer would be withdrawn if not accepted by 5 p.m. on April 3, 1996, but that he never contacted him with instructions regarding whether to accept or reject the plea offer, and that the State withdrew the plea offer on April 3, 1996.

On April 8, 1996, the appellant appeared with trial counsel and informed the court that he wished to enter pleas of guilty pursuant to a plea agreement reached with the State. In exchange for his guilty pleas to one count of unlawful use of a weapon, § 571.030, and two counts of trafficking in the second degree, § 195.223, the State agreed to dismiss the two possession counts, not to charge him as a prior and persistent offender, and to recommend that any sentences imposed run concurrently. Upon questioning by the court as to his pleas, the appellant testified that he understood that he was giving up certain constitutional rights by pleading guilty and that his pleas were voluntary. He also testified that he was satisfied with his counsel's representation but felt that he needed more time to talk with him so he could negotiate a better plea agreement with the State. The court accepted his guilty pleas as voluntary and deferred sentencing until a presentence investigation report by Probation and Parole was completed.

On July 24, 1996, at the sentencing hearing, the appellant's counsel requested that the court consider him for "120-day callback" probation pursuant to § 559.115.2, which the court refused to consider. During the sentencing hearing, the appellant advised the court that he was a cocaine addict. However, the court found that he was not a cocaine addict but was instead a cocaine dealer, and sentenced him to three years imprisonment for unlawful use of a weapon, § 571.030, and ten years imprisonment for each count of trafficking in the second degree, § 195.223, to run concurrently.

The appellant was delivered to the Missouri Department of Corrections on August 2, 1996, and timely filed his pro se Rule 24.035 motion for postconviction relief on October 30, 1996, which was later amended by appointed counsel. In his pro se and amended motions, the appellant alleged that he received ineffective assistance of counsel rendering his pleas involuntary in that his trial counsel: (1) failed to adequately prepare for trial; (2) misled him into believing that if he pled guilty he would request that he be sentenced as a chronic nonviolent offender with a cocaine addiction pursuant § 217.362; and (3) failed to advise him that he would not receive credit for the time he was free on bond before pleading guilty. On November 5, 1997, the appellant filed a pro se supplemental amended motion for postconviction relief, arguing that the two counts of trafficking in the second degree charged the same conduct and subjected him to double jeopardy in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution. On November 25, 1997, the motion court denied the appellant's Rule 24.035 motion without an evidentiary hearing and, having not given him leave to file a supplemental motion, declined to consider his pro se supplemental motion. This appeal follows.

Standard of Review

Our 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 were clearly erroneous. Rule 24.035(k); Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989), cert. denied sub nom. Walker v. Missouri, 493 U.S. 866, 110 S.Ct. 186, 107 L.Ed.2d 141 (1989). Findings and conclusions are clearly erroneous only if, after review of the entire record, we are left with a definite and firm impression that a mistake has been made. State v. Fanning, 939 S.W.2d 941, 948 (Mo.App.1997).

I.

The appellant claims he received ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, the appellant must show that: (1) his attorney's performance was deficient in that he failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances; and (2) the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984); State v. Harris, 870 S.W.2d 798, 814 (Mo. banc 1994), cert. denied, 513 U.S. 953, 115 S.Ct. 371, 130 L.Ed.2d 323 (1994). "To satisfy the 'prejudice' requirement, a prisoner who has pled guilty must demonstrate there is a reasonable probability that, but for counsel's errors, he would not have pled guilty and would have insisted on going to trial." Roland v. State, 824 S.W.2d 526, 529 (Mo.App.1992). Thus, "once a plea of guilty has been entered, the effectiveness of counsel is relevant only to the extent that it affects the voluntariness of the plea." Id. at 529. Absent an abuse of discretion, we will defer to the trial court's determination that the appellant's guilty plea was voluntary. Wolf v. State, 790 S.W.2d 261, 262 (Mo.App.1990). The movant bears the burden of proving his or her grounds for relief by a preponderance of the evidence. Rule 24.035(i); Roland, 824 S.W.2d at 529.

To be entitled to an evidentiary hearing on a postconviction motion for ineffective assistance of counsel, the movant must meet three requirements: (1) the motion must allege facts, not conclusions, warranting relief; (2) the facts alleged must raise matters not conclusively refuted by the files and records in the case; and (3) the matters complained of must have resulted in prejudice to the movant. Rule 24.035(h); State v. Driver, 912 S.W.2d 52, 55 (Mo. banc 1995).

A. Counsel's Failure To Adequately Prepare For Trial

The appellant first claims that he received ineffective assistance of counsel in that his trial counsel failed to adequately prepare for trial. We disagree.

By entering guilty pleas to the charges against him, the appellant generally waived any future complaints that he might have had regarding his counsel's failure to investigate and prepare for trial. Estes v. State, 950 S.W.2d 539, 542 (Mo.App.1997). To succeed on his ineffective assistance of counsel claim based on inadequate preparation or investigation, the appellant was required to allege: (1) what information his attorney failed to discover; (2) that a reasonable investigation or preparation would have resulted in the discovery of such information; and (3) that the information would have aided or improved his position at trial. Yoakum v. State, 849 S.W.2d 685, 688 (Mo.App.1993) (citing Fox v. State, 819 S.W.2d 64, 66 (...