Rick v. State, 69984

• Decision Date: 26 November 1996
• Docket Number: No. 69984,69984
• Citation: Rick v. State, 934 S.W.2d 601 (Mo. App. 1996)
• Parties: Steven D. RICK, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 601

934 S.W.2d 601

Steven D. RICK, Appellant, v. STATE of Missouri, Respondent.

No. 69984.

Missouri Court of Appeals,

Eastern District,

Division One.

Nov. 26, 1996.

Ellen H. Flottman, Asst. Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Jill C. LaHue, Asst. Atty. Gen., Jefferson City, for respondent.

GARY M. GAERTNER, Judge.

Appellant, Steven D. Rick ("movant"), appeals from the judgment denying his Rule 24.035 motion after an evidentiary hearing in Ralls County Circuit Court. We reverse and remand.

Movant was charged with four counts of assault in the second degree, RSMo § 565.060.1(4) (1994), for driving into another vehicle while under the influence of alcohol, thereby injuring the vehicle's four occupants. On April 26, 1995, movant withdrew his plea of not guilty and entered an Alford ¹ plea of guilty to all four counts.

At the outset of the plea hearing, defense counsel told the trial court, "... [W]e're pleading with an open recommendation, no plea offer from the prosecutor." The court then questioned movant. Movant testified he had not been threatened, pressured, or coerced into pleading guilty; there were no promises made to him causing him to plead guilty; he understood any promises or agreements made by his attorney or the prosecutor were not binding on the court; and he understood the range of punishment on the charges. Movant agreed it was his understanding "that there have been no plea negotiations, and this plea is being made to the Court without any plea bargain with the State." Movant further attested to his understanding that the court would be asking both the state and defense counsel to make a recommendation as to what an appropriate sentence would be, and that the court was not bound by either side's recommendation. The court found movant's plea to have been made knowingly, intelligently and voluntarily.

The trial court subsequently asked for arguments from both sides. The state requested the court to sentence movant to the maximum of seven years on each of the four counts, to run consecutively to each other and to the term movant was currently serving on another crime. No objection was raised by defense counsel, who requested in his own argument that the sentences run concurrently. The court sentenced movant to four consecutive seven-year terms.

Movant was then questioned about the representation he received from defense counsel. The following colloquy ensued:

[MOVANT]: ... This man told me he was--he would let me plead with no recommendation, and he just got up and recommended four seven-year terms to run consecutively. So I need to know what motions I need to file to withdraw my Alford plea. Because that man lied to me.

THE COURT: ... Mr. Beck, was your understanding of the plea negotiations different than what took place?

[DEFENSE COUNSEL]: Judge, it was my understanding we were going to be pleading without any recommendation from the State.

THE COURT: Mr. Brannon?

[PROSECUTOR]: That's not my understanding, Your Honor. An open--An open plea means that we're willing to make any recommendation possible.

THE COURT: As presented to the Court previous to the time that the plea was entered, it was my understanding that there would be no plea bargain and that there would be no agreement as to the term that would be served, but that there was no statement or understanding by me that there would be no recommendation given by the prosecutor.

[MOVANT]: Your Honor, I have a letter, a written letter--

THE COURT: Well, I understand you may, but let me tell what--what we did too. When I was questioning you--And the record will reflect that I asked you a number of questions before I took your plea. One of them specifically was, do you understand that by plea--that when you plead guilty, that I am going to ask the prosecutor for his recommendation concerning what sentence you should serve, and you said yes. And I asked you if you--if you understood that your attorney would have a chance to say that. Now, I was very, very careful about asking you those questions, and so I don't see how there could have been--if you had a misunderstanding, that was the time to have spoken up and say so.

I have advised you of the rules under which you may proceed to have this plea of guilty set aside. Your attorney can go over those matters with you again. And you will be free to file those motions or any appeals that you'd like to based on what's taken place and based on the record we've made. Okay? So that'll--that'll be the explanation that you'll be given on that today.

Movant subsequently testified he was not satisfied with the services rendered him by defense counsel, asserting, "... I have a letter from my attorney saying that I would enter a plea of guilty without any recommendation whatsoever; he would remain quiet during my sentencing. I have the letter from [defense counsel] with his signature on it, and he did not remain quiet. So, yes, I do feel I had insufficient counsel." Nonetheless, the court found "no probable cause of ineffective assistance of counsel exists." Judgment was entered on the plea.

Movant filed timely pro se and amended Rule 24.035 motions. In his first amended motion, movant claimed, inter alia, defense counsel was ineffective for failing to object to the prosecutor's recommendation that the sentences run consecutively to each other and to the sentence already being served by movant. Movant asserted there was an agreement that the state would remain silent as to recommendations on concurrent or consecutive terms; the prosecutor violated this agreement; and movant was not given an opportunity to withdraw his plea upon the occurrence of the violation.

An evidentiary hearing was held December 6, 1995. Movant and defense counsel were the only witnesses. Movant testified to the following: Movant was aware the maximum sentence on each count was seven years. Defense counsel told him of an offer from the prosecutor, in which the state would recommend three consecutive terms at the maximum and one concurrent term (a total sentence of twenty-one years), if movant pled guilty. Movant rejected this offer. Movant was later told of another offer: if he pled guilty, the prosecutor would remain silent as to the sentence recommended by the state, while his counsel argued for concurrent sentences. A letter to this effect, dated March 14, 1995, addressed to movant and signed by counsel, was admitted into evidence. The letter stated in pertinent part:

As I indicated to you in a previous letter, the Prosecuting Attorney is not willing to change his recommendation. He would, however, allow us to plead without any recommendation. This would allow us to argue that all sentences should run concurrent and concurrent with the time you are serving. The Prosecutor would stand silent and not argue for concurrent or consecutive time.

Movant agreed to this offer.

Movant subsequently signed a Petition to Enter Plea of Guilty, dated April 26, 1995, the date of the plea hearing. The petition stated in part: "The Prosecuting Attorney promised that if I plead GUILTY, he/she will do the following: no recomendation" [sic]. ² Movant asserted this meant the prosecutor "would remain silent during sentencing." When asked what he thought the trial court meant when it asked him if the plea was without a plea bargain with the state, movant answered, "I didn't have a plea bargain. To me, it wasn't a plea bargain because we didn't have a set amount of years that I was pleading guilty to. It was just a plea with no recommendation from him."

On cross-examination, movant acknowledged defense counsel advised him he would be prosecuted as a prior and persistent offender if the matter proceeded to trial, where the range of punishment would be twenty years on each count; however, movant insisted, "I would have took it to trial before I took your 21 years." Movant admitted he believed he would be convicted at a trial. Movant also admitted he told the court at the plea hearing that he understood no promises had been made to him causing him to plead guilty, that any promises made to him were not binding on the court, that there had been no plea negotiations and that the plea was being made without any plea bargain with the state.

Defense counsel testified to the following: Movant rejected the prosecutor's initial offer of three consecutive seven-year sentences and one concurrent seven-year sentence. Counsel's notes showed two subsequent offers from the state: one for an open plea, and a later one of no recommendation. Counsel conveyed the latter offer to movant via the March 14, 1995, letter, and movant accepted it. Counsel filled out the Petition to Enter Plea of Guilty, and he and movant signed it. This petition contained the agreement as counsel understood it: "no recommendation." The petition was then admitted into evidence. Counsel further testified:

Q. ... Now, at the plea hearing, the Judge told [movant] he was going to ask for a recommendation. Do you recall that?

A. Yes, I do.

Q. And did you believe at the time that the prosecutor was going to give a recommendation?

A. At that time I was unsure what the prosecutor was going to do, because the Judge had specifically told us that he was going to ask for a recommendation.

Q. But your understanding of the agreement was that the prosecutor was not going to give a recommendation? ...

A. Prior to that hearing, yes.

Q. Okay. So ... going into the plea hearing, you anticipated that there would be no recommendation from the prosecutor based on your negotiations with him; is that correct?

A. That is correct.

On cross-examination, counsel agreed the evidence would be "heavily against" movant if the matter went to trial.

On January 4, 1996, the motion court entered findings of fact, conclusions of law, and a judgment denying movant's claims. The court made the following conclusions of law: The trial court had ...