Robinson v. State, 55652
| Decision Date | 02 May 1989 |
| Docket Number | No. 55652,55652 |
| Citation | 772 S.W.2d 770 |
| Parties | Terrell ROBINSON, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent. |
| Court | Missouri Court of Appeals |
Henry B. Robertson, Asst. Public Defender, St. Louis, for movant-appellant.
William L. Webster, Atty. Gen., Daryl R. Hylton, Asst. Atty. Gen., Jefferson City, for respondent-respondent.
Movant appeals from the denial, without an evidentiary hearing, of his Rule 24.035 motion. We affirm.
Movant pled guilty in Cause No. 871-00516A to first degree assault, first degree robbery and two counts of armed criminal action arising from his participation in an armed holdup and subsequent shoot-out with the police where both he and a police officer were injured by gunfire. The court sentenced movant to respective sentences of 30, 30, 50 and 50 years' imprisonment, all to be served concurrently. The sentences were entered in accordance with a plea agreement. Subsequently, at the same plea hearing, movant pled guilty in Cause No. 871-00895 to five counts of first degree robbery and five counts of armed criminal action. The court sentenced movant to terms of 30 years' imprisonment on each robbery count and 50 years' imprisonment on each armed criminal action count; the sentences to be served concurrently with each other and the sentences in Cause No. 871-00516A. These sentences and the prosecutor's nolle prosequi of Cause No. 871-01620A were all made in accordance with the same plea agreement the court observed when sentencing in Cause No. 871-00516A.
In his Rule 24.035 motion as amended by appointed counsel, movant challenged the effectiveness of his trial counsel as to his pleas of guilty to the charges in Cause No. 871-00516A. The motion court entered detailed findings of fact and conclusions of law denying the motion. The court ultimately concluded movant's allegations were refuted by the record.
On appeal, in his principal point, movant contends that the motion court clearly erred in denying his motion without an evidentiary hearing when he "alleged facts sufficient to entitle him to relief" by alleging counsel "wrongly assured him that he would be paroled in seven or eight years rather than later...." We agree with the trial court that as to this point movant's allegations are clearly refuted by the record.
Our review is limited to determining whether the findings, conclusions, and judgment of the motion court are clearly erroneous. Rule 24.035(j); Richardson v. State, 719 S.W.2d 912, 915 (Mo.App.1986). To be entitled to an evidentiary hearing on a postconviction relief motion, the movant must allege facts, not conclusions, which, if true, would warrant relief; the allegations of fact must not be refuted by the record; and the matters complained of must have resulted in prejudice to the movant's defense. Thomas v. State, 736 S.W.2d 518, 519 (Mo.App.1987). After a plea of guilty, the effectiveness of counsel is relevant only to the extent it affects the voluntariness of the plea. Armour v. State, 741 S.W.2d 683, 688 (Mo.App.1987).
The controlling law on the issue raised here is stated in Marlatt v. State, 672 S.W.2d 165 (Mo.App.1984). "A [movant's] belief as to his or her anticipated sentence is necessarily subjective, but the test to be applied when determining voluntariness is whether there was a reasonable basis in the guilty plea record for the [movant] to have such a belief." Id. at 167. Here, the record clearly refutes any notion that movant could reasonably believe he was going to receive sentences other than those he did receive and that he would of a certainty be paroled within a particular period of time.
At the plea proceeding counsel, in movant's presence, stated,
Pursuant to negotiations with the Circuit Attorney, [resulting in the state's] recommendation of fifty years for all charges in Cause Number 871-00516A, Terrell Robinson has authorized me to withdraw his former pleas of not guilty and enter pleas of guilty to the charge[s] of assault first degree, armed criminal action, robbery first degree and armed criminal action.
The State's recommendation on Count I, assault first degree, is thirty years; Count II, armed criminal action, is fifty years; Count III, robbery first degree, is thirty years; and Count IV, armed criminal action, is fifty years.
All of those counts are to run concurrent for a total of fifty years.
Movant was then placed under oath and the court conducted an extensive and full interrogation of movant about his pleas and the charges against him. During the interrogation, movant admitted that he had an eleventh grade education. The state gave a detailed recitation of the facts and circumstances surrounding the offenses for which movant was charged and what the state's evidence would be on those charges. That recitation included movant's direct participation in all of the offenses for which he was charged; that he had a gun; that the offenses were committed by the use of a gun; that he, along with his companions, fled; and that he or a cohort was the trigger man who shot the officer. Numerous people, including one of his partners, acquainted with movant and his involvement in one or more of the crimes were to be witnesses. Movant stated under oath that he had no disagreements with anything the prosecutor had recited.
We believe the following questions and answers at the plea hearing are particularly probative:
Q. Have any threats or promises been made to you in order to obtain this plea of guilty?
A. No, sir.
....
Q. And has anyone told you to say anything but the truth during this proceeding?
A. No, sir.
....
Counts II and IV are armed criminal action. The minimum is three, the maximum is any term of years. Our recommendation would be fifty years on each of those counts to run concurrent to each other and concurrent to the assault first and the robbery first for a total of fifty years.
Movant's guilty pleas are the results of a plea bargain. Although the trial court did not use the term plea bargain, the plea transcript clearly reveals movant entered the pleas because the state would recommend concurrent sentences totalling fifty years. The movant's reasonable expectation was that he would receive sentences totalling fifty years. There is no contention that either the state or the court did not comply with this part of the bargain.
Movant, who had an eleventh grade education, testified that no threats or promises had been made to him in order to obtain the pleas of guilty and that no one had told him to do anything but tell the truth. 1 Nothing in the record indicates the length of time that movant was to actually serve was part of the plea agreement. Movant's contentions are clearly refuted by the plea record.
The trial court properly denied an evidentiary hearing on this issue.
Movant also contends he was entitled to an...
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