Ross v. State

• Decision Date: 26 June 2001
• Citation: 48 S.W.3d 667
• Parties: (Mo.App. S.D. 2001) James Russell Ross, Appellant v. State of Missouri, Respondent. WD59090 0
• Court: Missouri Court of Appeals

48 S.W.3d 667 (Mo.App. S.D. 2001)

James Russell Ross, Appellant v. State of Missouri, Respondent.

WD59090

Missouri Court of Appeals Western District

06/26/2001

Appeal From: Circuit Court of Cole County, Hon. Byron L. Kinder

Counsel for Appellant: Irene Karns

Counsel for Respondent: Stephanie Morrell

Opinion Summary: James Russell Ross appeals the denial of his Rule 24.035 postconviction relief motion without an evidentiary hearing. He had been convicted of the class B felony of possession of a weapon about the premises of a correctional institution of the Missouri Department of Corrections and Human Resources, section 217.360.1 (4), RSMo 2000, and sentenced to five years imprisonment. On appeal, Mr. Ross claims that the motion court clearly erred in denying his Rule 24.035 motion without granting an evidentiary hearing or addressing his claim that his due process rights under the Fourteenth Amendment to the United States Constitution and Article I, section 10 of the Missouri Constitution were violated when the court accepted his guilty plea without first ascertaining a factual basis for the conviction as required by Rule 24.02 (e). Mr. Ross also claims that the motion court plainly erred in assessing and collecting costs from him after denying his postconviction relief motion.

The judgment and the order assessing costs against Mr.Ross is reversed, and Mr. Ross's guilty plea and conviction are vacated.

REVERSED AND VACATED IN PART.

Division Three holds: Where the facts articulated at the guilty plea hearing showed only that an ice pick was found in Mr. Ross's cell and did not show that Mr. Ross knew the ice pick was in his cell or that Mr. Ross was in either actual or constructive possession of the ice pick, the record did not establish a factual basis for the plea court to accept Mr. Ross's guilty plea. The requirements of Rule 24.02(e) were, therefore, not met, and the motion court's judgment denying Mr. Ross's Rule 24.035 motion was clearly erroneous.

Smith, J. and Newton, J. concur.

Robert G. Ulrich, P.J.

James Russell Ross appeals the denial of his Rule 24.035 postconviction relief motion without an evidentiary hearing. He had been convicted of the class B felony of possession of a weapon about the premises of a correctional institution of the Missouri Department of Corrections and Human Resources, section 217.360.1 (4), RSMo 2000, and sentenced to five years imprisonment. Mr. Ross asserted in his motion that his right to due process was abridged because his plea was accepted without a factual basis being established. The motion court denied the motion and assessed costs of $90 against Mr. Ross. Mr. Ross timely appealed the motion court's decision.

On appeal, Mr. Ross claims that the motion court clearly erred in denying his Rule 24.035 motion without granting an evidentiary hearing or addressing his claim that his due process rights under the Fourteenth Amendment to the United States Constitution and Article I, section 10 of the Missouri Constitution were violated when the court accepted his guilty plea without first ascertaining a factual basis for the conviction as required by Rule 24.02(e). Mr. Ross also claims that the motion court plainly erred in assessing and collecting costs from him after denying his postconviction relief motion.

Review of the motion court's decision is limited to determining whether the judgment of the court is clearly erroneous. Rule 24.035(k); State v. Roll, 942 S.W.2d 370, 375 (Mo. banc 1997), cert. denied, 522 U.S. 954, 118 S.Ct. 378, 139 L.Ed.2d 295 (1997). Only when the appellate court is left with the definite and firm belief that a mistake has been made, after reviewing the entire record, will a judgment be found to be clearly erroneous. Roll, 942 S.W.2d at 375. The appellant must demonstrate entitlement to relief by a preponderance of the evidence. Rule 24.035(i); State v. Nunley, 923 S.W. 2d 911, 922 (Mo. banc 1996), cert. denied, 519 U.S. 1094, 117 S.Ct. 772, 136 L.Ed.2d 717 (1997).

Mr. Ross's first point on appeal claims that no factual basis was stated at the time he entered the plea of guilty. He requests this court to remand the case for an evidentiary hearing on this issue. An evidentiary hearing, however, is not automatically necessary to determine whether the record contains a factual basis for a guilty plea as required by Rule 24.02(e). Hoskin v. State, 863 S.W.2d 637, 639 (Mo. App. E.D. 1993). Instead, this is a matter to be resolved by a study of the plea hearing. Id.

Under Rule 24.02(e), a court may not enter judgment on a plea of guilty unless the court first determines that a factual basis for the plea is established. Rule 24.02(e). Before accepting a guilty plea, the trial court must "determine facts which defendant admits by his plea and that those facts would result in defendant being guilty of the offense charged." Carmons v. State, 26 S.W.3d 382, 384 (Mo. App. W.D. 2000)(quoting Hoskins, 863 S.W.2d at 639). "Some of the stated purposes of Rule 24.02 are that a defendant understand the specific charges against him, that he understand the maximum penalty confronting him, and that he recognize that he has waived specific legal rights by pleading guilty." Saffold v. State, 982 S.W.2d 749, 753 (Mo. App. W.D. 1998). A defendant is not required to admit or recite the facts constituting the offense in the guilty plea hearing as long as a factual basis for the plea exists. Carmons, 26 S.W.3d at 384. A factual basis for a guilty plea is established if the defendant understands the facts recited by the judge or prosecutor. Id. The defendant should express an awareness of the nature and elements of the charge to which he pleads guilty. Id. Where a guilty plea is voluntarily and understandingly made, as well as unequivocal as to the factual requisites necessary to establish every element of the offense, a factual basis exists for the plea. Saffold, 982 S.W.2d at 753.

Mr. Ross was charged with knowingly possessing "an ice pick type weapon" (ice pick) while incarcerated on or about the premises of the Jefferson City Correctional Center in violation of section 217.360.1(4). Section 217.360.1(4) states in pertinent part:

1. It shall be an offense for any person to knowingly . . . have in his possession, deposit or conceal in or about the premises of any correctional center:

* * *

(4) Any gun, knife, weapon, or other article or item of personal property that may be used in such manner as to endanger the safety or security of the correctional center or as to endanger the life or limb of any offender or employee of such a center.

Statute 217.360.1(4), RSMo 2000. The elements of the offense charged in the indictment, therefore, are that Mr. Ross (1) knowingly possessed, deposited or concealed in or about the premises of the Jefferson City correctional center (2) a weapon or other article or item of personal property that may be used in such manner as to endanger the safety or security of the correctional center or as to endanger the life or...