Schuerenberg v. State, 25192.
| Decision Date | 19 March 2003 |
| Docket Number | No. 25192.,25192. |
| Citation | 98 S.W.3d 922 |
| Parties | Sidney L. SCHUERENBERG, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent. |
| Court | Missouri Court of Appeals |
Kent Denzel, Assistant State Public Defender, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Attorney General Nicole E. Gorovsky, Assistant Attorney General, Jefferson City, for respondent.
Sidney L. Schuerenberg ("Defendant") pled guilty, pursuant to a plea agreement, to the class B felony of attempt to manufacture a controlled substance, a violation of Section 195.211.1 As part of the agreement, the State did not oppose Defendant's request for probation. The court sentenced him to fifteen years imprisonment, with execution of that sentence suspended, and he was placed on probation. Defendant's probation was subsequently revoked and his sentence was ordered executed. He filed a motion for post-conviction relief pursuant to Rule 24.035, which was amended by appointed counsel. In his amended motion, Defendant alleged, inter alia, that the trial court accepted his guilty plea without a factual basis for that offense having been demonstrated as required by Rule 24.02(e). After Defendant waived an evidentiary hearing, the motion court denied relief, stating that Defendant had filed a written petition to enter a plea of guilty, had received a copy of the information, and had acknowledged that the facts contained in the information were true. Defendant now appeals that denial.
Appellate review of the denial of a post-conviction motion is limited to a determination of whether the findings of fact and conclusions of law of the motion court were clearly erroneous. Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000). Findings and conclusions are clearly erroneous if, after a review of the entire record, the court is left with the definite and firm impression that a mistake has been made. Id.
In his sole point on appeal, Defendant contends that the motion court clearly erred in denying his Rule 24.035 motion in that there was an insufficient factual basis for his plea of guilty. He argues that the State informed the court only that it would prove the facts alleged in the information, and that, even if he had understood the information, it contained no allegation of the essential element of the offense — that he possessed ephedrine or pseudoephredrine "for the purpose of manufacturing methamphetamine," — and there were no facts offered to establish that element. Additionally, he argues that no facts were shown establishing that his possession of this substance constituted a substantial step towards the manufacture of methamphetamine.
Rule 24.02(e) provides that a "court shall not enter a judgment upon a plea of guilty unless it determines that there is a factual basis for the plea." The purpose of this provision is to aid in the constitutionally required determination that a defendant enter a plea of guilty intelligently and voluntarily. Sales v. State, 700 S.W.2d 131, 133 (Mo.App. S.D. 1985). Relief under this rule is available only for an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice. Id.
Defendant was charged under Section 195.211. That section provides in pertinent part:
1. Except as authorized by sections 195.005 to 195.425 and except as provided in section 195.222, it is unlawful for any person to distribute, deliver, manufacture, produce or attempt to distribute, deliver, manufacture or produce a controlled substance or to possess with intent to distribute, deliver, manufacture, or produce a controlled substance.
Section 564.011(1) provides:
1. A person is guilty of attempt to commit an offense when, with the purpose of committing the offense, he does any act which is a substantial step towards the commission of the offense. A "substantial step" is conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense.
In considering the sufficiency of the evidence to support a conviction for attempted manufacture of methamphetamine, the Missouri Supreme Court discussed the element of "attempt" in State v. Withrow, 8 S.W.3d 75 (Mo. banc 1999). It said that under Section 564.011 "attempt" has two elements: (1) a purpose to commit the underlying offense; and (2) the doing of an act which is a substantial step toward the commission of that offense. Id. at 78. Later, it said "[a]n attempt to commit an offense, regardless of whether the attempt is under sec. 564.011 or under separate provisions proscribing attempting a specified crime, means a substantial step toward the commission of an offense." Id. at 80. See also State v. White, 14 S.W.3d 121, 125 (Mo.App. W.D.2000).
Defendant argues there is nothing in the record providing a basis on which to find that he had a purpose to manufacture methamphetamine. He argues, therefore, that without the "mental culpability" element of the offense, there was no factual basis upon which to accept his plea pursuant to Rule 24.02(e). In support, he cites England v. State, 85 S.W.3d 103 (Mo.App. W.D.2002), in which the court held there was an insufficient factual basis for the plea court to accept the defendant's plea to a charge of assault with intent to kill. Specifically, the court held that the defendant's "Plea Petition," and his statements to the plea court, did not establish that he had a specific intent to kill when he fired gunshots into the victim's house. Id. at 109. Accordingly, the court held there were no specific facts elicited to establish that the defendant acted purposefully to cause the victim's death. Id.
In the instant case, Defendant signed and presented to the plea court his petition to enter a plea of guilty in which he said that he "possessed pseudoephedrine as a substantial step towards the manufacture of methamphetamine." As indicated above, a "substantial step" is defined in Section 564.011(1) as "conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense." Therefore, by definition, before there could be a "substantial step" there must be a purpose to commit the offense. Admitting that conduct was a "substantial step" toward the manufacture of methamphetamine also concedes a purpose to commit the offense, in this case, the attempt to manufacture a controlled substance.
Defendant also represented to the plea court, in his petition, that he had received and read the information filed against him; that he had discussed the charge against him with his attorney and fully understood the charge; that his attorney had counseled and advised him on the nature of the charge; that he knew that the plea court would not permit him to plead guilty if he was innocent, and with that in mind, and because he was guilty, he wished to enter that plea and have it accepted by the court; and that he offered his plea of guilty freely and voluntarily and with a full understanding of all the matters set forth in the information and in the petition to enter the plea.
In open court, the prosecutor informed the plea court and Defendant that the evidence would be as set forth in the information. Defendant, after being sworn, told the plea court that he was familiar with the information as filed, that the facts set forth therein were true, and that he acknowledged his signature on the petition to enter a plea of guilty.
Defendant argues that the prosecutor's reference to the...
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