Scott v. State

• Decision Date: 26 November 2013
• Docket Number: No. WD 75861.,WD 75861.
• Citation: 414 S.W.3d 57
• Parties: Carlis A. SCOTT, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

414 S.W.3d 57

Carlis A. SCOTT, Appellant,
v.
STATE of Missouri, Respondent.

No. WD 75861.

Missouri Court of Appeals,
Western District.

Nov. 26, 2013.

[414 S.W.3d 58]

Susan L. Hogan, Appellate Defender, Kansas City, MO, for appellant.

Chris Koster, Attorney General, Dora A. Fichter, Assistant Attorney General, Jefferson City, MO, for respondent.

Before Division Three: KAREN KING MITCHELL, Presiding Judge, and LISA WHITE HARDWICK and GARY D. WITT, Judges.

KAREN KING MITCHELL, Presiding Judge.

Carlis Scott appeals the motion court's denial of his Rule 24.035¹ motion for post-conviction relief without an evidentiary hearing. We reverse and remand.

[414 S.W.3d 59]

Factual and Procedural History

Carlis Scott was arrested for drug trafficking in violation of state law on September 5, 2007, but the case was later dismissed. Scott was then arrested on a federal warrant in January 2008. After being found incompetent to proceed, Scott was held in federal custody from June 2008 until June 2009. In October 2009, the state drug-trafficking charge was reinstated, but it was again dismissed in November 2009.

On October 19, 2010, Scott was charged with one count of second-degree drug trafficking, in violation of section 195.223. He was found competent to proceed on November 11, 2011, and pled guilty on April 5, 2012. Scott alleged that, with the exception of eleven days in October and November 2009, he was in either federal or state custody from January 2008, when he was arrested on the federal warrant, to April 5, 2012, when he pled guilty in state court.

In exchange for Scott's guilty plea, the prosecutor recommended a sentence of eight years in prison. At the plea hearing, Scott told the court that he understood the plea agreement and had not received any other promises or assurances other than the plea agreement. He also said that he understood the range of punishment and that the prosecutor's sentencing recommendation was not binding on the court. Scott's attorney denied making any promises to Scott as to parole eligibility. The court then engaged in the following conversation with Scott and his attorney:

[THE COURT:] Sir, in pleading guilty here today are you relying on any promise or assurance or advice from anyone as to when you may be eligible for probation or for parole if you are sent to the Department of Corrections?

[SCOTT:] My understanding is that I will get four years time served.

[THE COURT:] Well, that can't happen because the minimum you can get is five years. Like I said, the range of punishment is five to 15.

[SCOTT:] Yes.

[THE COURT:] You understand that, and the range of punishment—I'm sorry, and the recommendation is for eight.

[DEFENSE COUNSEL:] Your Honor, just to clarify, Mr. Scott has served a significant amount of time in custody over the last several years that this case has been pending, and I think what I explained to him is that he automatically gets credit for time that he has served towards this sentence while he's been in custody, and I think that might be the area of confusion.

THE COURT: I see.

[DEFENSE COUNSEL:] He should have about four years total in custody at this point.

THE COURT: All right.

[THE COURT:] So it's your understanding that you're going to get credit for every day you've already served in this case?

[SCOTT:] Yes, sir.

[THE COURT:] Well, and that is true. That is going to happen. Now, you understand that this Court doesn't have any control over how that is calculated, though. The Department of Corrections is in charge of that, do you understand?

[SCOTT:] Yes.

[THE COURT:] Okay, so let me ask you the question again. Has anybody given you any promise or assurance or advice as to when you might be eligible for probation or parole if you are sent to the Department of Corrections?

[SCOTT:] No.

[THE COURT:] Okay. You understand that no one can make you any

[414 S.W.3d 60]

such promise or assurance, and any advice you may have gotten along those lines is nothing more than guess work because you might have to serve every day of whatever sentence you get in this case. Do you understand that?

[SCOTT:] Yes.

Scott then stated that he was pleading guilty voluntarily. The court advised Scott of the rights he was giving up by pleading guilty, and Scott indicated that he understood. Scott also stated that he was satisfied with the representation he had received from his attorney. The court accepted Scott's guilty plea and sentenced him to eight years in the Department of Corrections.

Upon arrival at the Department of Corrections, Scott learned that he would receive 535 days of jail-time credit. On June 14, 2012, Scott timely filed a pro se Rule 24.035 motion to vacate, set aside, or correct his judgment and sentence. On October 1, 2012, appointed post-conviction counsel timely filed an amended motion.

The amended motion alleged that Scott was denied his rights to due process and the effective assistance of counsel in that he pled guilty in reliance on his attorney's advice that he would receive credit towards his sentence for all of the time he served before entering his guilty plea. The amended motion further alleged that Scott would not have pled guilty had he known that he would not be credited for the entire time he was in both state and federal custody.

On October 30, 2012, the motion court denied Scott's Rule 24.035 motion without granting him an evidentiary hearing. Scott then filed this appeal.

Standard of Review

Appellate review of the motion court's denial of a Rule 24.035 motion “is limited to a determination of whether the findings and conclusions of the [motion] court are clearly erroneous.” Rule 24.035(k). “ ‘The [motion] court's findings and conclusions are clearly erroneous only if, after reviewing the entire record, the appellate court is left with the definite and firm impression a mistake has been made.’ ” Scarborough v. State, 363 S.W.3d 401, 404 (Mo.App. S.D.2012) (quoting State v. Nunley, 923 S.W.2d 911, 922 (Mo. banc 1996)). A post-conviction movant is entitled to an evidentiary hearing only if: (1) he alleges facts that, if true, would warrant relief; (2) the allegations are not refuted by the record; and (3) the movant was prejudiced by the alleged errors. Webb v. State, 334 S.W.3d 126, 128 (Mo. banc 2011). A hearing is not required if the court determines that “the motion and the files and records of the case conclusively show that the movant is entitled to no relief.” Rule 24.035(h).

Analysis

Scott's sole claim for relief is that his attorney was ineffective when he incorrectly assured Scott that he would receive four years of credit for time served towards the eight-year sentence he received. Scott claims that but for counsel's assurance, he would not have pled guilty.

If Scott held a mistaken belief about his potential sentence, he would be entitled to relief if that mistaken belief was both reasonable and “based on a positive misrepresentation on which he was entitled to rely.” Felton v. State, 103 S.W.3d 367, 371 (Mo.App. S.D.2003). Incorrect advice from counsel regarding collateral consequences of conviction can render a defendant's plea involuntary. Webb, 334 S.W.3d at 129. But, “ ‘[w]hile an individual may proclaim he had a certain belief and may subjectively believe it, if it was unreasonable for him to entertain such a belief

[414 S.W.3d 61]

at the time of the plea proceeding, relief should not be granted.’ ” State v. Roll, 942 S.W.2d 370, 376 (Mo. banc 1997) (quoting McMahon v. State, 569 S.W.2d 753, 758 (Mo. banc 1978)). In other words, “ ‘[w]here there is no reasonable basis for the belief in light of the guilty plea record, [the defendant] is not entitled to relief.’ ” State v. Banks, 259 S.W.3d 49, 51...