Simmons v. State

• Decision Date: 27 May 2014
• Docket Number: No. ED 99128.,ED 99128.
• Parties: Richard SIMMONS, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

429 S.W.3d 464

Richard SIMMONS, Appellant,

v.STATE of Missouri, Respondent.

No. ED 99128.

Missouri Court of Appeals,

Eastern District,

Division One.

March 4, 2014.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 14, 2014.

Application for Transfer Denied May 27, 2014.

Jessica M. Hathaway, St. Louis, MO, for Appellant.

Chris Koster, Andrew C. Hooper, Jefferson City, MO, for Respondent.

ROY L. RICHTER, Presiding Judge.

Richard Simmons (“Movant”) appeals from the denial, without an evidentiary hearing, of his Rule 24.035 motion for post-conviction relief. We affirm.

I. BACKGROUND

On or about August 14, 2009, Movant was an inmate at the Department of Corrections' (“DOC”) Eastern Reception Diagnostic Correction Center (“Correction Center”). On that date, Correction Center personnel entered Movant's jail cell, which Movant shared with another inmate. After Correction Center personnel found a prison-made stabbing weapon wrapped in toilet paper located in the trashcan, Correction Center personnel proceeded to search Movant's body and found a cigarette lighter in Movant's pants pocket.

On August 2, 2010, the St. Francois County Prosecutor charged Movant with the class B felony of concealing a prison-made stabbing weapon in or around a DOC correctional facility, in violation of Section 217.360. Thereafter, on February 18, 2011, pursuant to a plea agreement, Movant plead guilty to the class B felony of concealing a cigarette lighter in or around a DOC correctional facility in violation of Section 217.360. The plea court sentenced Movant to a term of 10 years' imprisonment.

On July 11, 2011, Movant timely filed his pro seRule 24.035 motion for postconviction relief, and an amended motion was subsequently filed. In Movant's motion for post-conviction relief, Movant argues the plea court was without a factual basis to enter Movant's guilty plea. The motion court denied Movant's Rule 24.035 motion for post-conviction relief, without an evidentiary hearing, finding that a factual basis for the pleas was established and Movant understood the nature of the charges against him.

This appeal follows.

II. DISCUSSION

In Movant's sole point on appeal, Movant argues the motion court clearly erred in denying his Rule 24.035 motion for post-conviction relief because the factual basis was insufficient to support his guilty plea, thereby violating his rights afforded to him under the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, Section 10 of the Missouri Constitution. Specifically, Movant contends the plea court accepted Movant's plea of guilty without an adequate factual basis having been demonstrated for the class B felony of delivering or concealing prohibited articles on the premises of the department of corrections, in violation of Section 217.360.1(4) (“Class B Felony”), because the facts of the case allegedly only demonstrate that Movant was guilty of the class A misdemeanor of delivering or concealing prohibited articles on the premises of the department of corrections, in violation of Section 217.360.1(3) (“Class A Misdemeanor”).

Standard of Review

“Appellate review of the motion court's action on a motion filed under Rule 24.035 is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous.” Wood v. State, 853 S.W.2d 369, 370 (Mo.App.E.D.1993); see alsoRule 24.035(k). The motion court's findings and conclusions will be deemed clearly erroneous only if a review of the entire record leaves this Court with a “definite and firm impression that a mistake has been made.” Cobb v. State, 787 S.W.2d 317, 318 (Mo.App.E.D.1990). A movant bears the burden of establishing his grounds for relief by a preponderance of the evidence. SeeRule 24.035(i); see also Barnes v. State, 385 S.W.3d 517, 522 (Mo.App.S.D.2012). This burden is a heavy one as the motion court is free to believe or disbelieve any evidence, whether contradicted or undisputed, including a movant's testimony, and, as such, this Court grants deference to the motion court's credibility determinations. Barnes, 385 S.W.3d at 522.

Furthermore, no hearing is required if the record of the case “conclusively shows that the movant is entitled to no relief.” Martin v. State, 187 S.W.3d 335, 339 (Mo.App.E.D.2006). Rather, a movant is only entitled to an evidentiary hearing if: (1) the movant pled facts, not conclusions, warranting relief; (2) the facts alleged are not refuted by the record; and (3) the matters complained of resulted in prejudice to the movant. Jackson v. State, 366 S.W.3d 656, 659 (Mo.App.E.D.2012).

Analysis

The thrust of Movant's argument is that the plea court entered judgment on his plea of guilty to the Class B Felony without a factual basis because an element of the Class B Felony was deficient—specifically, that Movant's possession of a cigarette lighter does not fall within the category of “any gun, knife, weapon, or other article or item of personal property that may be used in such a manner as to endanger the safety or security” of the correctional center. Section 217.360.1(4). Movant contends that the possession of a cigarette lighter, without more, only demonstrates that Movant was guilty of the Class A Misdemeanor, pursuant to Section 217.360.1(3).

A. Establishing a Factual Basis for the Plea

Rule 24.02 sets forth the procedure a plea court must follow for pleas in felony and misdemeanor cases. Saffold v. State, 982 S.W.2d 749, 753 (Mo.App.W.D.1998); see, generally,Rule 24.02. Pursuant to Rule 24.02(e), the plea court is prohibited from entering a judgment upon a plea “unless it determines that there is a factual basis for the plea.” Rule 24.02(e). “A factual basis exists if the defendant understands the facts presented at the guilty-plea proceeding and those facts establish the commission of the charged crime.” State v. Taylor, 929 S.W.2d 209, 217 (Mo.1996). The factual basis does not have to be established by the defendant's words or by an admission of the facts as recited by the State, but rather, may be established on the record as a whole. Kennell v. State, 209 S.W.3d 504, 506 (Mo.App.E.D.2006). However, the defendant should express “an awareness of the nature and elements of the charge to which he or she pleads guilty.” DeClue v. State, 3 S.W.3d 395, 397 (Mo.App.E.D.1999) (quoting Vann v. State, 959 S.W.2d 131, 134 (Mo.App.S.D.1998)). Accordingly, so long as the defendant understands the nature of the charge, there is no requirement that every element of a crime to which a defendant pleads guilty be explained. Wagoner v. State, 240 S.W.3d 159, 165 (Mo.App.S.D.2007) (“An appellate court's focus is on whether the defendant understood the nature of the charge against him and not on whether a particular ritual was followed or every detail was explained.”).

Furthermore, the plea itself forms a factual basis for the guilty plea “[i]f the plea of guilty is voluntarily and understandingly made and unequivocal as to the factual requisites necessary to establish each element of an offense.” State v. Shafer, 969 S.W.2d 719, 734 (Mo. banc 1998). That is, by pleading guilty, a movant “waives all errors except for those affecting the voluntariness or understanding with which the plea was made.” Saffold, 982 S.W.2d at 753.

This factual basis requirement for a guilty plea is mandated “to ensure that the guilty plea was intelligently and voluntarily entered, thereby satisfying due process requirements.” Chipman v. State, 274 S.W.3d 468, 471–72 (Mo.App.S.D.2008) (emphasis added) (quoting State v. Henry, 88 S.W.3d 451, 457 (Mo.App.W.D.2002)); see also Price v. State, 137 S.W.3d 538, 541 (Mo.App.S.D.2004) (“Rule 24.02(e) is not constitutionally based; rather, its purpose is to aid in the constitutionally required determination that a defendant enter his or her plea of guilty intelligently and voluntarily.”) (emphasis in original). Rule 24.02 is “designed to protect an accused who may appear to be pleading voluntarily and with an understanding of the nature of the charge, but who does so without realizing that his conduct does not actually fall within the charge.” Orr v. State, 179 S.W.3d 328, 329 (Mo.App.S.D.2005).

B. A Sufficient Factual Basis for Movant's Plea Exists

The statutory language of the criminal offense to which Movant pled guilty, Section 217.360, in relevant part, reads as follows:

1. It shall be an offense for any person to knowingly deliver, attempt to deliver, have in his possession, deposit or conceal in or about the premises of any correctional center, or city or county jail, or private prison or jail:

* * *

(3) Any article or item of personal property which an offender is prohibited by law or by rule and regulation of the division from receiving or possessing;

(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 city or county jail, or private prison or jail or as to endanger the life or limb of any offender or employee of such a center.

2. ... the violation of subdivision (3) of subsection 1 of this section shall be a class A misdemeanor; and the violation of subdivision (4) of subsection 1 of this section shall be a class B felony....

To be charged and found guilty of violating the Class A Misdemeanor under subdivision (3) of Section 217.360.1, the State must establish the following two elements: (1) the violator knowingly possessed, deposited or concealed in or about the premises of a correctional center (2) any article or item of personal property which an offender is prohibited by law and regulation of the division from receiving or possessing. See Section 217.360.1(3): see also MAI–CR3d 329.102, Notes On Use 6.

To be charged and found guilty of violating the Class B Felony under subdivision (4) of Section 217.360.1, the State must establish the following two elements: (1) the violator knowingly possessed,...