Soutee v. State, 23717.

• Decision Date: 21 August 2001
• Docket Number: No. 23717.,23717.
• Parties: Stephen SOUTEE, Movant-Appellant v. STATE of Missouri, Defendant-Respondent
• Court: Missouri Court of Appeals

51 S.W.3d 474

Stephen SOUTEE, Movant-Appellant v. STATE of Missouri, Defendant-Respondent

No. 23717.

Missouri Court of Appeals, Southern District, Division One.

May 23, 2001.

Motion for Rehearing or Transfer Denied June 14, 2001.

Application for Transfer Denied August 21, 2001.

Emmett D. Queener, Asst. Public Defender, Columbia, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, for respondent.

Motion for Rehearing or Transfer to Supreme Court Denied June 14, 2001.

PARRISH, Presiding Judge.

Stephen Soutee (movant) was charged with, pleaded guilty to, and convicted of six counts (Counts I through VI) of stealing by deceit. § 570.030.1.¹ He was sentenced to imprisonment for a term of seven years on each count. The sentences imposed in Counts I, II and III were concurrent with each other. The sentences imposed in Counts IV, V and VI were concurrent with each other but consecutive to the sentences in Counts I, II and III.

Following incarceration movant filed a pro se motion for post-conviction relief as permitted by Rule 24.035. Counsel was appointed and an amended motion filed. The motion was denied after an evidentiary hearing. Movant appeals. This court affirms.

This court's review is limited to determining whether the motion court's findings and conclusions are clearly erroneous. Hutson v. State, 878 S.W.2d 497, 498 (Mo.App.1994); Rule 24.035(k).

Point I contends the motion court erred in denying movant's Rule 24.035 motion because movant was not allowed to withdraw his pleas of guilty in the criminal case "when the court failed to follow the plea agreement by not including within the sentence a 120-day call back under Section 559.115, RSMo 1994." That assertion is in two parts. It complains that movant was "denied ... the opportunity to withdraw his guilty plea," but premises that complaint on the assessment that the sentencing court failed to follow movant's negotiated plea agreement. This court first notes that the record does not reflect that movant expressed a desire to withdraw his guilty pleas. Secondly, the sentencing court's failure to include "a 120-day call back" did not violate the negotiated plea agreement.

Movant was sentenced January 8, 1998. The statute that permitted what movant characterizes as "a 120-day call back" was § 559.115.2, RSMo Cum.Supp.1997. It states, in applicable part:

A circuit court only upon its own motion and not that of the state or the defendant shall have the power to grant probation to a defendant anytime up to one hundred twenty days after such defendant has been delivered to the custody of the department of corrections but not thereafter. The court may request information and a recommendation from the department concerning the defendant and such defendant's behavior during the period of incarceration....

The statute explicitly states this type of probation is available to the sentencing court "only upon its own motion and not that of the state or the defendant." Nevertheless, advice given a defendant and relied on by the defendant concerning the availability of probation during the first 120 days of incarceration could affect the voluntariness of his or her plea of guilty. See Bauer v. State, 949 S.W.2d 248, 249 (Mo.App.1997).

Movant and the attorneys who represented the state in the criminal case apparently chose to disregard the directive that authority to consider granting probation within 120 days following department of corrections incarceration is uniquely that of the trial court. They included in their negotiations that the state would not oppose the sentencing court granting probation within 120 days following incarceration if movant did certain things prior to his sentencing. Point I is directed to those negotiations.

Movant argues in support of Point I that from "various negotiations," he believed if he had $75,000 for payment toward restitution on amounts owed related to three of the charged offenses at the time of his sentencing "he would be sic receive 60 days shock time in the county jail and probation." He complains in his argument that this did not occur and, further, that the sentencing court "did not retain jurisdiction under Section 559.115 to release movant after 120 days."²

That argument fails in two respects. First, the argument that the sentencing court did not "retain jurisdiction under Section 559.115 to release movant after 120 days" following his being placed in the custody of the department of corrections is a misstatement of law. Section 559.115.2 provided that authority to the sentencing court. The sentencing court had authority to grant probation during movant's first 120 days of incarceration. It chose not to exercise that authority.

The second failing is that the argument is not supported by the record of the guilty plea proceedings. Those proceedings provided no basis for movant to reasonably believe he would be entitled to release during the first 120 days of his incarceration.

The petition to plead guilty that movant submitted to the sentencing court does not support the argument he now makes. Its paragraph 13 is a printed statement that declared movant had not been promised or had suggested to him that he would receive a lighter sentence or probation or other form of leniency if he pleaded guilty except as stated in the text that followed. The text is hand-printed. It first directs, "SEE STATE'S RECOMMENDATION FILED HEREWITH." It then states, "DEFENDANT ALSO BELIEVES THAT THE COURT MAY IMPOSE 60 DAYS SHOCK JAIL TIME IN LIEU OF 120 DAY CALL BACK PER RSMO § 559.115." (Italics added.)

The state's recommendations referenced in movant's petition to plead guilty required that movant pay certain amounts of restitution and provide notes in sufficient face amounts to pay other obligations relative to the criminal charges. The notes were to be "secured by a first deed of trust on a certain piece of real property which movant ... represented has a fair market value of approximately $80,000.00." The final paragraph of the recommendations states:

That upon the above listed conditions being met the State will recommend that the movant receive seven years on each count and that Counts I, II and III run concurrent to each other and consecutive to Counts IV, V and VI which will run concurrent to each other, and the state will not oppose the court sentencing movant under Section 559.115.2 RSMo. Emphasis added. Movant did not comply with the conditions set out in the state's recommendations.

One who pleads guilty on a mistaken belief as to the terms of the plea agreement is entitled to post-conviction relief only if the guilty plea record provides a reasonable basis for that belief. Bauer v. State, supra; Minner v. State, 887 S.W.2d 758, 760 (Mo.App.1994). Movant's now expressed belief that his negotiated plea agreement entitled him to shock jail time or probation as permitted by § 559.115.2 is not a reasonable interpretation of the hand-written statement that is part of paragraph 13 of his petition to plead guilty. Point I is denied.

Point II contends movant's pleas of guilty were involuntary because "the State materially breached its promise in the plea bargain agreement." Movant argues the negotiated plea agreement, pursuant to which his guilty pleas were entered, "was that if movant failed to make restitution to the victims, the state would not recommend either concurrent or consecutive sentencing." Movant contends the agreement was not followed; that "the State recommended that Counts I, II, and III, run concurrently, but consecutively to concurrent sentences on Counts IV, V, and IVsic."

The motion court found:

. . . . .

6. That pursuant to a plea agreement the state made a written recommendation on Movant's pleas of guilty, this written recommendation was filed with the Circuit Court and was signed by the Movant in open court on November 4, 1997, and Movant acknowledged that he understood the agreement.

7. The state's recommendation provided that if Movant paid certain restitution to the victims prior to the date of sentencing and if Movant secured the payment of the remaining restitution, with a note and a first deed of trust, prior to the date of sentencing the state would recommend a sentence of seven years on each count with Counts I, II and III to run concurrent to each other and to Counts IV, V and VI to run concurrent to each other but consecutive to Counts I, II and III, and the state would not oppose the Court sentencing movant under Section 559.115.2 RSMo.

The State's position was that if Movant did not meet the listed condictions sic then it would be an open plea with the Movant subject to all six counts running consecutive, possibly 42 years, at the request of Movant's attorney the state agreed to give the Movant the benefit of a cap of fourteen years, rather than the possibility of 42 years, this was acknowledge sic by the Movant.

8. On November 4, 1997, Movant acknowledge sic that he understood that the state's recommendation was only a recommendation to the court and if the court did not follow that recommendation he had the right to withdraw his plea.

. . . . .

10. On January 8, 1998, sentencing proceedings were held. At that time the Movant had not paid to each victim the amounts listed as restitution. The Movant did not secure the payment of the remaining restitution, with a note and a first deed of trust, prior to the date of sentencing. The Court heard extensive discussion and testimony concerning the payment of the restitution and found that Movant did not comply with the term sic of the original plea agreement. The court entered its sentence, which resulted in a total sentence of fourteen years. Thus the fourteen year cap, as per the plea agreement, was observed. The Court did not sentence Movant under Section 559.115.2 RSMo.

(Page references to sentencing hearing record in underlying criminal case omitted.)

The motion court concluded:

13.

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