Stuart v. State, ED 106050
| Decision Date | 29 January 2019 |
| Docket Number | No. ED 106050,ED 106050 |
| Citation | 565 S.W.3d 766 |
| Parties | Michael W. STUART, Appellant/Movant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Ellen H. Flottman, Office of the State Public Defender, 1000 West Nifong, Bldg. 7, Ste. 100, Columbia, MO 65203, for Appellant.
Joshua D. Hawley, Attorney General, Karen Louise Kramer, Assistant Attorney General, P.O. Box 899, Jefferson City, MO 65102, for Respondent.
Honorable Mary K. Hoff
Michael W. Stuart ("Movant") appeals from the "Memorandum, Decision, and Judgment Denying Motion for Post-Conviction Relief" ("Judgment") denying his Rule 24.035 motion following an evidentiary hearing. We affirm in part and reverse and remand in part.
Factual and Procedural Background
Movant was charged by amended information as a prior and persistent offender with one count of resisting a lawful stop, in violation of Section 575.150, RSMo 2000.1 Movant was also charged in a separate information with one count of distribution of a controlled substance and one count of distribution of not more than 5 grams of marijuana, in violation of Section 195.211. On August 2, 2016, Movant appeared before the plea court for the purposes of pleading guilty to the offenses.
During the plea hearing, Movant stated that his attorney, Katy Thoman ("Ms. Thoman"), had represented him throughout both cases. Movant also stated that he was aware of the charges against him, that he had enough time to discuss his cases with his attorney, and that he had no complaint about how his attorney had handled his cases. Movant affirmed that he understood the specific constitutional rights attendant with a plea and appeal that he was giving up by pleading guilty. Movant understood that by pleading guilty he was admitting to the essential elements in all of the charges in both of the cases. Movant pled guilty pursuant to a plea agreement whereby he would receive a seven-year sentence that would run consecutively to his other charges and that he would also enter the Long Term Drug Program ("LTDP"), pursuant to Section 217.362.2 A "Memorandum of Plea Agreement" signed by Movant, Ms. Thoman, and the prosecutor reflects those exact terms.
With regard to the first case, Case No. 15BB-CR00763-01, Movant admitted that on April 18, 2015, in Warren County, Officer Tommy Tomlin ("Officer Tomlin") was attempting to make a lawful stop of the vehicle Movant was operating, that Movant knew the officer was making a lawful stop, but for the purpose of preventing Officer Tomlin from effecting the stop, Movant fled "in such a manner that created a substantial risk of serious physical injury or death to other persons" by operating his vehicle "at speeds in excess of one hundred miles per hour, pass[ing] cars on the shoulder of the road and in no passing zones, and fail[ing] to stop at stop signs." Movant also acknowledged that he was a prior and persistent offender, which could raise his punishment to a C felony.
Thereafter, the plea court found Movant to be a prior and persistent offender. When asked, Movant admitted that no threats or promises had been made to entice him to plead guilty and that no promises had been made or could be made as to what his sentence would be. Movant also stated that he understood the court could impose any sentence within the range of punishment permitted by law.
With regard to the second case, Case No. 16BB-CR00101-01, Movant admitted that on April 29, 2014, he knowingly distributed more than five grams of marijuana to a person and that he also knowingly distributed marijuana to that same person on April 25, 2014. Movant admitted that no threats or promises had been made to him to entice him to plead guilty to these charges and that no one had promised him or could promise him what his sentence would be. Movant also acknowledged understanding that the court could sentence him to any term within the range of punishment permitted by law. Finally, Movant stated he understood that he faced from five- to fifteen-years' imprisonment on the B felony and up to seven-years' imprisonment and/or a fine not to exceed $ 5,000 on the C felonies.
Having found a factual basis for the pleas, the court found that Movant's pleas were voluntary and unequivocal and made with an understanding of the charges, and the court accepted Movant's pleas. The following exchange then occurred regarding Movant's sentence:
After the court sentenced Movant to six-years' imprisonment on each of the drug charges and seven-years' imprisonment on the resisting arrest charge, to run concurrently with each other but consecutively to a sentence he was then serving in another case, for a total of thirteen-years' imprisonment, the court stated that it would retain jurisdiction under Section 217.362 and send Movant to the LTDP. Subsequently, however, it was determined that Movant was already serving a sentence in the Department of Corrections ("DOC") when the instant cases were filed. The DOC determined, based on their "calculation," that Movant had conflicting sentences and therefore could not be placed in the long-term treatment program. After Movant was deemed ineligible for placement in the LTDP, his sentences were executed.
On October 13, 2016, Movant timely filed a pro se motion for post-conviction relief pursuant to Rule 24.035. On October 19, 2016, the motion court appointed post-conviction counsel. On November 15, 2016, post-conviction counsel entered his appearance. On November 17, 2016, the transcript from Movant's criminal case was filed. Post-conviction counsel requested an additional 30 days in which to file the amended motion, and that motion was granted. Thereafter, post-conviction counsel timely filed an amended motion on Movant's behalf. Following an evidentiary hearing, the motion court denied Movant's Rule 24.035 motion. This appeal follows.3
Standard of Review
Our review of the denial of a post-conviction motion under Rule 24.035 is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous. Johnson v. State, 529 S.W.3d 36, 39 (Mo. App. W.D. 2017). The motion court's findings and conclusions are clearly erroneous only if, after review of the entire record, we are left with the definite and firm impression that a mistake has been made. Johnson, 529 S.W.3d at 39. Movant has the burden of showing by a preponderance of the evidence that the motion court clearly erred in its ruling. Id.
After a guilty plea, our review is limited to a determination of whether Movant's plea was knowing and voluntary. Taylor v. State, 456 S.W.3d 528, 533 (Mo. App. E.D. 2015). To establish ineffective assistance of counsel, Movant must show both (1) that his attorney failed to conform his representation to the degree of skill, care, and diligence of a reasonably competent attorney under similar circumstances and (2) that he was prejudiced as a result. Taylor, 456 S.W.3d at 534. To prove prejudice, Movant must show that but for counsel's errors, he would not have pleaded guilty but would have insisted on going to trial. Id.
Rule 24.035 provides the exclusive remedy for a person "convicted of a felony on a plea of guilty ... who claims that the conviction or sentence imposed violates the constitution and laws of this state...." Rule 24.035(a).
Discussion
Movant raises four points on appeal. As Points I and II are essentially the same claim of error, we address them together. In Point I, Movant argues the motion court clearly erred in denying his motion for post-conviction relief because the trial court sentenced Movant to the LTDP without verifying his eligibility for the LTDP. In Point II, Movant argues the motion court clearly erred in denying his motion for post-conviction relief because plea counsel was ineffective in failing to verify that he was eligible for the LTDP and in advising him to accept the plea agreement and enter a guilty plea. Specifically, Movant contends because his plea rested upon the guarantee that he was being sentenced to the LTDP, the actions of the trial court and plea counsel rendered his plea involuntary. In Point III, Movant argues the motion court clearly erred in rejecting his claim that he was subjected to double jeopardy when he pled guilty to resisting arrest in two different cases. In Point IV, Movant argues the motion court clearly erred in rejecting his claim that plea counsel was ineffective for failing to advise him that he had a double jeopardy defense.
Double Jeopardy Claims
At the outset, we address Movant's Points III and IV. With respect to Point III, Movant alleged in his amended motion that he was subjected to double jeopardy because the two charges of resisting arrest that he pled guilty to in two separate cases, Case No. 15BB-CR00270-01 and Case No. 15BB-CR00763-01, were part of a continuing course of conduct.
Specifically, Movant alleged that in Case No. 15BB-CR00270-01...
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