Thurman v. State
| Decision Date | 09 September 2008 |
| Docket Number | No. ED 90172.,ED 90172. |
| Citation | 263 S.W.3d 744 |
| Parties | Gregory THURMAN, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent. |
| Court | Missouri Court of Appeals |
Jo Ann Rotermund, Assistant Public Defender, St. Louis, MO, for appellant.
Shaun J. Mackelprang, Assistant Attorney General, Dora A. Fichter, Jefferson City, MO, for respondent.
Movant, Gregory Thurman, appeals from the judgment denying on the merits his Rule 24.035 motion for post-conviction relief without an evidentiary hearing after he pleaded guilty to second degree burglary, in violation of section 569.170 RSMo (2000)1, stealing over $500, in violation of section 570.030.3(1) RSMo (2002 Supp.), and one misdemeanor count. We affirm.
On April 24, 2006, the parties appeared at the change of plea proceeding. Movant's counsel announced that movant had authorized him to withdraw movant's former pleas of not guilty and enter pleas of guilty to the four counts of the indictment. She stated that the change of plea was "not pursuant" to the state's recommendation, and she was requesting a pre-sentence investigation or sentencing assessment report.
The court asked movant where he lived, and movant replied that he was homeless. The court set out each of the crimes charged in the indictment and asked movant if he understood he was charged with those crimes. Movant testified it was his decision to plead guilty based on consultation with his attorney and his own legal research. The court explained each of the rights that movant was waiving by pleading guilty and confirmed that movant fully understood each of those rights. The court then asked the prosecutor to state what the state's evidence would be for each of the crimes.2 The prosecutor indicated that the burglary charge was based on movant's entry and presence in another person's vacant home without permission, and that the stealing charge was based on his theft of a Trek mountain bike valued at $500 from that home. He described the evidence in support of these charges. Movant substantially agreed with the facts laid out by the prosecutor and admitted that he had done what the prosecutor said he did.
The court then asked movant if anyone had made any promises or threats to cause him to plead guilty. Movant responded, "No." Movant also said that no one had made any promises about his sentence. The court stated that the range of punishment on each of the two felony counts was up to seven years imprisonment. The prosecutor announced that the state was recommending concurrent terms of seven years imprisonment on the two felonies. The court then confirmed that movant was pleading guilty "not pursuant" to the prosecutor's recommendation, and that movant understood the state's recommendation. The court found that the pleas were made knowingly and voluntarily and there was a factual basis for the pleas, and it accepted movant's guilty pleas.
On May 26, 2006, the court conducted the sentencing hearing. After hearing movant's counsel's request for a suspended execution of sentence and the state's request for concurrent sentences of seven years, the court placed movant under oath. The court asked movant if he had anything to say on his behalf. Movant explained what had caused him to commit the crimes, and he asked for leniency. He specifically admitted that he was "guilty of stealing from that house." The court allowed the state to prove that movant was a prior and persistent offender, and movant admitted pleading guilty to three prior felonies. The court found movant to be a prior offender and a persistent offender. It then sentenced movant to concurrent sentences of seven years imprisonment on each of the felony counts and a concurrent one-year jail term on the misdemeanor count.
After informing movant of his right to post-conviction relief, the court next inquired into the assistance of counsel. During this inquiry, movant admitted that he was aware that the state could have recommended a 31 year sentence because he was found to be a prior and persistent offender. Although movant expressed some dissatisfaction with counsel, the court found no probable cause that movant had received ineffective assistance of counsel.
Movant thereafter filed a timely pro se motion to vacate, set aside, or correct the judgment or sentence pursuant to Rule 24.035. Appointed counsel filed an amended Rule 24.035 motion and request for an evidentiary hearing. The motion court denied movant's request for an evidentiary hearing and entered its findings of fact, conclusions of law, and order denying movant's motion for post-conviction relief. Movant appeals from this judgment.
Our review of a post-conviction motion under Rule 24.035 is limited to a determination of whether the motion court's findings were clearly erroneous. Rule 24.035(k); Weeks v. State, 140 S.W.3d 39, 44 (Mo. banc 2004). We will find the motion court's findings and conclusions to be clearly erroneous only if, after a review of the record, we are left with "`the definite and firm impression that a mistake has been made.'" Weeks, 140 S.W.3d at 44 (quoting State v. Brown, 998 S.W.2d 531, 550 (Mo. banc 1999)).
"In order to be entitled to an evidentiary hearing, a movant must 1) cite facts, not conclusions, which, if true, would entitle the movant to relief; 2) the factual allegations must not be refuted by the record; and 3) the matters complained of must prejudice the movant." State v. Blankenship, 830 S.W.2d 1, 16 (Mo. banc 1992). If the motion, files, and records of the case conclusively show that the movant is not entitled to relief, then no hearing shall be held. Rule 24.035(h).
In his first point, movant contends that the motion court clearly erred when it denied relief without an evidentiary hearing on his claim that the court misadvised movant of the maximum range of punishment and failed to personally advise him that the maximum sentence was 15 years on each felony charge.
In his motion, movant alleged that his plea was involuntary because the court had failed to advise him that the maximum sentence was 15 years on each of the felony counts and not seven years. In denying this claim, the motion court concluded that although the court had not advised movant of the correct maximum sentence, movant was not prejudiced because his sentence fell both within the correct sentencing range and the range he was advised of, and movant had pleaded guilty without an agreement on punishment.
During the change of plea hearing, the court advised movant:
Q In this case you are charged with Count I with a Class C felony, the range of punishment is from one day up to one year in the custody of the Medium Security Institution for the City of St. Louis, from one year up to seven years in the Missouri Department of Corrections, a fine of up to $5000 or any combination of fine and imprisonment imposed by the Court within those ranges. Do you understand that, sir?
A Yes.
Q Count II you are charged with a Class C felony, which is the same range of punishment. Do you understand that?
A Yes.
Rule 24.02(b)(1) requires a court, before accepting a plea of guilty, to address the defendant personally in open court, and inform him of and determine that defendant understands certain facts, including "the maximum possible penalty provided by law." However, a court's failure to follow Rule 24.02(b)(1) in every respect does not necessarily constitute prejudicial error. Holland v. State, 990 S.W.2d 24, 29 (Mo.App.1999). If a maximum penalty is misstated to be less than it actually is, and the defendant is sentenced to a term that is within the correct range as well as within the misstated range, there is no prejudice to the defendant, and the plea is not rendered involuntary by the misstatement. Cole v. State, 850 S.W.2d 406, 409 (Mo.App.1993). The lack of prejudice is explained by the fact that the correct maximum sentence of fifteen years on each felony count, as opposed to the incorrect advice that it was seven years, would have been more likely to induce a guilty plea because "it would have served to reveal that the risk of trial was greater than was indicated to movant prior to his plea." Id. See also Vanzandt v. State, 212 S.W.3d 228, 232 (Mo.App. S.D.2007). In contrast, advice of a lower maximum sentence would be less likely to induce a plea because a trial would pose less of a risk.
In addition, in this case the record indicates that movant did know the correct maximum, in spite of the court's misadvice, because at the sentencing hearing he admitted he knew that the state could have recommended a 31 year term.
The motion court did not clearly err in denying without an evidentiary hearing movant's claim that the court failed to inform him that the maximum sentence on each felony count was 15 years because the record refutes any prejudice. Point one is denied.
For his second point, movant asserts that the motion court clearly erred when it denied relief without an evidentiary hearing on his claim that he did not understand the state's recommendation to include sentencing as a prior and persistent felony offender.
We first observe that this point does not correspond with the claim movant made in his motion. The point on appeal must be directed to the claim alleged in the motion. State v. Light, 835 S.W.2d 933, 941 (Mo.App.1992). We do not have jurisdiction on appeal to review issues not before the motion court. Id. Although movant does make the claim alleged in the motion in the argument portion of his brief, the error must be set out in the point itself and not raised for the first time in the argument. Yates v. State, 158 S.W.3d 798, 802 n. 3 (Mo.App.2005). We do not ordinarily consider arguments raised for the first time in the argument portion of a...
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