Torrence v. State, 63040

• Decision Date: 10 August 1993
• Docket Number: No. 63040,63040
• Citation: 861 S.W.2d 149
• Parties: Cliff TORRENCE, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 149

861 S.W.2d 149

Cliff TORRENCE, Appellant, v. STATE of Missouri, Respondent.

No. 63040.

Missouri Court of Appeals,

Eastern District,

Division Seven.

Aug. 10, 1993.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Sept. 16, 1993.

Jeff Skoglund, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Rudolph R. Rhodes, IV, Asst. Atty. Gen., Jefferson City, for respondent.

KAROHL, Judge.

Movant, Cliff Torrence, pursuant to a plea bargain, pled guilty to distributing a controlled substance within 1,000 feet of a private elementary school in violation of § 195.214 RSMo Cum.Supp.1990. He appeals from a denial of his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. We affirm.

On October 31, 1991, movant sold .18 grams of cocaine to an undercover detective. This sale occurred within 1,000 feet of St. Louis Academy, a private elementary and secondary school. Movant signed a written confession. On March 31, 1992, he entered a guilty plea. The range of punishment for a Class A felony is 10 to 30 years or life. Pursuant to the plea bargain, the state agreed to waive proof movant was a persistent offender under § 558.019 RSMo 1986. This relieved movant of a requirement that movant serve sixty percent of his sentence. On May 1, 1992, the court sentenced movant to fifteen years in the Missouri Department of Corrections.

Movant timely filed a pro se motion under Rule 24.035 for post-conviction relief. Appointed counsel filed a timely amended motion. The motion court issued findings of fact and conclusions of law. It denied movant's Rule 24.035 motion for post-conviction relief without an evidentiary hearing.

Movant presents one point on appeal that contains two subpoints. He argues the motion court erred in:

denying without an evidentiary hearing appellant's post-conviction claim that his guilty plea was unknowing and involuntary, in that it resulted from his counsel's failure to correctly inform appellant as to when appellant would be eligible for parole and as to the minimum sentence appellant could receive for the charge against him.

Appellate review of a Rule 24.035 proceeding is limited to a determination of whether the motion court's findings of facts, conclusions of law and judgment are clearly erroneous. Rule 24.035(j); Short v. State, 771 S.W.2d 859, 863 (Mo.App.1989). Unless a review of the entire record leaves this court with the definite and firm impression that a mistake has been made, the motion court's findings, conclusions and judgment are not clearly erroneous. Id. No evidentiary hearing is required if the motion, files and records in the case conclusively show that movant is not entitled to relief. Rule 24.035(g); Short, 771 S.W.2d at 863.

Ineffective assistance of counsel is only material to the extent it bore upon the voluntariness of the plea. Blanchette v. State, 753 S.W.2d 322, 324 (Mo.App.1988). To prevail on a claim of ineffective assistance of counsel, appellant must show there is a reasonable probability that, but for counsel's unprofessional errors, appellant would not have pled guilty and would have insisted on going to trial. Wesley v. State, 766 S.W.2d 479, 480 (Mo.App.1989).

First, movant argues his guilty plea was involuntary because it resulted from plea counsel's failure to correctly inform him when he would be eligible for parole. This argument fails for several reasons.

When a movant claims his plea was involuntary because he was misled by counsel, the test is whether movant's belief was reasonable. Holt v. State, 811 S.W.2d 827, 828 (Mo.App.1991).

We agree with the motion court's finding that movant's belief he would be released in three to five years is "an unreasonable belief on his part, and insufficient to make his plea involuntary." Counsel allegedly told movant he would be "eligible for parole" within a certain time. The motion court found:

this statement if made, does not flatly state how much time Movant would serve, as there is never any guarantee a defendant will make parole the first time he becomes eligible. The pre-sentence investigation ordered by this court is contained in the court file. It states that defendant had four prior convictions and served two years in the Department of Corrections. It states that Movant has had a prior probation revoked, and that he was released on parole supervision by the Department of Corrections in May, 1985. Movant then, was no novice as to the criminal justice system.

We adopt these observations and find movant's belief was unreasonable. The defendant has no right to parole and may never receive parole. That decision is not made by a court.

Second, "an inaccurate prediction of sentence by defendant's counsel does not by itself vitiate a guilty plea." Blanchette, 753 S.W.2d at 324. Therefore, even if counsel incorrectly advised movant on his parole eligibility, such advice does not automatically undermine the voluntariness of the guilty plea.

Finally, movant benefitted from the guilty plea on the length of sentence issue. The result was not prejudicial. Pursuant to the plea bargain, the state agreed not to prove movant was a persistent offender under § 588.019 RSMo 1986. In the event of a trial the court would have determined the sentence, not the jury. The ordinarily simple proof of priors would have required movant to serve sixty percent of a court-determined sentence. The sentence now complained of made movant be eligible for parole sooner than if he were sentenced as a prior offender. Moreover, it is not likely movant was prejudiced where he did not give up a right to jury assessment of punishment by accepting the plea bargain. As a prior offender a jury would not decide punishment. Hence, he did not give up the possibility of a jury being lenient.

In his second subpoint, movant argues his guilty plea was involuntary because it resulted from plea counsel's failure to correctly inform him of the minimum...