Trehan v. State
| Decision Date | 15 March 1994 |
| Docket Number | No. 18803,18803 |
| Citation | 872 S.W.2d 156 |
| Parties | James D. TREHAN, Jr., Movant-Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Raymond L. Legg, Office of the State Public Defender, Columbia, for movant-appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Stacy L. Anderson, Asst. Atty. Gen., Jefferson City, for respondent.
Movant appeals the denial of his Rule 24.035 1 motion without an evidentiary hearing. He raises issues concerning the sufficiency of the motion court's findings of fact and conclusions of law, as well as the denial of his request for an evidentiary hearing.
On March 27, 1987, Movant pleaded guilty to a charge of receiving stolen property in violation of § 570.080. He was sentenced to seven years, but execution of that sentence was stayed and he was placed on supervised probation. In September 1990, his probation was revoked and he was ordered to serve the sentence previously imposed. In November 1990, he filed a pro se Rule 24.035 motion to vacate his judgment and sentence. Thereafter, appointed counsel filed an amended motion, which was denied by the motion court without an evidentiary hearing and without making findings of fact and conclusions of law. This court, in Trehan v. State, 835 S.W.2d 427 (Mo.App.1992), remanded the case to the motion court for a determination of whether appointed counsel had abandoned Movant, also noting that although the authorities are divided it is better practice to issue findings of fact and conclusions of law on all issues presented. Id. at 430. 2
Thereafter, the motion court found that Movant had been abandoned by counsel and appointed new counsel who filed another amended Rule 24.035 motion. In that motion, which is the subject of this appeal, Movant alleged, among other things, that his guilty plea was not knowingly, voluntarily, and intelligently entered because trial counsel informed Movant that unless he pleaded guilty the State would amend the charge and prosecute him as a prior offender, resulting in his being required to serve a minimum of forty percent of his sentence, whereas that could be done only if the charge was a Class A or B felony and not a Class C felony with which he was charged; trial counsel failed to investigate three potential witnesses who would have testified that when he purchased the items in question he did not know they were stolen; and the trial court accepted his plea without determining that a factual basis existed for it.
The motion court denied Movant's request for an evidentiary hearing and entered the following order:
The Court finds that Judge Whipple, after inquiring of the defendant on taking the plea of guilty, made specific findings that there was a factual basis for the plea and that the defendant knowingly, voluntarily and understandingly entered the plea of guilty.
The defendant admitted that he committed the offense as charged.
The defendant admitted that he accepted the plea offer because he was guilty.
The record supports a factual basis for the plea.
Therefore, the Court finds Movant is entitled to no relief. Motion overruled.
Appellate review of the court's action on a Rule 24.035 motion is limited to a determination of whether the findings and conclusions of the trial court were clearly erroneous. Rule 24.035(j). The court's findings, conclusions and order are clearly erroneous only if a review of the entire record leaves the appellate court with a definite and firm impression that a mistake has been made. Short v. State, 771 S.W.2d 859, 863 (Mo.App.1989).
Movant contends that the motion court erred in failing to grant an evidentiary hearing on matters concerning the alleged ineffectiveness of his trial counsel. After a guilty plea, however, effectiveness of counsel is relevant only if it affects the voluntariness of the plea. Kline v. State, 704 S.W.2d 721, 722 (Mo.App.1986). In order to be entitled to an evidentiary hearing, a movant must (1) allege facts, not conclusions which, if true, would warrant relief; (2) the facts must raise matters not refuted by the files and record in the case; and (3) the matters complained of must have resulted in prejudice. Short v. State, 771 S.W.2d at 863. In order to show prejudice, a movant must demonstrate a reasonable probability that, but for the errors or ineffectiveness of counsel, he would not have pleaded guilty and would have insisted on a trial. Perryman v. State, 755 S.W.2d 598, 601 (Mo.App.1988); Kline v. State, 704 S.W.2d at 722 (citing Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).
Movant argues that he should have been granted an evidentiary hearing because his amended motion alleged that trial counsel "failed to contact, investigate and call" three witnesses who would have refuted that he "knowingly received stolen property by testifying they were present during the sale and there was no discussion about the items being stolen." An evidentiary hearing is not required if the files and record of the case conclusively show that movant is entitled to no relief. Rule 24.035(g); Grove v. State, 772 S.W.2d 390, 394 (Mo.App.1989). 3
In the instant case, Movant's claim is refuted by the record of his guilty plea. At that time, he was informed by the trial court that he had a right to subpoena witnesses who had evidence which would show he was not guilty. He also testified as follows:
Q. Do you understand your Right to subpoena witnesses in your own defense?
A. Yes, sir.
Q. Do you waive that Right?
A. Yes, sir.
Q. Is this plea entered into by you freely and voluntarily?
A. Yes, sir.
Q. Is it entered into by you for the reason that you're guilty of the offense you're charged with?
A. Yes, sir.
Q. You're represented by Mr. Smith. Are you satisfied with his representation of you in this case?
A. Yes, sir.
Q. Has he done for you everything you've asked him to do in regards to representing you in this case?
A. Yes, sir.
Q. Has he failed to do for you anything you've asked him to do in acting as your attorney in this case?
A. No, sir.
In Boxx v. State, 857 S.W.2d 425 (Mo.App.1993), movant alleged that ineffectiveness of counsel in failing to subpoena witnesses for trial caused him to plead guilty. The court said:
Defendant's claim of ineffective assistance of counsel for failure of his trial counsel to subpoena witnesses is refuted by the record. Defendant admitted the crime under oath. Therefore, testimony of witnesses who state he did not commit the crime would be of little benefit. Also, at the time of the plea hearing, Defendant would have known his trial counsel failed to subpoena his witnesses. Yet, he stated he was satisfied with his trial counsel's services. He also stated no one was forcing him to plead guilty or promising him anything in return for his plea. Defendant's belated claim of ineffective assistance of counsel is waived.
Id. at 427. The same reasoning applies in the instant case. See also Townsend v. State, 854 S.W.2d 496, 497-98 (Mo.App.1993).
In addition, Movant's amended motion, after alleging that trial counsel failed to investigate the potential witnesses, stated that "[h]ad trial counsel investigated and realized that movant had a defense to the charge of receiving stolen property, there is a reasonable probability a recommendation would not have been made that movant enter a plea of guilty and the result ... would have been different." This does not amount to an allegation that Movant would not have pleaded guilty but for the alleged ineffectiveness of counsel. In a guilty plea situation, an evidentiary hearing is not required in the absence of such an allegation. Rice v. State, 585 S.W.2d 488, 493 (Mo. banc 1979); Grove v. State, 772 S.W.2d at 395; Looney v. State, 755 S.W.2d 692, 697 (Mo.App.1988).
Movant also contends he was entitled to an evidentiary hearing because of the allegation in his amended motion that trial counsel was ineffective by telling him that the State would amend the information and also charge him as a prior offender, with the result that he would be required to serve a minimum of forty percent of his sentence pursuant to § 558.019, when in fact that statute applied only to Class A or B felonies and not to a Class C felony with which he was charged. He alleges that he "was prejudiced because this coercive action taken by trial counsel resulted in movant not entering a knowing, voluntary or intelligent plea" and that "[h]ad trial counsel properly advised movant on the sentencing statutes as they applied to his case, there is a reasonable probability that the result of Camden County Case Number CR286-2371FX would have been different."
To be entitled to an evidentiary hearing, however, a movant, among other things, must plead "facts, not conclusions, which, if true, would entitle him to relief." Rice v. State, 585 S.W.2d at 492; Short v. State, 771 S.W.2d at 863. In addition, movant's reliance on the alleged advice must have been reasonable. Torrence v. State, 861 S.W.2d 149, 150 (Mo.App.1993); Holt v. State, 811 S.W.2d 827, 828 (Mo.App.1991).
With reference to the instant contention, Movant did not allege and the record does not reflect that he was a prior offender within the definition of § 558.019 and therefore could possibly have been misled. Likewise, there is no allegation that he was unaware of the falsity of these statements when they were made. Such proof would be necessary for Movant to succeed on this allegation at an evidentiary hearing. Also, it should have been pleaded. The amended motion is further lacking because it contains no allegation that the guilty plea would not have been entered except for this misinformation. 4 In the absence of such allegations, we conclude that the motion court did not err in denying an evidentiary hearing on this point.
Movant also contends that the motion court erred in denying his amended motion without an evidentiary hearing because a factual basis...
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