Vanzandt v. State

• Decision Date: 31 January 2007
• Docket Number: No. 27536.,No. 27538.,27536.,27538.
• Citation: 212 S.W.3d 228
• Parties: David VANZANDT, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

212 S.W.3d 228

David VANZANDT, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.

No. 27536.

No. 27538.

Missouri Court of Appeals, Southern District, Division Two.

January 31, 2007.

Craig Allan Johnston, Columbia, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Dora A. Fichter, Asst. Atty. Gen., Jefferson City, MO, for respondent.

JEFFREY W. BATES, Chief Judge.

This is a consolidated appeal from orders in two separate cases denying the request of David Vanzandt (Vanzandt) for post-conviction relief pursuant to Rule 24.035.¹ We affirm.

I. Factual and Procedural Background

In the first case, Vanzandt pled guilty in May 2002 to one count of manufacturing methamphetamine (the drug case). See § 195.211. He was sentenced to serve six years in prison, but execution of the sentence was suspended. The court placed Vanzandt on five years supervised probation. In the second case, Vanzandt pled guilty in April 2003 to one count of statutory sodomy in the first degree (the sodomy case). See § 566.062. Imposition of sentence was suspended, and Vanzandt was placed on five years supervised probation. In each case, it was a condition of Vanzandt's probation that he not use any controlled substance except as prescribed for him by a licensed medical practitioner.

In September 2003, Vanzandt admitted during a random drug test that he had used marijuana. A probation-revocation hearing was held in December 2003. The trial court found that Vanzandt had violated a condition of his probation in both cases by using marijuana. In the drug case, Vanzandt was ordered to serve the previously suspended six-year sentence. In the sodomy case, he was sentenced to serve fifteen years in prison.

In March 2004, Vanzandt filed a timely pro se Rule 24.035 motion for post-conviction relief in each case. Appointed counsel timely filed separate amended motions, and counsel's request to consolidate the post-conviction cases was granted. In September 2005, the motion court conducted an evidentiary hearing. In January 2006, the court entered separate orders denying post-conviction relief in each case. This appeal followed. Additional facts necessary to the disposition of the case are included below as we address Vanzandt's two points of error.

II. Standard of Review

Appellate review of an order overruling a Rule 24.035 motion for post-conviction relief is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 24.035(k); Mendez v. State, 180 S.W.3d 75, 79 (Mo.App.2005). We presume the motion court's findings and conclusions are correct. Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991). Findings and conclusions are clearly erroneous only if, after a review of the entire record, we are left with the definite and firm impression that a mistake has been made. Id. Vanzandt bore the burden of proving the grounds asserted for post-conviction relief by a preponderance of the evidence. Rule 24.035(i); Harris v. State, 184 S.W.3d 205, 209 (Mo.App.2006).

To prevail on a claim of ineffective assistance of counsel, Vanzandt must show that counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances and that Vanzandt was thereby prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Harris, 184 S.W.3d at 209. "In the context of a guilty plea, a movant establishes prejudice due to ineffective assistance of counsel by demonstrating that a reasonable probability exists that, but for plea counsel's errors, the movant would not have entered a guilty plea and would have insisted on proceeding to trial." Copas v. State, 15 S.W.3d 49, 54 (Mo.App.2000); State v. Nunley, 980 S.W.2d 290, 292 (Mo. banc 1998).

As with any guilty plea, a claim of ineffective assistance of counsel is immaterial, except to the extent that it infringes upon the voluntariness and knowledge with which the guilty plea was made. Hagan v. State, 836 S.W.2d 459, 463 (Mo. banc 1992); Cook v. State, 193 S.W.3d 378, 382 (Mo. App.2006). On a claim of ineffective assistance of counsel, the motion court is free to believe or disbelieve any evidence, whether contradicted or undisputed, including Vanzandt's testimony. Krider v. State, 44 S.W.3d 850, 858 (Mo.App.2001). This Court defers to the motion court on matters of credibility. Id.; Cook, 193 S.W.3d at 387.

III. Discussion and Decision

On appeal, Vanzandt presents one point related to each conviction and sentence. For ease of analysis, we will address the points in reverse order.

Point II: The Drug Case

In February 2002, Vanzandt was charged by information with one count of manufacturing a controlled substance (Count I) and two counts of possession of a controlled substance (Counts II and III). On May 9, 2002, Vanzandt entered a plea of guilty to Count I of the information pursuant to a plea agreement. According to the plea petition, Vanzandt understood the range of punishment was "five to fifteen years imprisonment[.]" The plea petition further specified: "Sentence will not exceed five years, State will dismiss Counts II and III and will not oppose recommendation of Probation & Parole in presentence investigation."

At the plea hearing, defense counsel informed the plea court: "My understanding upon a plea of guilty to Count I, which we're entering at this time, the State will nolle pros Counts II and III, and recommend a five-year cap on Count I, and then will not oppose any recommendation by Probation and Parole in the presentence investigation." The State agreed that was a correct summary of the plea agreement.

The court reviewed the plea petition and questioned Vanzandt about his understanding of the plea agreement:

Q It says on [the plea petition] that sentence will not exceed five years. You understand if you are put on probation and not sent to the penitentiary, the sentence that's suspended on probation could be more than five years? You understand this?

A Yes, sir.

Q Your range is from 5 to 15, so anything in that range. However, if you did go to the penitentiary, your sentence could not be more than five years. Is that your understanding?

A Yes, sir.

The plea court accepted Vanzandt's plea and ordered a presentence investigation report.

In June 2002, the sentencing hearing was held. The presentence investigation report recommended probation, which the State did not oppose. The court placed Vanzandt on supervised probation for five years. The court added, without any objection from plea counsel or Vanzandt: "You do have a sentence within the Department of Corrections of six years. That's suspended." As noted above, Vanzandt later violated a condition of his probation by using marijuana. The court revoked Vanzandt's probation and ordered execution of his sentence.

Vanzandt's amended Rule 24.035 motion concerning the drug case alleged, inter alia, that plea counsel was ineffective for failing to object to the imposition of a sentence greater than that provided in the plea bargain. At the evidentiary hearing, Vanzandt testified that his understanding of the plea bargain was that he was to receive "[f]ive years probation and five years cap. . . ." He testified that if he had thought he was going to get more than five years, he would have gone to trial. Vanzandt's plea counsel, on the other hand, testified that he did not object to the imposition of the six-year suspended sentence because his understanding was that the "five-year cap" applied only if the court denied probation and ordered Vanzandt's immediate confinement. Counsel testified that he explained this to Vanzandt. Consistent with that testimony, the transcript of the sentencing hearing does not reveal any protest by Vanzandt when the plea court imposed a six-year suspended sentence in conjunction with the grant of probation.

The motion court denied relief because Vanzandt failed to meet his burden of proof. The court concluded that "[c]ounsel was not ineffective because under the plea agreement, if movant was granted probation at sentencing he could receive a suspended execution of sentence anywhere from five to fifteen years." As support for that conclusion, the court pointed to Vanzandt's testimony at the plea hearing that he understood his suspended sentence could be longer than five years if he were granted probation.

In Vanzandt's second point on appeal, he argues the motion court's ruling was clearly erroneous because the six-year suspended sentence imposed by the court violated the plea bargain. We disagree.

Vanzandt's claim that he received a heavier sentence than he expected does not entitle him to relief absent proof that: (1) he held a mistaken belief about the sentence he was supposed to receive pursuant to the plea bargain; (2) this mistake was based upon a positive misrepresentation upon which he was entitled to rely; and (3) the mistake was reasonable. Talley v. State, 146 S.W.3d 465, 467 (Mo.App. 2004). The motion court found that the imposition of a six-year suspended sentence did not violate the plea bargain because Vanzandt was placed on probation as he requested. Vanzandt's plea counsel testified that the "five-year cap" on sentencing in the plea agreement applied only if probation was denied and Vanzandt was sentenced to immediate confinement. The only promise by the State concerning Vanzandt's request for probation was that the State would not oppose a favorable recommendation to that effect in the presentence investigation. Vanzandt and the State had not reached any other agreement concerning the terms and conditions of probation, including the length of any suspended sentence that might be imposed. Plea counsel's testimony was entirely consistent with the plea court's own warning to Vanzandt that he could receive a suspended sentence of between five and fifteen years in prison if probation were granted.

A suspended sentence with...