Wallace v. State, SD 30040.

• Decision Date: 14 April 2010
• Docket Number: No. SD 30040.,SD 30040.
• Citation: 308 SW 3d 283
• Parties: David WALLACE, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

308 SW 3d 283

David WALLACE, Appellant, v. STATE of Missouri, Respondent.

No. SD 30040.

Missouri Court of Appeals, Southern District, Division One.

April 14, 2010.

Kent Denzel, Columbia, for Appellant.

Chris Koster, Atty. Gen. and Mary H. Moore, Asst. Atty. Gen., Jefferson City, for Respondent.

ROBERT S. BARNEY, Judge.

David Wallace ("Movant") appeals the motion court's "Findings of Fact and Conclusions of Law" which denied his Rule 24.035 motion.¹ In his sole point relied on, Movant maintains the motion court clearly erred in denying his Rule 24.035 motion "because the plea court lacked a factual basis to accept his guilty plea ..." when the State "stated in the plea hearing that the item Movant was charged with stealing was an ATM card, not a credit card, which would make the offense a class A misdemeanor." Accordingly, he asserts his guilty plea was unknowingly and unintelligently entered. We affirm the findings and conclusions of the motion court.

Movant was charged via "Information" with the class C felony of stealing, a violation of section 570.030.² The Information charged that "on or about the 11th day of April, 2007, ... Movant appropriated a U.S. Bank ATM Credit Card, which was property owned by the victim, and Movant appropriated such property without the consent of the victim and with the purpose to deprive the victim thereof."

A guilty plea hearing on this charge was held on June 3, 2008. At the hearing, Movant announced he wanted to withdraw his not guilty plea and enter a guilty plea pursuant to a plea agreement negotiated with the State. Movant informed the plea court he understood the terms of the plea agreement to be that the State would recommend a five year sentence with 120-day shock incarceration and he was aware that the range of punishment for the offense was up to seven years imprisonment. He related he understood the charges against him and had discussed the matter at length with his counsel; he stated he understood he had a right to proceed to trial and that by pleading guilty he was giving up that right; he related he was aware that by pleading guilty he was giving up numerous other rights; he relayed he had no complaints about his counsel's representation; and he stated he had not been intimidated or coerced into pleading guilty.

The State then recited the factual basis of the plea. The State informed the plea court that Movant was charged with "appropriating a U.S. Bank ATM Credit card." The State then related the following:

the City of Poplar Bluff Police Department investigated a theft .... It concerned the ATM card mentioned in the... information.

During the investigation it was determined that Movant attempted to use that ATM card ... to obtain cash from an ATM machine.

There was a video surveillance done. The victim knew Movant ... they were acquaintances, and the victim would positively identify Movant as the individual who attempted to use that card. Would further testify that Movant had been in his home and had access to that card.

And while he could not testify directly that Movant stole the card, there's more than enough circumstantial evidence to indicate that, when Movant was in the victim's home, that he did appropriate that card, attempt to use it, did use that card, and he did that with the purpose to deprive the victim of that.

Movant then agreed with the facts as set out by the State and indicated the State's assertions were "true." He further informed the plea court he was pleading guilty because he had, in fact, "used the ATM card" which belonged to the victim. The plea court found his "plea of guilty has been freely and voluntarily entered with an understanding of the nature of the charge, the range of punishment, and the consequences of a plea of guilty." The plea court then sentenced Movant according to the terms of the plea agreement to five years imprisonment as well as 120-day shock incarceration pursuant to section 559.115. However, following completion of Movant's 120-day shock incarceration, the plea court found "it would be an abuse of discretion to release Movant and ordered the execution of the sentence of 5 years."

Movant filed a timely pro se Rule 24.035 motion on September 22, 2008. He was thereafter appointed counsel and his appointed counsel filed a timely "Amended Motion to Vacate, Set Aside or Correct the Judgment and Sentence" which asserted in part that the "State failed to allege facts sufficient to support the offense as charged." The State and Movant's counsel stipulated that an evidentiary hearing would not be necessary and agreed "that the plea transcript taken on June 3, 2008, in the underlying criminal case is the only evidence for the record in this matter." On July 14, 2009, the motion court entered its "Findings of Facts and Conclusions of Law" which denied Movant relief due to his failure "to sustain his burden of proving that the plea hearing was inadequate" on the issue of the factual basis for the plea. This appeal by Movant followed.

Our review of a motion court's decision on a Rule 24.035 motion for postconviction 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); Johnson v. State, 210 S.W.3d 427, 431 (Mo.App.2006). Findings of fact and conclusions of law are clearly erroneous only when, after reviewing the entire record, this Court is left with the definite and firm impression that a mistake has been made. Morehead v. State, 145 S.W.3d 922, 927 (Mo.App.2004). The motion court's findings are presumptively correct. Butts v. State, 85 S.W.3d 132, 134 (Mo.App.2002). "`Movant bears the burden of proving, by a preponderance of the evidence, that the motion court erred.'" Stuart, 263 S.W.3d at 757 (Mo.App.2008) (quoting Huth v. State, 976 S.W.2d 514, 516 (Mo.App.1998)).

Rule 24.02(e) provides that "the court shall not enter a judgment upon a plea of guilty unless it determines that there is a factual basis for the plea." The recital of a factual basis for the charge helps to ensure the guilty plea is knowing and voluntary. Carmons v. State, 26 S.W.3d 382, 384 (Mo.App.2000). A factual basis for a guilty plea exists if the defendant understands the facts recited at the plea hearing, those facts establish the commission of the charged crime, and the defendant is aware of the nature of the charges. Calvin v. State, 204 S.W.3d 220, 225 (Mo.App.2006); Lawrence v. State, 209 S.W.3d 515, 520 (Mo.App.2006). "A defendant is not required to admit or to recite the facts constituting the offense in a guilty plea proceeding, so long as a factual basis for the plea exists." Brown v. State, 45 S.W.3d 506, 508 (Mo.App.2001). Further, "`a plea court is not required to explain every element of a crime to which a person pleads guilty so long as the defendant understands the nature of the charge.'" Daniels v. State, 70 S.W.3d 457, 461 (Mo.App.2002) (quoting State v. Taylor, 929 S.W.2d 209, 217 (Mo. banc 1996)). The factual basis need not be established from the defendant's own words or by his admission of the facts recited by the State as long as a factual basis exists on the record as a whole. Kennell v. State, 209 S.W.3d 504, 506 (Mo.App.2006). "`If the facts presented to the court during the guilty plea hearing do not establish the commission of the offense, the court should reject the guilty plea.'" Smith v. State, 141 S.W.3d 108, 111 (Mo.App.2004) (quoting Brown, 45 S.W.3d at 508). "Our focus is on whether the plea was made intelligently and voluntarily...