Wharton v. State

• Decision Date: 13 May 2014
• Docket Number: No. ED 99652.,ED 99652.
• Citation: 431 S.W.3d 1
• Parties: Marcus WHARTON, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

431 S.W.3d 1

Marcus WHARTON, Appellant,
v.
STATE of Missouri, Respondent.

No. ED 99652.

Missouri Court of Appeals,
Eastern District,
Division One.

May 13, 2014.

[431 S.W.3d 2]

Maleaner Harvey, St. Louis, MO, for appellant.

Chris Koster, Evan J. Buchheim, Jefferson City, MO, for respondent.

ROY L. RICHTER, Presiding Judge.

Marcus Wharton (“Movant”) appeals from the motion court's judgment, without an evidentiary hearing, denying his Rule 24.035 motion for post-conviction relief. Movant pled guilty to four counts of robbery in the first degree, in violation of Section 569.020, and four counts of armed criminal action, in violation of Section 571.015. He was sentenced to a total of 18 years of imprisonment in the Missouri Department of Corrections. We affirm.

I. Background

Movant was charged by substitute information in lieu of indictment with four counts of robbery in the first degree and four counts of armed criminal action, relating

[431 S.W.3d 3]

to three incidents that occurred in July 2009, involving four separate victims. Movant was charged as a prior and persistent offender. On January 23, 2012, Movant pled guilty as charged.

Movant told the plea court that he wished to enter a blind plea of guilty to the charges, stating that his plea counsel (“Plea Counsel”) had explained charges and that he understood them. Movant agreed that he had spoken enough with his Plea Counsel in deciding whether to plead guilty to the charges. The court explained to Movant the trial rights he would be waiving by pleading guilty, and Movant stated he understood those rights and agreed he was voluntarily waiving them.

The prosecutor explained the factual basis for the charges, after which Movant admitted were true, and that he had no corrections. The prosecutor stated that Counts I and II related to a robbery on July 11, 2009, at a Family Dollar Store, wherein Movant stole cash while an accomplice displayed a deadly weapon. Counts III through VI related to two robberies occurring on July 16, 2009, at Game Stop, in which Movant and two accomplices, also using a deadly weapon, forcibly stole cash from one victim and a Wii videogame console from another victim. Counts VII and VIII related to a robbery occurring on July 1, 2009, at a Cricket store located next to the Family Dollar Store involved in the first and second counts. Movant and the same accomplice from Counts I and II forcibly stole cash, also using a deadly weapon, from the victim clerk who later identified Movant and the accomplice.

Movant was informed the range of punishment was 10 to 30 years or life imprisonment for the first-degree robbery charges, and 3 years to any number of years or life for the armed criminal action charges. Movant stated he discussed the ranges of punishment with his Plea Counsel and that he understood them. The State deferred making a sentencing recommendation until reviewing the sentencing assessment report (“SAR”). Movant agreed that his Plea Counsel had explained to him that sentencing would occur following completion of the SAR, and that his Plea Counsel had explained that the court would decide what sentences to impose, from the minimum to the maximum punishment range. Movant stated that no one had made any promises about sentencing or probation to induce his guilty plea. He agreed that no one had told him that the judge had made any promises. Movant agreed that he understood that the judge was not required to follow the SAR, and that he could not take back his guilty plea if he did not like the judge's decision. Movant confirmed that he told his lawyer all the facts surrounding the case, and that Plea Counsel had fully answered his questions and did everything that Movant had asked of him. Movant stated that no one had told him to lie to the court.

Further, Movant agreed that he had no complaints against Plea Counsel. He agreed that Plea Counsel had contacted the potential witness, whom Plea Counsel had endorsed. Movant also answered that no one had threatened or mistreated his family to induce his guilty plea. He pled guilty as charged and stated that he was doing so under his own free will. The court accepted Movant's guilty pleas and ordered an SAR. On May 11, 2012, the court sentenced Movant to concurrent 18–year sentences on all eight counts.

Movant filed his pro se Rule 24.035 motion on June 11, 2012. Appointed counsel filed Movant's Rule 24.035 amended motion on December 20, 2013. The motion court denied Movant's motion without an evidentiary hearing and entered a judgment on January 24, 2013. This appeal follows.

[431 S.W.3d 4]

II. Discussion

Movant raises two points on appeal. In his first point, he alleges the motion court clearly erred in denying his Rule 24.035 post-conviction relief motion without an evidentiary hearing because he alleged facts, not conclusions, which if proven, would warrant relief and were not conclusively refuted by the file and record. Movant claims he was denied his rights to due process of law and effective assistance of counsel, as guaranteed by the Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution. Movant claims that his Plea Counsel was ineffective for assuring Movant the court would sentence him to a term of imprisonment of ten years on each count, to run concurrently. Movant alleges he reluctantly entered a plea of guilty because he believed the court would sentence him in line with Plea Counsel's assurances. Movant states that had he known the plea court would sentence him to a total of 18 years of imprisonment, he would not have pled guilty, but would had insisted on taking his case to trial.

In his second point, Movant alleges the motion court clearly erred in denying Movant's motion for post-conviction relief under Rule 24.035 without an evidentiary hearing because he alleged facts, not conclusions, which if proven, would warrant relief and were not conclusively refuted by the file and record. Movant contends he was denied his rights to due process of law and effective assistance of counsel as guaranteed by the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution and Article I, Sections 10 and 18(a) of the Missouri Constitution in that he was pressured by Plea Counsel to enter a plea of guilty even though he wanted to proceed to trial to prove he did not participate in the commission of the charged offense. Movant further claims his guilty plea was not voluntarily, knowingly and intelligently made because it was the result of Plea Counsel's use of persuasion to pressure him...