Williams v. State, 54722

• Court: Missouri Court of Appeals
• Writing for the Court: PUDLOWSKI; CARL R. GAERTNER, J., and SIMEONE
• Citation: Williams v. State, 760 S.W.2d 200 (Mo. App. 1988)
• Decision Date: 15 November 1988
• Docket Number: No. 54722,54722
• Parties: Andre WILLIAMS, Appellant, v. STATE of Missouri, Respondent.

Page 200

760 S.W.2d 200

Andre WILLIAMS, Appellant, v. STATE of Missouri, Respondent.

No. 54722.

Missouri Court of Appeals,

Eastern District,

Division Five.

Nov. 15, 1988.

Melinda K. Pendergraph, Columbia, for appellant.

William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.

PUDLOWSKI, Chief Judge.

Appeal is taken from the trial court's grant of summary judgment denying movant's 27.26 motion without an evidentiary hearing. On August 9, 1983, movant pled guilty to second degree robbery and to two counts of escape from confinement. Pursuant to a plea agreement, the court sentenced him to fourteen years on the robbery charge and to three and two years on the escape counts. The sentences run concurrently.

On November 2, 1987, movant filed a pro se 27.26 motion alleging ineffective assistance of counsel and lack of jurisdiction over one of the escape from confinement charges. The motion court appointed counsel who filed amended motions alleging that appellant's guilty plea to robbery was made involuntarily due to ineffective assistance of counsel. Specifically alleging that trial counsel advised movant that because the victim was white, he would receive life imprisonment if he pursued trial; that movant's alibi witness was not a good witness because she was his girlfriend; and that counsel told movant how to respond to the court's questions regarding the voluntariness of his guilty plea.

The trial court, entering findings of fact and conclusions of law, granted the state's motion for summary judgment without an evidentiary hearing. Movant appeals.

Movant contends that his allegations that counsel advised him he would receive a life sentence if he exercised his right to a jury trial coupled with his allegation that counsel coached him on responses to the court's questions when he pled guilty were not clearly refuted by the record and were relevant as to whether his guilty plea was knowing, voluntary and intelligent. Movant is convinced the trial court therefore committed clear error in denying his 27.26 motion without an evidentiary hearing.

Appellate review of post-conviction relief is limited to a determination of whether the findings, conclusions and judgments of the hearing court are clearly erroneous. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987); Missouri Supreme Court Rule 27.26(j). Such findings and conclusions are deemed clearly erroneous only if, after review of the entire record, the appellate court is left with a definite and firm impression that a mistake has been made. Sanders, 738 S.W.2d at 857. Where the accused has entered a plea of guilty, adequacy of representation is material only if ineffective representation has affected the voluntariness and understanding of the plea. Hemme v. State, 680 S.W.2d 734, 736 (Mo.App.1984).

A movant is entitled to an evidentiary hearing if, (1) he alleges facts in his motion which, if true, would entitle him to relief; (2) those facts alleged are not conclusively refuted by the record; and (3) the matters complained of resulted in prejudice. State v. Motsinger, 728 S.W.2d 633, 634 (Mo.App.1987). Where a motion to vacate a sentence pursuant to Rule 27.26 does not state facts sufficient to entitle movant to any relief, the petition may properly be overruled and a motion for summary judgment...