Wright-El v. State, WRIGHT-E

• Decision Date: 13 December 1994
• Docket Number: A,WRIGHT-E,No. 65151,65151
• Parties: Stevenppellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 664

890 S.W.2d 664

Steven WRIGHT-EL, Appellant, v. STATE of Missouri, Respondent.

No. 65151.

Missouri Court of Appeals,

Eastern District,

Division One.

Dec. 13, 1994.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Jan. 25, 1995.

David C. Hemingway, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Becky Owenson Kilpatrick, Asst. Atty. Gen., Jefferson City, for respondent.

GARY M. GAERTNER, Judge.

Appellant, Steven Wright-El, appeals from the St. Louis County Circuit Court's denial of his Rule 24.035 motion without an evidentiary hearing. We remand for an evidentiary hearing to determine whether a prior stealing conviction of appellant was subsequently vacated, and whether failure of appellant's counsel to raise this point at the plea hearing constituted ineffective assistance of counsel. We affirm in all other respects.

On December 13, 1992, appellant was arrested for shoplifting and misdemeanor assault. The State charged appellant by information with stealing, third offense, in violation of RSMo § 570.040 (1986) and third degree assault in violation of RSMo § 565.070 (1986).

Under RSMo § 570.040.1, a defendant with two prior convictions for stealing is guilty of a Class C felony upon a third conviction for stealing. The State set out two prior stealing convictions of appellant in its information: a July 16, 1986, conviction in Division 7 of St. Louis County Circuit Court, and an October 8, 1987, conviction in Division 16 of St. Louis County Circuit Court.

The State subsequently filed an amended information adding a third count seeking enhancement of the Class C felony sentencing range, on the grounds that appellant was a persistent offender pursuant to RSMo § 558.016. (Supp.1994). ¹ The State based its persistent offender charge on a July 16, 1986, conviction for receiving stolen property, and the October 8, 1987, conviction for stealing referred to above.

The trial began on May 4, 1993. Before the jury was called in, the court held a hearing for purposes of negotiating a plea. Appellant, representing himself after refusing the services of appointed counsel, objected to the State's attempts to prove appellant's prior stealing convictions and his status as a persistent offender. Appellant argued that his actual conduct was a misdemeanor, and that he could only be charged as a persistent misdemeanor offender. See RSMo § 558.016.5. Appellant also objected to the State's "stacking" of enhancement statutes.

The State's amended information used appellant's October 8, 1987, stealing conviction to both upgrade appellant's current offense to a Class C felony, and to enhance appellant's status to that of a persistent offender. The prosecutor orally requested, and was granted, leave to remedy this defect through amendment by interlineation. The prosecutor crossed out the prior October 8, 1987, conviction for stealing and replaced it with a prior June 25, 1976, conviction for armed robbery, so that the amended information alleged four separate prior convictions.

The State offered certified copies of court records as proof of appellant's prior convictions. Exhibit 1-A showed that on July 17, 1986, appellant pled guilty to and was sentenced in Cause No. 540827, Division 7, St. Louis County for stealing, third offense, committed on June 20, 1985. Exhibit 2-A consisted of the judgment and sentence rendered against appellant on October 8, 1987, in Cause No. 539872, Division 16, St. Louis County for felony stealing. The State offered these convictions to upgrade its current charge against appellant from a Class A misdemeanor to the Class C felony of stealing third offense, pursuant to RSMo § 570.040.

Exhibit 3-A evidenced appellant pled guilty on July 16, 1986, in Cause No. 534358, to the felony of receiving stolen property, committed on January 30, 1985. Exhibit 4-A showed appellant pled guilty on June 25, 1976, in Cause No. 76-904-C, to first degree armed robbery, committed on March 19, 1976. The State offered these two convictions to prove appellant's persistent offender status and justify enhancement of his sentence per RSMo § 558.016.

Appellant objected twice to the admission of these convictions, asserting they were inapplicable to the crime for which he was actually arrested, a misdemeanor. The court overruled appellant's objections and received the State's exhibits. The court then found appellant to be a persistent offender, and issued a separate finding of fact to this effect pursuant to RSMo. § 558.021 (Supp.1994).

Appellant moved for a continuance, which the trial court denied. Appellant then "rehired" the public defender originally assigned to represent him. Considerable debate ensued between appellant, appellant's counsel, the prosecutor and the court as to appellant's status as a persistent felony offender and the maximum applicable sentence. At one point the jury was called in and a trial nearly begun. Appellant eventually entered Alford ² pleas of guilty to stealing third offense and third degree assault. After finding appellant voluntarily and intelligently pled guilty, the court sentenced appellant to seven years on the stealing count and one year on the assault count, said terms to run concurrently.

On May 28, 1993, appellant filed a pro se Rule 24.035 motion to set aside his conviction for stealing third offense. ³ On September 20, appointed counsel filed an amended motion incorporating the points raised in the pro se motion and raising several others. On October 14, appellant filed a motion requesting that the judge disqualify herself, which was contemporaneously denied. The court also denied appellant's request for an evidentiary hearing. On October 25, the court entered findings of fact and conclusions of law, denying appellant's motion for post-conviction relief. This appeal followed.

Appellant raises six points on appeal. Appellant's first two points concern the prior stealing convictions set out in the State's amended information and used as the basis for the State's charge of stealing, third offense.

For his first point, appellant contends the motion court clearly erred by characterizing, as "a bare assertion and unsupported by documentation," appellant's claim that the trial court erred in accepting his plea of guilty to stealing, third offense. Appellant alleges the State pled and proved an invalid prior stealing conviction to enhance his underlying misdemeanor to the felony of stealing, third offense. According to appellant, the July 16, 1986, conviction used by the State in its amended information had been set aside in a Rule 27.26 proceeding prior to the plea in this case. Appellant argues Rule 24.035 does not require him to provide "documentation"--or any other form of proof--of this claim prior to an evidentiary hearing. We agree.

A movant is entitled to an evidentiary hearing if he or she alleges facts, not conclusions, warranting relief; those facts are not conclusively refuted by the record; and the matters complained of resulted in prejudice to the movant. Rule 24.035(g); White v. State, 781 S.W.2d 167, 168 (Mo.App.E.D.1989). There is no requirement that a movant provide "documentation" of the allegations he or she raises in a Rule 24.035 motion in order to be entitled to an evidentiary hearing. Such a requirement would in fact contradict the very purpose for such hearings.

Addressing the merits of appellant's allegation, we note that a movant who has pled guilty is entitled to relief if an invalid conviction was used to enhance the movant's sentence. McDaris v. State, 843 S.W.2d 369, 374 (Mo. banc 1992). The record before us does not conclusively refute appellant's contention that his July 16, 1986, stealing conviction, set out in the State's amended information, was vacated and therefore invalid for purposes of enhancing appellant's underlying misdemeanor theft to stealing, third offense.

We reach this conclusion despite appellant's misleading assertion that our decision in Wright-El v. State, 760 S.W.2d 488 (Mo.App.E.D.1988) corroborates his claim that the conviction was set aside in a Rule 27.26 proceeding. The facts in that decision show the motion court did not vacate appellant's July 16, 1986, conviction, but merely ordered a resentencing hearing on whether appellant was a persistent offender. Id. at 489. The resentencing hearing was held on October 8, 1987, wherein the State submitted seven prior authenticated convictions; appellant was then resentenced as a persistent offender to four concurrent nine-year terms. Id. This Court affirmed. Id.

The inquiry does not end there, however. The record does not conclusively refute appellant's contention that his July 16, 1986, conviction was vacated in a Rule 27.26 proceeding held subsequent to the October 8, 1987 resentencing hearing. Rule 27.26, which was repealed and replaced by Rule 29.15, permitted successive post-conviction motions. See Rule 27.26(d) (repealed); contra Rule 29.15(k). Rule 29.15 went into effect January 1, 1988, but provided that any Rule 27.26 motions still pending on that date would be governed by the provisions of Rule 27.26 in effect on the date such motions were filed. See Rule 29.15(m).

There is the theoretical possibility that appellant did file another Rule 27.26 motion for post-conviction relief after the October 8 1987, resentencing hearing but prior to Rule 29.15's January 1, 1988, effective date. It is also possible that the July 16, 1986, stealing conviction was vacated as a result. Because invalid convictions may not be used to enhance punishment, the trial court would not have had the power to impose the Class C felony sentence for stealing, third offense if that conviction had in fact been set aside. See McDaris v. State, 843 S.W.2d at 374.

We believe an evidentiary hearing is necessary to resolve this question. We accordingly remand to the motion court for a determination as to whether a Rule 27.26 motion filed after appellant's October...