Roberts v. State

Gary Roberts (“Movant”) appeals from a judgment overruling his Rule 24.035 motion for post-conviction relief without an evidentiary hearing.1 This Court finds that the motion court erred in overruling his motion without an evidentiary hearing. The motion court’s judgment is reversed, and the cause is remanded.

I. Background

As part of a group guilty plea,2 Movant pleaded guilty to two counts of possession *835of a controlled substance in violation of section 195.202, RSMo 2000.3 Before his plea hearing, his counsel sent him a note stating: “I got you an offer for [14] years with no opposition to your receiving drug and alcohol treatment.”4 At the plea hearing, the State noted that it did not plan to oppose institutional treatment for Movant if it was recommended. Movant, along with the other group plea defendants, indicated that he understood his plea, and his counsel did not object to the State’s description of the plea. Ultimately, however, Movant was not recommended for institutional treatment. He was sentenced to two consecutive seven-year terms of imprisonment. He expressed no dissatisfaction with his attorney at the time of his sentencing.

Movant timely sought post-conviction relief under Rule 24.035. He argued that his plea was not entered voluntarily because the State altered its agreement to not oppose his entering an institutional treatment program. He claimed he was prejudiced when the State changed the terms of his plea agreement by adding the caveat if recommended. He also asserted that his counsel was ineffective for failing to object to the State’s mischaracterization of the plea agreement or for failing to request withdrawal of the plea.

The motion court rejected Movant’s request for post-conviction relief without an evidentiary hearing. It found that his claims were “utterly without merit” and “refuted by the record” because he had indicated at the group plea that he understood his plea and had no questions about it. The motion court also found that the plea agreement was honored as Movant understood it, such that there was no need for his counsel to object to it or request that it be withdrawn.

II. Standard of review

This Court’s review of a denial of a post-conviction motion under Rule 24.035 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); Soto v. State, 226 S.W.3d 164, 166 (Mo. banc 2007). The motion court’s findings and conclusions are clearly erroneous only if, after review of the record, the appellate court is left with the definite and firm impression that a mistake has been made. Soto, 226 S.W.3d at 166. Movant has the burden to show by a preponderance of the evidence that the motion court clearly erred in its ruling. Melton v. State, 260 S.W.3d 882, 885 (Mo.App.2008).

To show he was entitled to an evidentiary hearing on his Rule 24.035 motion, Movant must show that (1) he alleged facts, not conclusions, warranting relief; (2) the facts alleged raise matters not refuted by the files and record of his case; and (3) the matters complained of resulted in prejudice to him. Wilkes v. State, 82 S.W.3d 925, 928 (Mo. banc 2002). “An evidentiary hearing may only be denied when the record conclusively shows that the movant is not entitled to relief.” Id. (citing Rule 29.15(h), which is the counterpart to Rule 24.035(h), the rule applicable to Rule 24.035 motions).

III. Movant is entitled to an evidentia-ry hearing based on his allegations that his counsel was ineffective

Movant argues that he was entitled to an evidentiary hearing on his postconvic*836tion motion because he alleged facts that, if true, would demonstrate that his counsel was ineffective for failing to object to the State’s addition of the caveat “if recommended” to his plea agreement or for failing to have his plea withdrawn based on the State’s alteration of the plea terms.

Movant can prevail on this claim of ineffective assistance of counsel if he shows that his counsel’s representation fell below an objective standard of reasonableness and that, as a result, he was prejudiced. Stuart v. State, 268 S.W.3d 755, 757 (Mo.App.2008). He “must show, but for the conduct of his [plea counsel] about which he complains, he would not have pleaded guilty but would have insisted on going to trial.” Id. (internal citations omitted). After his negotiated plea of guilty, Movant’s “claim of ineffective assistance of counsel is immaterial except to the extent it impinges upon the voluntariness and knowledge with which the guilty plea was made.” Id. (internal citations omitted).

A plea must be a voluntary expression of the defendant’s choice and a knowing and intelligent act done with sufficient awareness of the relevant circumstances and likely consequences of the act. State v. Hunter, 840 S.W.2d 850, 861 (Mo. banc 1992). “A plea of guilty is not made voluntarily if the defendant is misled, or is induced to plead guilty by fraud or mistake, by misapprehension, fear, persuasion, or the holding out of hopes which prove to be false or ill founded.” Bequette v. State, 161 S.W.3d 905, 907-08 (Mo.App.2005) (internal citations omitted).

Plea agreements should be the product of fair negotiations and should meet reasonable expectations of both the prosecution and the defendant. See Schellert v. State, 569 S.W.2d 735, 739 (Mo. banc 1978). “ ‘[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.’ ” Id. at 738 (quoting Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971)). If the prosecutor fails to fulfill a promise that induced a post-conviction movant’s guilty plea, the movant is entitled to relief. North v. State, 878 S.W.2d 66, 67 (Mo.App.1994).

Movant alleges that his plea was rendered unknowingly because the State altered the specifics of its plea agreement with him at the plea hearing. He alleges that he understood that the State would “stand silent” about his entering an institutional treatment program, but he argues that it instead highlighted that Movant was not recommended for treatment. The prosecutor’s comments stating that institutional treatment was not opposed if it was recommended could be taken as statements in opposition because Movant was not recommended for institutional treatment.

Movant contends that his counsel failed to act with the customary skill and diligence that a reasonably competent attorney would have demonstrated after the State mischaracterized his plea agreement. He argues that an effective counsel would have objected or sought withdrawal of the plea.

Movant suggests that he was confused by the State’s characterization of his plea agreement because his plea was entered as part of a group guilty plea with eight other unrelated defendants.5 He *837highlights that his counsel simultaneously was representing six of the unrelated defendants at this group plea proceeding. There is no doubt that group plea proceedings like the one in which Movant’s plea was entered unnecessarily increase the opportunities for mistakes or confusion. And, in the context of such a group plea proceeding, minor alterations to the terms of a plea agreement might be missed or misunderstood by defendants or counsel. Absent a group plea setting, Movant would have little room to assert confusion about his plea.

Rule 24.035(h) instincts that a motion court should deny a post-conviction movant an evidentiary hearing if the record conclusively shows he is not entitled to relief. The record in Movant’s case, however, does not show conclusively he was not entitled to relief. Movant has sufficiently pleaded facts that, if true, support his allegations that his counsel was ineffective for faffing to object or seek withdrawal of his plea after there was a discrepancy between the plea negotiation his counsel had informed him about prior to his plea hearing and the prosecutor’s presentation of the plea arrangement in court. He has sufficiently pleaded that his counsel’s alleged failures impacted the voluntariness of his plea. As such, this Court finds that the motion court clearly erred in denying Movant an evidentiary hearing in this case.6

IV. Conclusion

The motion court’s judgment is reversed, and the cause is remanded.