Opinion
No. WD 54000
ORDER FILED: February 3, 1998
APPEAL FROM CIRCUIT COURT OF BOONE, MISSOURI, THE EUGENE C. HAMILTON, JUDGE.
Andrew Allen Schroeder, Esq., Kansas City, MO Attorney for Appellant.
John Munson Morris, Esq., Jefferson City, MO Attorney for Respondent.
Before: Lowenstein, P.J., Breckenridge and Hanna, JJ.
ORDER
Appellant pled guilty to two counts of forgery and one count of hindering prosecution. Appellant filed pro se Rule 24.035 motion that the guilty plea was not voluntary.
Judgment affirmed.
MEMORANDUM OF REASONS FOR ORDER AFFIRMING PURSUANT TO RULE 30.25(b)
This memorandum is for the information of the parties and sets forth the reasons for the order affirming the conviction on this appeal.
THIS STATEMENT DOES NOT CONSTITUTE A FORMAL OPINION OF THIS COURT. IT IS NOT UNIFORMLY AVAILABLE. IT SHALL NOT BE REPORTED, CITED, OR OTHERWISE USED IN UNRELATED CASES BEFORE THIS COURT OR ANY OTHER COURT. IN THE EVENT OF THE FILING OF A MOTION TO REHEAR OR TRANSFER TO THE SUPREME COURT, A COPY OF THIS MEMORANDUM SHALL BE ATTACHED TO ANY SUCH MOTION .
On June 20, 1996, appellant, Mary Harris-Hayes, was charged as a persistent offender by amended information with two counts of forgery, § 570.090 , and one count of hindering prosecution, § 570.030. Appellant pled guilty to all three counts. The trial court sentenced Harris-Hayes to consecutive terms of seven years imprisonment on the two counts of forgery, and to a concurrent term of five years imprisonment on the count of hindering prosecution. Harris-Hayes timely filed a pro se Rule 24.035 motion to vacate her guilty plea on September 12, 1996.
All statutory references are to RSMo. 1994 unless otherwise indicated.
Postconviction counsel filed an amended motion alleging that Harris-Hayes did not knowingly and voluntarily enter her guilty plea, and that she was denied her right to the effective assistance of counsel. Specifically, Harris-Hayes claimed that her plea counsel "coerced and misled her into pleading guilty" by telling her that she would be paroled after serving six to eight months in prison. She claims that had she known she would have to serve more than six to eight months in prison before she could be expected to be paroled, then she would not have pled guilty.
Harris-Hayes also claimed that she pled guilty out of fear that one of the guards at the Boone County Jail would assault her again if she was not transferred. She claimed that the guard previously assaulted her when, after the guard permitted her to exit her cell to obtain a bottle of juice, he "slammed the cell door on [her] left arm as [she] was reentering her quarters." Harris-Hayes claimed that her arm was severely bruised from the incident. She filed a grievance with the Boone County Jail which was later found, after further investigation, to be unsubstantiated.
On January 21, 1997, the motion court denied Harris-Hayes' Rule 24.035 motion. The motion court found that: (1) Harris-Hayes' assertion that she pled guilty in reliance upon plea counsel's assurance that she would only serve six to eight months was not reasonable and was not supported by the evidence; and (2) her claim that she pled guilty because she was mistreated by personnel at the Boone County Correctional Center was refuted by the record.
Appellate review of a motion court's decision in a Rule 24.035 proceeding is limited to a determination of whether the findings and conclusions of the motion court were clearly erroneous. Rule 24.035(k). A motion court's actions are presumed correct and will be found clearly erroneous only if a full review of the record leaves the appellate court with a definite and firm impression that a mistake has been made. Wilson v. State, 813 S.W.2d 833, 835 (Mo. 1991). The appellant-movant bears the burden of proving clear error by a preponderance of the evidence. Rule 24.035(I).
In her first point on appeal, Harris-Hayes argues that her guilty plea was rendered involuntary because she received ineffective assistance of counsel when her trial counsel allegedly told her that she would be paroled in six to eight months. Appellant's claim of ineffective assistance of counsel is subject to the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). Harris-Hayes must demonstrate that her counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under the circumstances, and that she was prejudiced by such a failure. Id., 466 U.S. at 687.
Prejudice is shown by proof that, but for the errors of counsel, the defendant would not have pled guilty and would have insisted on going to trial. Hagan v. State, 836 S.W.2d 459, 464 (Mo. banc 1992). There is a strong presumption that counsel was effective and appellant bears the heavy burden of overcoming the presumption by a preponderance of the evidence. Amrine v. State, 785 S.W.2d 531, 534 (Mo. banc 1990).
After a guilty plea, counsel's effectiveness is limited to the extent it affects the voluntariness of the defendant's plea. Wilkins v. State, 802 S.W.2d 491, 497 (Mo. banc 1991), cert. denied, 502 U.S. 841 (1991). Harris-Hayes claims her plea was involuntary because she was coerced and misled by her trial counsel's erroneous advice about her eligibility for parole. "When a movant claims [her] plea was involuntary because [s]he was misled by counsel, the test is whether movant's belief was reasonable." Torrence v. State, 861 S.W.2d 149, 150 (Mo. App. 1993).
At her guilty plea hearing, Harris-Hayes was questioned by the court as to the voluntariness of her guilty plea. She was asked by the court, "Now, has anybody promised you anything that's not been stated here in order to get you to plead guilty against your will?" Harris-Hayes replied, "No." During the hearing, she never stated that she had been told she would receive parole in six or eight months. In addition, Harris-Hayes' trial counsel testified at the postconviction motion hearing that she never gave Harris-Hayes any maximum date that she would be incarcerated before being paroled. Harris-Hayes assertion that she pled guilty in reliance upon her trial counsel's alleged assurance that she would serve only six to eight months in prison was not reasonable and was not supported by the evidence at the hearing. Id. The trial court did not err on this point.
Harris-Hayes' second argument on appeal is that her guilty plea was involuntary because she made it out of fear that she would be assaulted by a jail official. Again, Harris-Hayes has the burden of establishing, by a preponderance of the evidence, that her guilty plea was involuntary. Harris-Hayes cites only one case, Tillock v. State, 711 S.W.2d 203 (Mo. App. 1986), to support her argument that she should be permitted to withdraw her plea of guilty because she was induced to plead guilty by fear and apprehension. This court does not find Tillock to be persuasive. In Tillock, the defendant's plea was found involuntary because his trial counsel had told him that he could withdraw his plea if the court refused to grant probation. Id. at 205. There were no allegations by the defendant in Tillock that he pled guilty in fear of his safety. More on point with the instant case is Stock v. State, 740 S.W.2d 247 (Mo. App. 1987). In Stock, the defendant claimed that his plea was voluntary because, "he felt intimidated by his parole officer and lived in fear of fellow inmates at the county jail." Id. The court in Stock held that the lower court's finding that the defendant's plea was voluntary was not clearly erroneous. Id. at 248.
Harris-Hayes' testimony at the Rule 24.035 evidentiary hearing conflicts with the trial court's finding of voluntariness. Credibility of witnesses and resolving conflicts in evidence are determinations for the trial court. Id. The guilty plea hearing record clearly reflects that defendant knowingly and voluntarily entered her plea. The motion court was free to accept this evidence and reject Harris-Hayes' subsequent, contradictory testimony in making its determination. Menees v. State, 693 S.W.2d 334, 335 (Mo. App. 1985). The motion court's finding that the appellant's guilty plea was voluntary was not clearly erroneous and was supported by the evidence. Point II denied.
Judgment affirmed.