Opinion
No. WD 59302
November 20, 2001
APPEAL FROM THE CIRCUIT COURT OF CLAY COUNTY THE HONORABLE MICHAEL J. MALONEY.
Jeffrey S. Eastman, Esq., Gladstone, MO, for appellant.
Richard A. Starnes and John M. Morris, III, Jeffeson City, MO, for respondent.
Before Lisa White Hardwick, P.J., William E. Turnage, S.J. and John Moran, S.J.
Fred Fensom pleaded guilty to forgery, section 570.090, RSMo 2000. Prior to sentencing, Mr. Fensom filed a motion to withdraw his guilty plea under Rule 29.07(d). Following a hearing, the trial court denied the motion. Mr. Fensom appeals contending that the trial court erred in denying his motion to withdraw his guilty plea because he was mislead by counsel regarding the plea agreement.
Affirmed.
Mr. Fensom was charged by information with forgery, section 570.090, RSMo 2000, for signing a fingerprint card so that it purported to have been made by another. Mr. Fensom pleaded guilty to the charge pursuant to a plea agreement in which the prosecutor agreed to dismiss all other pending charges against Mr. Fensom in exchange for his guilty plea.
Prior to sentencing, Mr. Fensom retained new counsel and filed a motion to withdraw his guilty plea under Rule 29.07(d). He claimed that his guilty plea was not voluntarily made because counsel had misled him to believe that the plea agreement with the State provided that the State would recommend a suspended imposition of sentence.
A hearing was held on Mr. Fensom's motion. Mr. Fensom testified that his attorney originally presented him with a petition to enter a guilty plea that provided that the prosecutor would recommend a suspended imposition of sentence in exchange for Mr. Fensom's guilty plea. Mr. Fensom explained that minutes before the plea hearing, his attorney informed him that the court would not accept the plea agreement as written in the proposed petition, but that the prosecutor would still recommend a suspended imposition of sentence at sentencing. Mr. Fensom further testified that after entering his guilty plea, he learned from his attorney that the court was not bound by any recommendation of the prosecutor. Finally, Mr. Fensom testified that concern over his attorney's representations regarding the plea agreement led him to discharge his attorney, retain a new attorney, and file his motion to withdraw his guilty plea. Following the hearing, the trial court denied Mr. Fensom's motion. This appeal followed.
In his sole point on appeal, Mr. Fensom claims that the trial court erred in denying his motion to withdraw his guilty plea. He contends that his guilty plea was unintelligent and involuntary because his attorney misled him to believe that in exchange for his guilty plea, the prosecutor agreed to recommend a suspended imposition of sentence.
Initially, the State claims that this court lacks jurisdiction over this appeal. It contends that because Mr. Fensom has not been sentenced, the judgment is not final, and, therefore, not appealable. Many cases hold that an order denying a motion to withdraw a guilty plea is an appealable order. State v. Skaggs , 248 S.W.2d 635, 636 (Mo. 1952); Hamilton v. State , 865 S.W.2d 374, 376 (Mo.App.E.D. 1993); Belcher v. State , 801 S.W.2d 372, 374 (Mo.App.E.D. 1990); State v. England , 599 S.W.2d 942, 943 (Mo.App.S.D. 1980). While none involved the exact factual situation here, these cases are nonetheless helpful in deciding whether this court has jurisdiction over Mr. Fensom's appeal. In England , the Southern District held that where a motion to withdraw a guilty plea is made before imposition of sentence, an order denying the motion is appealable. England , 599 S.W.2d at 943 . Additionally, in Hamilton and Belcher , the Eastern District held that an order denying a defendant's motion to withdraw his plea of guilty is an appealable order. Hamilton , 865 S.W.2d at 376; Belcher , 801 S.W.2d at 374. In Hamilton , the defendant filed his motion to withdraw his guilty plea approximately two weeks after he pleaded guilty and was sentenced by the trial court. Hamilton , 865 S.W.2d at 375 . In Belcher , the defendant filed a pro se motion to withdraw his Alford plea at the sentencing hearing. Belcher , 801 S.W.2d at 373. The trial court denied the motion and sentenced the defendant. Id . at 373. In both cases, the Eastern District held that a defendant is precluded from raising the issue of withdrawal of a guilty plea in a Rule 24.035 motion where he fails to appeal an order denying the motion to withdraw the plea of guilty. Hamilton , 865 S.W.2d at 376; Belcher , 801 S.W.2d at 374. The court explained that where no appeal is taken by a defendant from the order denying his motion to withdraw a guilty plea, the order becomes final. Id .
In this case, as in Belcher and England , Mr. Fensom filed a motion to withdraw his guilty plea before imposition of sentence. A hearing was held on the motion, and it was denied. Mr. Fensom then appealed the trial court's order denying the motion. The order denying Mr. Fensom's motion is appealable, and this court has jurisdiction over this appeal.
The State next challenges the timeliness of Mr. Fensom's appeal. In State v. Brown , 722 S.W.2d 613 (Mo.App.W.D. 1986), the State appealed the trial court's dismissal of the case based on constitutional speedy trial grounds. The defendant filed a motion to dismiss the appeal contending that the appeal was untimely. In denying the motion to dismiss, this court found that applicable rules and statutes provided no guidance to the parties as to when the order to dismiss was final for purposes of appeal by the State. Id . at 618. The court concluded that the timeliness issue would not be decided adversely to a party who had no definite guidance. Id .
As in Brown , neither Rule 29.07(d) nor any other rule or statute provides guidance as to when an order denying a motion to withdraw a guilty plea is final for purposes of appeal. Mr. Fensom's appeal will not, therefore, be dismissed as untimely.
The merits of Mr. Fensom's appeal are now discussed. Rule 29.07(d) provides:
A motion to withdraw a plea of guilty may be made only before sentence is imposed or when imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.
A defendant does not have an absolute right to withdraw a plea of guilty. Scroggins v. State , 859 S.W.2d 704, 706 (Mo.App.W.D. 1993). Whether a defendant is allowed to withdraw his guilty plea is within the sound discretion of the trial court. State v. Mandel , 837 S.W.2d 571, 573 (Mo.App.E.D. 1992). In reviewing the denial of a motion to withdraw a guilty plea, the appellate court is to determine whether the trial court abused its discretion or was clearly erroneous. Scroggins , 859 S.W.2d at 706 . The defendant must prove, by a preponderance of the evidence, error in the trial court's ruling. Id . at 707.
The ultimate test of whether a defendant should be permitted to withdraw his guilty plea is whether the plea was made unintelligently and involuntarily. Belcher , 801 S.W.2d at 374. A defendant should be allowed to withdraw his guilty plea if he has been misled or induced to plead guilty by fraud, mistake, misapprehension, coercion, duress, or fear. Scroggins , 859 S.W.2d at 707 . When a defendant claims that his guilty plea was made involuntarily because counsel misled him, the test applied is whether the defendant's belief was reasonable. Krider v. State , 44 S.W.3d 850, 857 (Mo.App.W.D. 2001). A mistaken belief is reasonable only if it is based on a positive representation upon which the defendant is entitled to rely. Id . Where there is no reasonable basis for the defendant's belief in light of the guilty plea record, the movant is not entitled to relief. Id .
In this case, the guilty plea record provides no reasonable basis for Mr. Fensom to have believed that the prosecutor would recommend a suspended imposition of sentence in exchange for his guilty plea. First, Mr. Fensom testified that he read and understood his plea petition, which he signed and which was filed in the court record. The plea petition contained the following paragraphs:
13. I declare that no officer or agent of any branch of government (Federal, State, or Local) has promised or suggested that I will receive a particular sentence, or probation, or any other form of leniency if I plead GUILTY, and my attorney has not made any such promise or suggestion.
The prosecuting attorney promised that if I plead GUILTY he will do the following: Dismiss all other pending charges against me. However, I have been advised that the Court is not bound by this promise.
If anyone else made any promises or suggestions, except as noted in the previous sentences, I know that they had no authority to do it. I know that the sentence I will receive, and the matter of probation, is solely a matter within the control of the Judge. I hope to receive leniency, but I am prepared to accept any punishment permitted by law which the Court sees fit to impose. I know there are no promises or guarantees as to what the sentence will be in this case or whether it will be consecutive or concurrent with any other sentence.
14. Neither I, nor any of my friends or loved ones, has been mistreated, threatened, coerced, or forced in any manner by anyone to get me to plead GUILTY, nor were there any promises, inducements, or representations made except as set forth in Paragraph 13 above.
While the plea petition presented to Mr. Fensom by his attorney originally contained a clause whereby the prosecutor would recommend a suspended imposition of sentence in exchange for Mr. Fensom's guilty plea, that clause was struck out of the plea petition. The plea agreement found in paragraph 13 above was then added, and Mr. Fensom initialed the change.
Additionally, Mr. Fensom testified that he was pleading guilty pursuant to a plea agreement with the State. The prosecutor described that in exchange for Mr. Fensom's plea, the State would dismiss all other pending charges arising out of the same incident. The court then asked Mr. Fensom if the prosecutor had accurately described the plea agreement, and he answered, "Yes, sir." Mr. Fensom also testified that he had not been promised anything separate and apart from that plea agreement. The following exchange also occurred between the court and Mr. Fensom:
Q [The Court]: The range of punishment in this case is one day to seven years incarceration, or a fine up to $5,000.00, or both. Do you understand the range of punishment.
A [Mr. Fensom]: Yes, Your Honor.
Q: Do you understand you can be sentenced to anything within that range both under the law and under the terms of your plea agreement?
A: Yes, sir.
Q: Has anyone told you that I have or any other judge has agreed to give you probation?
A: No, sir.
This record demonstrates that Mr. Fensom was not promised anything other than the prosecutor's promise to dismiss all other pending charges against him. Accordingly, Mr. Fensom's claimed belief that the prosecutor would recommend a suspended imposition of sentence at sentencing in exchange for his guilty plea was not reasonable.
Finally, although Mr. Fensom testified at the hearing on his motion that counsel had told him the prosecutor would recommend a suspended imposition of sentence, the trial court was free to believe or disbelieve any evidence, whether contradicted or undisputed, including Mr. Fensom's testimony. Krider , 44 S.W.3d at 858 . This court will defer to the motion court on matters of credibility. Id . Mr. Fensom failed to prove, by a preponderance of the evidence, error in the trial court's ruling. The point is denied.
The trial court's denial of Mr. Fensom's motion to withdraw his guilty plea is affirmed.
Hardwick, P.J. and Moran, S.J. concur.