Opinion
No. ED93682
May 11, 2010
Appeal from the Circuit Court of Franklin County Honorable Gael D. Wood.
Ellen H. Flottman, Columbia, Missouri, for Appellant.
Christopher Koster, John W. Grantham, Jefferson City, MO, for Respondent.
MEMORANDUM SUPPLEMENTING ORDER AFFIRMING JUDGMENT PURSUANT TO RULE 84.16(b)
This memorandum is for the information of the parties and sets forth the reasons for our order affirming the judgment.
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.
Eric Webb ("Movant") appeals the motion court's denial of his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. We affirm.
I. BACKGROUND
Movant entered guilty pleas to one count of involuntary manslaughter and one count of armed criminal action. Movant entered the pleas pursuant to an agreement with the State, whereby the State agreed to drop a charge of failure to drive on the right half of the roadway, and to recommend two sentences of 10 years to run concurrently in exchange for Movant's guilty pleas. Movant appeared before the plea court on April 21, 2007, entered his pleas, and the court ordered a sentencing advisory report ("SAR"). On July 22, 2008 Movant appeared before the plea court again, and the plea court informed Movant that because of the information in the SAR it intended to reject the plea agreement. The plea court then told Movant he had the right to withdraw his guilty pleas, but if he did not, he would be sentenced to two twelve-year sentences to run concurrently, rather than the two 10-year concurrent sentences recommended by the State. Movant chose to persist with his guilty pleas and was sentenced to two concurrent 12-year terms. Movant filed a motion for post-conviction relief claiming he was not afforded effective assistance of counsel. The motion court denied Movant all post-conviction relief without an evidentiary hearing. Movant appeals.
II. DISCUSSION
In his sole point on appeal, Movant argues that he was afforded ineffective assistance of counsel because counsel told Movant that he would only have to serve 40% of his sentence before being eligible for parole rather than 85% of his sentence. We disagree.
Our review of the motion court's denial of post-conviction relief is limited to a determination of whether the motion court's findings and conclusions are clearly erroneous. Melton v. State, 260 S.W.3d 882, 885 (Mo. App. E.D. 2008). Findings and conclusions are clearly erroneous if upon review of the record, we are left with the firm impression that a mistake has been made. Id. In order to prevail on a claim of ineffective assistance of counsel, Movant must demonstrate that: (a) his trial counsel failed to exercise the customary skill and diligence a reasonably competent attorney would have under similar circumstances; and (b) Movant was thereby prejudiced.Id.
Movant argues that if counsel had told him that he would have to serve 85% of his sentence before being eligible for parole he would not have pled guilty. Therefore he was prejudiced by counsel's promise. However, Movant's claim is refuted by the record.
At the plea hearing, the following exchange occurred:
Court: Has anyone threatened you to get you to plead guilty?
Movant: No.
Court: Has anyone promised you anything other than the State's recommendation to get you to plead guilty?
Movant: No.
Later at the hearing, the following also was said:
Court: Did [your attorney] make you plead guilty against your free will?
Movant: No.
Court: Can you think of anything at all that they should have done differently in handling your case?
Movant: No.
Court: Are you completely satisfied with their legal services?
Movant: Yes.
At no point on the record did Movant state that his pleas were based on a promise by counsel that he would only serve 40% of his sentence before being eligible for parole. Rather, Movant stated that no promises were made to him, other than the State's plea agreement, in return for his plea. Movant's argument is refuted by the record.
Further, parole eligibility is a collateral consequence of a plea and the failure of either plea counsel or the trial court to inform the defendant of his eligibility for parole does not render a plea involuntary. Drone v. State, 973 S.W.2d 897, 902 (Mo. App. W.D. 1998). The trial court need only inform a defendant of the direct consequences of a guilty plea for the plea to be voluntary and comport with due process. Carter v. State, 215 S.W.3d 206, 210 (Mo. App. E.D. 2006).
The plea court informed Movant of the direct consequences of his pleas when it told him the mandatory minimum sentence required by law and the possible maximum penalty that his charges carried. Further, the plea court informed Movant that he had a right to withdraw his pleas when it informed him that the plea agreement would be rejected and he would be sentenced to two concurrent 12-year sentences. However, after hearing this, Movant chose to persist with his guilty pleas.
Because the record shows that no promises were made for his pleas, and because he was informed of the direct consequences of his pleas, counsel was not ineffective. Point denied.
III. CONCLUSION
The judgment of the trial court is affirmed pursuant to Rule 84.16(b).
ORDER
Eric Webb appeals the motion court's denial of his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum for their information only, setting forth the facts and reasons for this order.
The judgment is affirmed pursuant to Rule 84.16(b).