Opinion
No. WD 57889
Opinion filed: September 5, 2000
ORIGINAL PROCEEDING IN WRIT OF HABEAS CORPUS
Frank A. Jung, Assistant Attorney General Jefferson City, Missouri, for appellant[s].
Nancy McKerrow Columbia, Missouri, for respondent[s].
Before Joseph M. Ellis, Presiding Judge, Laura D. Stith, Judge and Edwin H. Smith, Judge
Michael J. Covey was charged in the Circuit Court of Mercer County with a Class D felony of passing a bad check, § 570.120, RSMo (1994), and a Class C felony of assault in the second degree, § 565.060, RSMo (1994). On September 10, 1997, Mr. Covey appeared before Judge Holcomb and entered pleas of guilty to both charges. The factual basis behind Mr. Covey's guilty plea as to count one is that, on May 12, 1997, he wrote a personal check in the amount of $22.76 from an account that did not exist. As for the assault charge, on July 25, 1997, Mr. Covey saw Michael Marshall, his ex-wife's boyfriend, trying to push Mr. Covey's daughter out of a car, so he attempted to hit Mr. Marshall with a shovel by poking the shovel through the window of the car in which Mr. Marshall was sitting.
At the plea hearing, the State recommended that the court sentence Mr. Covey to five years on each count, the sentences to run concurrently, and place Mr. Covey in the 120-day institutional treatment program pursuant to § 559.115. Mr. Covey's pleas of guilty were accepted by the court and sentencing was deferred pending the completion of a pre-sentence investigation by the Board of Probation and Parole.
This and all subsequent statutory references are to RSMo Cumulative Supplement (1997) unless otherwise indicated. Section 559.115.2 provides in pertinent part as follows:
A circuit court only upon its own motion and not that of the state or the defendant shall have the power to grant probation to a defendant anytime up to one hundred twenty days after such defendant has been delivered to the custody of the department of corrections but not thereafter.
Mr. Covey appeared before Judge Holcomb on November 12, 1997, for sentencing. At the sentencing hearing, the Probation and Parole officer recommended against probation even after the completion of a 120-day treatment program. However, the judge disagreed stating:
I just — I can't fully agree with Mr. Smith from the standpoint of locking you up because he says it will not work and he may well be right. He may have a better handle on this. If it doesn't work, then that is what is going to happen to you. Now, I'm going to tell you right now I'm not going to follow the recommendation. What I'm going to do is you have got five and five. I'm going to stack them. That is consecutive and not concurrent. You are looking at ten years. Now, if you want to withdraw the guilty plea on the fact I'm not going to follow the recommendation, I will — I will tell you, however, I'm going to send you down for 120 day treatment. If you want to confer with him, I will give you that opportunity. If not, I will allow you to withdraw your plea.
After the Judge told Mr. Covey the sentence he was going to impose, Mr. Covey's attorney explained to him that this sentence by the court was "exactly the same thing [they had] talked about except for a ten year sentence [was] over [his] head if [he] mess[ed] up instead of five years." Mr. Covey said he understood and his attorney then asked him if he "want[ed] the opportunity for the 120 day call back." Mr. Covey responded that he did and the court then imposed the following sentence:
I will still make it five and five. [In CR697-121FX, the court will impose] [f]ive years confinement in the Department of Corrections; conditional release time fixed as provided by law. In CR697-164FX, the court will impose a sentence of five years confinement in the Department of Corrections with conditional release time fixed as provided by law; said sentence to be consecutive to the sentence imposed in 121FX. A total of ten years, Mr. Covey. The court will retain jurisdiction in both cases, and request a written report within 100 days of your delivery to the custody of the Department of Corrections. I will also order you placed in institutional treatment program where you will be going through some of the most intensive substance abuse counseling and treatment you have ever received.
Judge Holcomb continued to explain to Mr. Covey that his success on probation would be determined by his attitude and the amount of hard work that he puts forth in the institutional treatment program. Mr. Covey was then transferred to the Missouri Department of Corrections.
On December 29, 1997, Paul B. Bergfeld, the Community Corrections Coordinator, wrote a letter to Judge Holcomb informing him that because Mr. Covey was taking the prescription drug epidrine for depression, he was excluded from placement in the Institutional Treatment Center. The letter continued by stating that Mr. Covey will be assigned to another institution and a report will be sent to the court in accordance with § 559.115. A copy of this letter was sent to Mr. Covey.
Mr. Covey is currently incarcerated at the Western Missouri Correctional Center in Cameron, Missouri. He filed a petition for a writ of habeas corpus to the Circuit Court of DeKalb County on January 22, 1999. His petition was denied on February 5, 1999, and Mr. Covey petitioned this court for a writ of habeas corpus on November 18, 1999. We entered a preliminary writ of habeas corpus on December 17, 1999, Mr. Covey was appointed counsel, and oral arguments were heard on July 12, 2000.
Mr. Covey contends he is being unlawfully restrained by Steve Moore, the superintendent of the Western Missouri Correctional Center, because he was not released after 120 days of confinement. He argues that his plea was involuntary because he was misled, by the court, into believing that he would be released after serving 120 days of imprisonment. Mr. Covey contends that even though he was not admitted into the institutional treatment program for substance abuse, as was agreed to in his plea, he was still under the 120-day-call-back provision of § 559.115.
Before considering the merits of Mr. Covey's claim, we must, as a preliminary matter, determine whether habeas corpus is the appropriate remedy in this case. Brown v. Gammon , 947 S.W.2d 437, 440 (Mo.App.W.D. 1997). Moore, the Respondent, contends that the proper procedure for challenging the voluntariness of Mr. Covey's plea is to file a Rule 24.035 post-conviction relief motion. Moore argues that Mr. Covey has waived his right to challenge this issue because he chose not to file a motion for post-conviction relief within the time prescribed by that rule. Mr. Covey argues that he did not file a Rule 24.035 motion because the circumstances surrounding his wrongful incarceration did not arise until after the 90-day deadline for filing a Rule 24.035 post-conviction relief motion had expired.
"Any person restrained of liberty within this state may petition for a writ of habeas corpus to inquire into the cause of such restraint." Rule 91.01(b); § 532.010, RSMo (1994); Brown , 947 S.W.2d at 440. The relief available under a writ of habeas corpus traditionally has been very limited. Simmons v. White , 866 S.W.2d 443, 445 (Mo.banc 1993). We are not required to issue this extraordinary writ when other remedies are adequate and available. White v. State , 779 S.W.2d 571, 573 (Mo.banc 1989). The Missouri Supreme Court has stated that habeas corpus relief is not a substitute for appeal or post-conviction proceedings. Simmons , 866 S.W.2d 443 at 446. Thus, a writ of habeas corpus generally is not an appropriate vehicle to raise an issue that could have been raised, but was not, on direct appeal or in a post-conviction proceeding. White , 779 S.W.2d at 573. "Habeas corpus may be used to challenge a final judgment after an individual's failure to pursue appellate and post-conviction remedies only to raise jurisdictional issues or in circumstances so rare and exceptional that a manifest injustice results" if habeas corpus relief is not granted. Simmons , 866 S.W.2d at 446 (emphasis in original); see also Brown , 947 S.W.2d at 440. Mr. Covey is not raising any issues of jurisdiction in his motion, therefore, for habeas corpus relief to be granted, a manifest injustice must result if relief is not granted. In order to be entitled to habeas corpus relief due to manifest injustice, courts must make a broad inquiry into whether there is a basis for finding that the injustice causing the petitioner to be wrongfully confined was caused by the petitioner's "own want of diligence, or his deliberate by-passing of an available remedy as a matter of strategy, which might constitute waiver of his habeas corpus remedy." Merriweather v. Grandison , 904 S.W.2d 485, 489 (Mo.App.W.D. 1995). In White , our Supreme Court stated:
Procedural default in remedies previously available may provide the basis for denying a petition in habeas corpus, and the petitioner, at a minimum, would have to establish that the grounds relied on were not "known to him" while proceedings under Rule 24.035 were available.
White , 779 S.W.2d at 572. Therefore, the determination whether manifest injustice exists in a particular case requires the court to consider whether petitioner had a valid reason for not raising the issue in other proceedings, such as on direct appeal or in a post-conviction motion. And, if the procedural default stems from a calculated, strategic decision to forego both appeal and post-conviction relief motions, habeas corpus relief is not available or proper. Simmons , 866 S.W.2d at 446-47.
After considering all the circumstances surrounding Mr. Covey's writ of habeas corpus, we find that his failure to challenge the voluntariness of his pleas in a post-conviction motion was not the result of a calculated and strategic decision. Instead, Mr. Covey was not cognizant of his claim until after the 90-day time limit of Rule 24.035 had expired. See Brown , 947 S.W.2d at 440. Mr. Covey's complaint was not known to him, nor reasonably discoverable by him during the applicable 90-day time limit of Rule 24.035. It was impossible for Mr. Covey to realize that he would be denied probation until 120 days after he began his sentence, or 30 days after the time limits for filing a post-conviction relief motion had expired. See Id. Mr. Moore argues that the letter from Mr. Bergfeld dated December 29, 1997, stating that Mr. Covey was not eligible for the institutional treatment program, constituted notice to Mr. Covey that he would not be granted probation after 120 days of imprisonment. We disagree. While this letter did explain Mr. Covey's disqualification from the institutional treatment program, there was no reason for Mr. Covey to believe that said disqualification would automatically disqualify him from receiving probation after 120 days of confinement pursuant to § 559.115. In fact, the copy of the letter sent to Mr. Covey from Mr. Bergfeld specifically stated that the Department of Corrections would still send Judge Holcomb a court report in accordance with § 559.115. For these reasons, we find that Mr. Covey had no way of knowing or discovering this complaint until after the expiration of the time period in which he was required to file his Rule 24.035 motion. Therefore, Mr. Covey is "restrained of liberty within this state" and is inquiring into the cause of his restraint in accordance with Rule 91.01(b). See Id. Thus, a petition for a writ of habeas corpus is the appropriate remedy. See Id.
Mr. Covey argues that he was misled into pleading guilty to enhanced sentences totaling ten years imprisonment in exchange for a promise from the Court that he would be released on probation at the end of 120 days of confinement. He claims he is being unlawfully restrained because his pleas were involuntary in that the sentencing court made statements that led him to reasonably believe that he would be released after 120 days in prison.
Habeas corpus proceedings pursuant to Rule 91 are limited "'to determining the facial validity of confinement.'" Id. ( quoting State ex rel. Haley v. Groose , 873 S.W.2d 221, 222 (Mo. banc 1994)). "Under the statutes that have codified the common law writ, the 'facial validity' of confinement is determined on the basis of the entire record of the proceedings in question." Brown , 947 S.W.2d at 440.
"When considering whether a defendant pleaded guilty based on a mistaken belief about the sentence and plea agreement, 'the test is whether a reasonable basis exists in the record for such belief.'" Id. at 440-41( quoting McNeal v. State , 910 S.W.2d 767, 769 (Mo.App. 1995)). We will find that a reasonable mistake exists only if Mr. Covey's belief was based upon positive representations upon which he was entitled to rely. Id. at 441.
The case at hand is remarkably similar to the situation in Brown , which was before this court in 1997. In Brown , Myron Brown pleaded guilty to one count of distributing a controlled substance near a school, § 195.214, RSMo (1994). Id. at 438. The State recommended 12 years imprisonment in exchange for the plea of guilty. Id. at 439. The trial court accepted Mr. Brown's plea and suspended sentencing until a pre-sentence investigation could be completed. Brown , 947 S.W.2d at 439. The pre-sentence investigation recommended that probation be denied and that Mr. Brown should undergo substance abuse treatment. Id. At sentencing, the court told Mr. Brown that it was willing to sentence him to the recommended 12 years, but it had a desire to sentence him to 20 years in prison under the 120-day-call-back provisions of § 559.115. Id. at 439. The court then went into a lengthy discussion with Mr. Brown explaining to him that he's getting an "opportunity" to get out on probation in 120 days and if he does not seize that opportunity or if he "screw[s] it up" after being released on probation, then he will have to pay a penalty by serving an extended sentence of 20 years. Id. Mr. Brown accepted the 20-year sentence with the call-back provision under § 559.115 with an understanding that he had to complete a substance abuse treatment program. Id. At the end of the 120 days in prison, Mr. Brown had only completed 11 weeks of the full 12-week program due only to a lack of time. Brown , 947 S.W.2d at 440. He received a "fair" rating in the recovery program and it was recommended that he be released at the end of the 120-day period. Id. Based on this report, the trial court denied Mr. Brown probation. Id. Mr. Brown finished the substance abuse program and received an official certificate of completion. Id. Mr. Brown then filed a petition for a writ of habeas corpus. Id.
We found that the plea agreement between Mr. Brown and the court was subject to two interpretations: (1) the court would grant probation after 120 days in prison if Mr. Brown simply did what was necessary to complete the drug program, or (2) Mr. Brown had to successfully complete the program, as viewed in the discretion of the court, in order to qualify for probation at the end of the 120-day period. Brown , 947 S.W.2d at 441. Because of this ambiguity, we found that Mr. Brown's guilty plea was based on a reasonable mistake of fact and we vacated his judgment and sentence and remanded the cause to the trial court to provide Mr. Brown an opportunity to withdraw his guilty plea. Id. As in Brown , Mr. Covey pleaded guilty to an enhanced sentence in order to receive the 120-day-call-back provision of § 559.115. The only way Mr. Covey could receive the 120-day-call-back was if he accepted the longer sentences of five years on each charge to run consecutively. The conversation between Mr. Covey and his attorney was conducted on the record and from that conversation, we can infer that Judge Holcomb understood that Mr. Covey was pleading guilty to the enhanced sentences for the sole purpose of receiving a 120-day-call-back pursuant to § 559.115. That conversation went as follows:
Mr. Miller (attorney): Mr. Covey, you understand that this is exactly the same thing we talked about except for a ten year sentence over your head if you mess up instead of five years?
The Defendant: Yeah, I understand.
Mr. Miller: Is this something you want to talk about or something you are ready to make a decision on now?
The Defendant: I'm ready to go.
Mr. Miller: So, you want the opportunity for the 120 day call back?
The Defendant: Yeah.
The Court: All right.
When the court accepted Mr. Covey's decision to plead guilty to both charges and receive the enhanced sentences in conjunction with a 120-day-call-back, the court was aware that Mr. Covey was taking the prescription medication epidrine. With this knowledge, the court offered Mr. Covey an opportunity to be placed on probation after 120 days in prison. The court never explained to Mr. Covey that he would not receive probation if he did not complete the institutional treatment program, nor did the court explain to Mr. Covey that the granting of probation after 120 days was at the discretion of the trial court. We find that Mr. Covey was entitled to rely on Judge Holcomb's representations that he would be released on probation after 120 days of confinement, therefore, Mr. Covey pleaded guilty based on a reasonable mistaken belief. "If the accused has been misled or induced to plead guilty by fraud, mistake, misapprehension, fear, coercion, or promises, the defendant should be permitted to withdraw his guilty plea." Id. ( quoting Hampton v. State , 877 S.W.2d 250, 252 (Mo.App. 1994)). For these reasons, Mr. Covey's petition for a writ of habeas corpus is granted. Mr. Covey's judgment and sentences are vacated and the cause is remanded to the trial court to provide Mr. Covey an opportunity to withdraw his guilty plea.
All concur.