Opinion
No. SD 31404.
2012-02-9
Robert Carl GAPSKE, Appellant, v. STATE of Missouri, Respondent.
Ellen H. Flottman, Columbia, MO, for Appellant. Chris Koster, Attorney General and Laura E. Elsbury, Assistant Attorney General, Jefferson City, MO, for Respondent.
Ellen H. Flottman, Columbia, MO, for Appellant. Chris Koster, Attorney General and Laura E. Elsbury, Assistant Attorney General, Jefferson City, MO, for Respondent.
WILLIAM W. FRANCIS, JR., Presiding Judge.
Robert Carl Gapske (“Gapske”) appeals the motion court's denial of his Rule 24.035 motion for post-conviction relief after an evidentiary hearing. We affirm.
Factual and Procedural History
On June 10, 2009, Gapske was charged by felony information with one count of driving while intoxicated, one count of driving while his operator's license was revoked, and one count of failing to drive on the right half of the road. At the plea hearing, Gapske entered an Alford
Standard of Review
Appellate 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. Rule 24.035(k). “The [motion] court's findings and conclusions are clearly erroneous only if, after reviewing the entire record, the appellate court is left with the definite and firm impression a mistake has been made.” State v. Nunley, 923 S.W.2d 911, 922 (Mo. banc 1996). “At a post-conviction relief evidentiary hearing, the motion court determines the credibility of the witnesses and is free to believe or disbelieve the testimony of any witness, including that of the Movant.” Hurst v. State, 301 S.W.3d 112, 117 (Mo.App. E.D.2010).
Analysis
In order to prevail on a claim of ineffective assistance of counsel, a movant must show: “(1) Counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise in similar circumstances, and (2) Counsel's failure prejudiced Movant.” Rivera v. State, 106 S.W.3d 635, 638 (Mo.App. S.D.2003); see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Because Gapske's conviction resulted from a negotiated plea of guilty, a claim of ineffective assistance of counsel is immaterial except to the extent that it infringes upon the voluntariness and knowledge with which the plea was made. Moore v. State, 207 S.W.3d 725, 729 (Mo.App. S.D.2006). Accordingly, Gapske must prove by a preponderance of the evidence that, but for plea counsel's unprofessional errors, there is a reasonable probability he would have insisted on going to trial instead of pleading guilty. Id.
It is not required that a defendant be informed about eligibility for parole for a plea to be entered voluntarily and intelligently; however, there is authority for the proposition that misinforming as opposed to failing to inform a defendant about eligibility for parole may undermine the voluntariness of the plea. Reynolds v. State, 994 S.W.2d 944, 946 (Mo. banc 1999). “ ‘The expectation that a [movant] will receive a lesser sentence or a disappointed hope of a lesser sentence does not make a plea involuntary.’ ” Jones v. State, 211 S.W.3d 210, 213 (Mo.App. S.D.2007) (quoting Redeemer v. State, 979 S.W.2d 565, 572 (Mo.App. W.D.1998)).
Upon examination of the record, particularly the transcript of the plea hearing, this Court is convinced Gapske understood his counsel did not, and could not make any promises to him regarding his eligibility for parole. The prosecutor specifically sought clarification to ensure that Gapske understood that Gapske's “counsel can make no promises regarding eligibility for parole and that that ultimately is the decision of the [DOC].” Gapske responded that he understood this. Further, after a series of additional questions regarding Gapske's understanding of the consequences of his plea, Gapske agreed that he understood that pursuant to the plea agreement he would receive five years in the DOC. Gapske stated: “Yes, sir, with the exception of maybe the parole.” (Emphasis added). In response, the prosecutor again clarified: “Right, that's up to the parole board.” Gapske stated he understood.
The only contrary evidence was Gapske's testimony at the evidentiary hearing that, based on counsel's misadvice, he believed he was only going to serve 40 percent of his five-year sentence in the DOC. The motion court explicitly found this testimony not credible in light of Gapske's testimony at the plea hearing affirmatively stating he understood his counsel could make no promises regarding eligibility for parole, and that it was up to the parole board to make that decision. The motion court was free to disbelieve such testimony. Hurst, 301 S.W.3d at 117.
A review of the record does not leave us with the definite and firm impression that a mistake has been made. The motion court did not err in concluding Gapske failed to demonstrate that plea counsel's alleged misadvice rendered his plea involuntary and unknowing. Gapske's point is, therefore, denied.
The judgment of the motion court is affirmed.
BATES, and SCOTT, JJ., Concur.
1. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).