Cole v. State

GARRISON, Judge.

This appeal is from an order dismissing appellant’s Amended Motion To Vacate, Set Aside, Or, Correct Sentence Under Rule 24.-0351 without an evidentiary hearing. We affirm the court’s ruling.

Appellant pleaded guilty to the Class B felony offense of trafficking in the second degree pursuant to § 195.223.2 There was no plea bargain as such, but in exchange for the guilty plea the State agreed to a reduced bond and further requested deferment of sentencing for at least ninety days, for the purpose of determining appellant’s cooperation with a federal agency, before making final sentencing recommendations. The trial court accepted the guilty plea, found that it was voluntary, ordered a pre-sentence investigation, reduced appellant’s bond as requested, and set sentencing three months later.

The transcript of the guilty plea reveals that appellant acknowledged there was no plea bargain with the State; the only representations made by the State were to rec*408ommend bond reduction and to take into consideration whatever assistance appellant might give the federal agency; that he had not been told or led to believe that any certain punishment would be imposed in exchange for his plea; he had no reason at all to enter the plea of guilty other than the fact that he was guilty as charged; and he had no questions concerning his rights or the consequences of his plea. In the presence of appellant, the trial court stated its understanding of the State’s position on sentencing by saying that “some place down the road, depending on what occurs, there may or there may not be a recommendation.”

In an effort to comply with Rule 24.-02(b)(1)3, the court made inquiry of the assistant prosecutor concerning the range of punishment. The response was “five to 10, Judge, this is a Class B felony.” In fact, this was incorrect in that the correct maximum punishment was fifteen years. Section 558.011.1(2). Apparently the misstatement was not corrected by either appellant’s counsel or the court.

Appellant was eventually sentenced to ten years in the Department of Corrections, execution of sentence was suspended, and he was placed on probation for five years. Later, his probation was revoked and the ten-year sentence was ordered to be executed. Appellant thereafter filed his pro se Motion To Vacate, Set Aside Or Correct The Judgment Or Sentence pursuant to Rule 24.035, which was later amended by court-appointed counsel in a timely fashion. The court dismissed the Amended Motion To Vacate on the motion of respondent, without evidentiary hearing, and filed its Findings of Fact and Conclusions of Law. This appeal followed.

In his sole point on this appeal, appellant contends the court erred in overruling his motion for postconviction relief without an evidentiary hearing because he pleaded facts, not refuted by the record, showing that he was advised by his counsel of an incorrect range of punishment which, in turn, prejudiced him by causing his plea of guilty to be entered in an uninformed and unknowing manner. In the same point, he alleges that the failure to inform him of the correct maximum range of punishment violated Rule 24.02(b)(1). The sole issue presented, therefore, is whether the court erred in denying appellant’s motion without an evidentiary hearing. Our review is limited to the issue raised by appellant in his point relied on. McCoo v. State, 844 S.W.2d 565, 567-68 (Mo.App.1992).

In order to be entitled to an eviden-tiary hearing on a Rule 24.035 motion, the movant must meet three requirements: (1) the motion must allege facts, not conclusions, warranting relief; (2) the facts alleged must raise matters not refuted by the files and record in the case; and (3) the matters complained of must have resulted in prejudice to movant. Broyles v. State, 785 S.W.2d 685, 687 (Mo.App.1990); Troupe v. State, 766 S.W.2d 722, 723 (Mo.App.1989); Chapman v. State, 720 S.W.2d 17, 18 (Mo.App.1986).

In his Amended Motion, appellant “asserts that had he been properly advised of the range of punishment he would not have entered a plea of guilty but would instead have proceeded to trial.” Obviously, the only information contained in the record concerning range of punishment was incorrect. The question, however, is whether appellant’s Motion and Amended Motion are sufficient to establish entitlement to an evidentiary hearing under the tests outlined above. We conclude that they are not.

The record is clear that appellant pleaded guilty with no plea agreement concerning the punishment to be imposed, with no belief that any certain punishment would be imposed, and with the belief that the *409range of punishment included the term to which he was ultimately sentenced. The motion court, in its Findings of Fact and Conclusions of Law, found:

This Court finds that Movant was not prejudiced by the prosecutor’s misstatement of the range of punishment. The Court notes that Movant pled guilty under a plea agreement providing that the State would not make a recommendation as to the length of the prison term to be imposed. Movant stated that he understood that there was no such recommendation on behalf of the State. Movant also stated that he had not been promised that he would receive a certain punishment if he pled guilty. The Court notes that the prosecutor, at sentencing, stated the range of punishment as from five to ten years in the Missouri Department of Corrections. The Court also notes that Movant believed he was facing a prison term of as much as ten years, and subsequently received a prison term of ten years. This sentence was within the parameters expected by Movant. The Court finds that Movant was not prejudiced by the fact that the maximum sentence possible was fifteen years, rather than ten years.

Under the facts of this particular case, we agree with the motion court that there was no prejudice to appellant in being advised of the incorrect range of punishment when the sentence actually imposed was within both the correct range of punishment as well as that which appellant was told applied. Certainly, appellant stated no facts or special circumstances in his Amended Motion to support the conclusory allegation that he would have proceeded to trial if he had been properly advised about the range of punishment. This type of showing is required to demonstrate prejudice. Hill v. Lockhart, 474 U.S. 52, 59-60, 106 S.Ct. 366, 370-371, 88 L.Ed.2d 203, 210-11 (1985).

Appellant relies principally on three cases, to-wit: Wiles v. State, 812 S.W.2d 549 (Mo.App.1991); Perryman v. State, 755 S.W.2d 598 (Mo.App.1988); and Murrain v. State, 714 S.W.2d 177 (Mo.App.1986). All of them are distinguishable from the facts here. The Wiles and Perry-man cases each involved a situation where the defendant pleaded guilty under a plea agreement after being told the maximum punishment was greater than was actually the case. Therefore, they each could have thought the risk of going to trial was greater than it actually was. In the Murrain case the defendant was not informed by the court concerning the minimum punishment, but did receive that information from counsel. In the instant case, there is nothing to indicate that the incorrect information about possible maximum punishment could have induced the guilty plea. However, the correct information that the maximum punishment was fifteen years rather than ten years would have been more likely to have induced a guilty plea because it would have served to reveal that the risk of trial was greater than was indicated to appellant prior to his plea.

Rule 24.02(b)(1), requiring disclosure of the maximum possible penalty, is similar to earlier versions of Federal Rule 11. The result we reach here is consistent with that reached in such federal cases as United States v. Rodrigue, 545 F.2d 75 (8th Cir.1976); Bell v. United States, 521 F.2d 713 (4th Cir.1975); and United States v. Sheppard, 588 F.2d 917 (4th Cir.1978). In the Bell case, the court agreed that a defendant should be entitled to withdraw a plea of guilty if he received an actual penalty greater than the maximum he was told he could receive. Where, however, the converse was true and he received an actual penalty within the range he was told he could expect, the court found no reason to conclude he was misled and said, “[ujnder these circumstances, rearraignment is not necessary to either of the dual purposes of Rule 11: to insure voluntariness, or to create and preserve an adequate record of waiver.” Bell v. United States, 521 F.2d at 715. In the Rodrigue case, supra, the court found defendant’s claim frivolous when the sentence actually imposed was within that which he was incorrectly told was possible. Finally, in the Sheppard case, the court said there would be no necessity to invalidate the guilty plea if the *410actual sentence given were reduced to conform to the incorrect information provided to defendant at the time of his plea. If that were done, the court said, “... the sentence would conform to precisely what the defendant himself claims he understood to be the maximum sentence to which he exposed himself by his plea. In that circumstance, there would be no necessity to invalidate the defendant’s guilty plea in order to insure that the defendant understood the consequences of his plea, which is a purpose of Rule 11.” United States v. Sheppard, 588 F.2d at 918.

We do not believe the case of Allen v. United States, 634 F.2d 316, 317-18 (5th Cir.1981), cited by the dissent, is inconsistent with the result we reach. In that case, just as here, there was no plea bargain and the defendant alleged he would have gone to trial rather than plead guilty if he had known the correct maximum punishment. The misinformation there was that defendant was told the maximum punishment was greater than was actually the case. In that case the Fifth Circuit held that although the misstatement was a violation of Federal Rule 11, that fact alone did not entitle the defendant to relief because the facts demonstrated that the mistake was not likely to have been a material factor affecting his decision to plead guilty. The court, 634 F.2d at page 318, cited with approval United States v. Guerra, 588 F.2d 519 (5th Cir.1979), for the proposition that a “petitioner does not establish his right to a hearing by the simple expedient of filing a petition and a hearing is not required on patently frivolous claims or those which are based upon unsupported generalizations.”

Our review of the motion court’s dismissal of the Rule 24.035 motion is limited to a determination of whether the Findings of Fact and Conclusions of Law are clearly erroneous. Rule 24.035(j); Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989), cert. denied, 493 U.S. 866, 110 S.Ct. 186, 107 L.Ed.2d 141 (1989); Edmonds v. State, 819 S.W.2d 90, 91 (Mo.App.1991). Such findings and conclusions are clearly erroneous only if, after a review of the entire record, we are left with the definite and firm impression that a mistake has been made. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987).

We conclude that the motion court’s finding is not clearly erroneous and it is, therefore, affirmed.

MONTGOMERY, P.J., concurs. FLANIGAN, J., dissents, and files dissenting opinion.

. All references to rules are to Missouri Rules of Court, V.A.M.R.

. All references to statues are to RSMo Cum. Supp.1990.

. Rule 24.02(b)(1) provides, in pertinent part: (b) Advice to Defendant. Before accepting a plea of guilty, the court must address the defendant personally in open court, and inform him of, and determine that he understands, the following:

1. ... the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law; ...