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09/21/93 FARLAND L. GILLIEHAN v. STATE MISSOURI

September 21, 1993

FARLAND L. GILLIEHAN, MOVANT,
v.
STATE OF MISSOURI, RESPONDENT.



Appeal from the Circuit Court of St. Louis County. Honorable Robert L. Campbell.

Kathianne Knaup Crane, Presiding Judge, Kent E. Karohl, J., Concurs in part; Dissents in part. Lawrence G. Crahan, J., concurs.

The opinion of the court was delivered by: Crane

Movant, Farland L. Gilliehan, appeals from an order of the circuit court denying his motion for post-conviction relief under Rule 24.035 without an evidentiary hearing. We affirm.

Gilliehan was indicted for second degree burglary, stealing over $150, and resisting arrest. He was subsequently charged as a Class X offender by an information in lieu of indictment. The trial court conducted a plea hearing on April 7, 1992. At the beginning of the hearing, Gilliehan's attorney announced that Gilliehan authorized him to withdraw his not guilty plea and enter a guilty plea to the charges pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 167, 27 L. Ed. 2d 162 (1970). The state advised the court that it recommended a sentence of four years as a Class X offender. Gilliehan advised the court that he wanted to take the four year sentence rather than run the risk of going to trial. During the plea hearing, the court asked movant if he had been promised anything other than "four years as a Class X offender, with credit for jail time?" Gilliehan answered in the negative. After further questioning, the trial court accepted the plea, found it was voluntary, and found that Gilliehan understood the nature of the charges against him, his rights, and the consequences of the plea.

The state proved Gilliehan's Class X offender status with certified copies of the records of his three previous convictions. In Cause No. 530085 Gilliehan was charged with receiving stolen property in violation of § 570.080 RSMo. The indictment alleged he received a stolen automobile engine on June 21, 1985 at approximately 10:30 a.m. He pleaded guilty to that charge on February 27, 1986. In Cause No. 530086 Gilliehan was charged with receiving stolen property in violation of § 570.080 RSMo. The indictment alleged he received a color television set at 5:30 a.m. on June 21, 1985. He pleaded guilty to that charge on February 27, 1986. He was sentenced to three year concurrent terms on each of these offenses. The trial court originally suspended his sentences in the above actions, but on October 22, 1987, revoked his probation and ordered the sentences executed. In Cause No. 861-02795 Gilliehan was charged with tampering in the first degree in violation of Section 569.080.1(2) RSMo. Gilliehan was found guilty by a jury on September 27, 1987. The trial court found Gilliehan to be a prior offender on December 4, 1987 and sentenced him to five years imprisonment, to be served concurrently with his other sentences.

At the plea hearing the state also introduced evidence that defendant had served not less than 120 days in the Department of Corrections on these sentences. The trial court found Gilliehan to be a persistent offender under § 558.021 and a Class X offender under § 558.019. The court honored the plea bargain agreement and sentenced Gilliehan to concurrent four year terms on the burglary and stealing charges and a concurrent one-year term on the charge of resisting arrest.

Upon further questioning by the trial court, Gilliehan indicated that he had no reason to believe his attorney had not done a good job for him and that there was nothing that he had asked his attorney to do that his attorney had refused or failed to do. The trial court found no evidence of ineffective assistance of counsel and indicated that he personally considered that defense counsel had made a good Disposition by the plea bargain.

On July 6, 1992 Gilliehan filed a pro se motion for post-conviction relief under Rule 24.035. His appointed attorney filed an amended motion on September 23, 1992. In his pro se motion, Gilliehan alleged his counsel was ineffective in that he had failed to object to the Class X offender finding. In his amended motion, he incorporated his pro se motion and alleged that his counsel was ineffective, among other reasons, in failing to object to the trial court's finding of Class X offender status and failing to advise him of the consequences of being sentenced as a Class X offender. He also alleged that the trial court erred in sentencing him as a Class X offender because he had only two previous felony convictions committed at different times. On December 9, 1992 the trial court issued findings of fact and Conclusions of law and denied the motion without an evidentiary hearing.

We first address Gilliehan's claim that the motion court erred in denying relief without an evidentiary hearing to determine if he was in fact a Class X offender. He asserts that he had only two prior felony convictions, rather than three, because the two convictions of receiving stolen property must be counted as one because they were committed at the same time. He further asserts in this point that trial counsel was ineffective in failing to contest "the state's contention" that he was a Class X offender.

A Class X offender is one who has been convicted of three previous felonies committed at different times. § 558.019.4. Gilliehan claims there is a factual issue as to whether the two convictions for receiving stolen property on June 21, 1985 involved offenses occurring at different times. We disagree.

The fact that the two crimes were committed on the same date does not mean that they could not have been committed at different times. State v. Davis, 611 S.W.2d 384, 386 (Mo. App. 1981). The only evidence pertaining to when the prior offenses were committed were the certified copies of the record of Gilliehan's three prior convictions. These records, which include the indictments, establish that Gilliehan was separately charged and convicted of receiving stolen property, a color television, at 5:30 a.m. on June 21, 1985, and also charged and convicted of receiving stolen property, an automobile engine, at 10:30 a.m. on the same day. The record of these two convictions conclusively establishes that the crimes were in fact committed at different times albeit on the same day. Gilliehan was properly sentenced as a Class X offender.

Under Rule 24.035(g), no hearing is required if the motion and the files and the record of the case show that the movant is not entitled to relief. No evidentiary hearing was required to re-prove Gilliehan's three prior convictions. The record refuted his allegation that he should not have been sentenced as a Class X offender. Further, Gilliehan is not entitled to relief on his claim that counsel was ineffective in failing to object to the Class X offender finding. Sufficient proof supported the finding and any objection would have been useless. State v. Scott, 829 S.W.2d 120, 122 (Mo. App. 1992). This point is denied.

Gilliehan's remaining point is that the trial court erred in denying his Rule 24.035 motion without an evidentiary hearing "because the motion alleged facts not refuted by the record and entitling appellant to relief in that the motion alleged that the failure of appellant's plea attorney to advise him of matters relating to Class X offender status rendered appellant's plea involuntary."

After a negotiated plea of guilty upon counsel's advice, a claim of ineffective assistance of counsel is relevant only to the extent that it affects the voluntariness and understanding with which the plea of guilty was made. Hagan v. State, 836 S.W.2d 459, 463 (Mo. banc 1992). "As with any guilty plea, an Alford plea is valid if it 'represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Fairley v. State, 770 S.W.2d 458, 459 (Mo. App. 1989) (quoting Alford, 400 U.S. at 31; 91 S. Ct. at 164). In order to make an ineffective assistance claim under these circumstances, a movant must show that counsel made errors so serious that counsel's representation fell below an objective standard of reasonableness and that counsel's mistakes were prejudicial. Hill v. Lockhart, 474 U.S. 52, 57, 106 S. Ct. 366, 369, 88 L. ...


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