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10/05/93 CARLOS F. GARCES v. STATE MISSOURI

October 5, 1993

CARLOS F. GARCES, APPELLANT,
v.
STATE OF MISSOURI, RESPONDENT.



APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY. Honorable Don Bonacker, Judge

Montgomery, Parrish, Shrum

The opinion of the court was delivered by: Montgomery

This is an appeal from the denial, without an evidentiary hearing, of movant's motion for post-conviction relief under Rule 24.035. We affirm.

In his underlying criminal case, movant was charged with trafficking drugs in violation of § 195.223, RSMo Supp. 1992. He pleaded guilty and was sentenced to a fifteen-year-term of imprisonment.

Movant filed a pro se Rule 24.035 motion. Thereafter, counsel was appointed for him and an amended motion was filed. The amended motion alleged the attorney representing movant at the time of his guilty plea was ineffective in numerous respects and that movant's interpreter was "inadequate" because he could not understand her.

In denying movant's motion, the motion court found, inter alia, that the contentions in movant's motion were refuted by the record of the guilty plea proceedings. Specifically, the court found the following: (1) the interpreter testified under oath to her ability to communicate with movant in his language (Spanish) and that she was born and raised in Colombia, which is movant's native country; (2) the interpreter was duly appointed and sworn as the official interpreter for movant; and (3) movant testified under oath that he did not rely on any promises in pleading guilty.

The applicable scope of review in this case is set forth in Edmonds v. State, 819 S.W.2d 90 (Mo.App. 1991).

This court's review is limited to making a determination of whether the motion court's findings and Conclusions are clearly erroneous. Rule 24.035(j) . . . . Further, since movant pleaded guilty to the underlying criminal charges, "any claim of ineffective assistance of counsel is immaterial except to the extent it impinged upon the voluntariness and knowledge with which the plea of guilty was made." Jenkins v. State, 788 S.W.2d 536, 537 (Mo.App. 1990).

Id. at 91.

Where a claim of ineffective assistance of counsel is made, "the focus is on (1) counsel's performance, and, (2) if that performance is deficient, whether prejudice resulted from counsel's breach of duty." Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).

Movant's single point on appeal is that the motion court erred in denying his motion without an evidentiary hearing because the record of the hearing at which he pleaded guilty does not refute the allegations he made in his motion. Movant asserts his counsel was ineffective in four respects:

(1) Counsel threatened him with a life sentence if he did not plead guilty;

(2) Counsel failed to obtain an "adequate" interpreter whom movant could understand, and failure to do so affected his ability to enter a plea in a knowing and voluntary fashion;

(3) Counsel misadvised movant through the interpreter that he would be sentenced to ten years and would be considered for deportation to ...


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