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10/12/93 CALVIN R. KELLEY v. STATE MISSOURI

October 12, 1993

CALVIN R. KELLEY, APPELLANT,
v.
STATE OF MISSOURI, RESPONDENT.



Appeal from the Circuit Court of St. Louis County. Hon. Steven H. Goldman.

Robert E. Crist, Judge, Crandall, P.j., and Reinhard, J., concur.

The opinion of the court was delivered by: Crist

On February 27, 1992, Defendant was charged as a prior offender and Class X offender with first degree burglary, armed criminal action, and stealing under $150. Pursuant to his plea agreement, Defendant pleaded guilty to the charge and the State dismissed charges of prior offender and Class X offender. One week later, the trial court sentenced Defendant to concurrent sentences of ten years for first degree burglary, three years for armed criminal action, and one year for stealing under $150. Defendant filed a timely Rule 24.035 motion, which the motion court denied without an evidentiary hearing. We affirm.

In his sole point on appeal, Defendant argues his guilty plea was rendered involuntary because of his attorney's lack of effective assistance. Specifically, Defendant avers his attorney coerced him to plead guilty because she threatened to withdraw unless he pled guilty, she told him to prepare for trial on a day's notice, and she refused to investigate his alibi witness.

This court reviews the motion court's action only to determine if its findings of facts and Conclusions of law are clearly erroneous. Rule 24.035 (j). The motion court shall not hold an evidentiary hearing if the record conclusively shows Defendant is not entitled to relief. Rule 24.035(g). Further, Defendant is entitled to an evidentiary hearing only if he alleges facts which would warrant relief; the allegations are not refuted by the record; and the matters complained of resulted in prejudice to him. Chatman v. State, 766 S.W.2d 724, 725 [1] (Mo. App. 1989).

The motion court did not clearly err in finding Defendant's claim was refuted by the record. Defendant testified at his guilty plea hearing he had enough time to consult with his attorney regarding the facts and legal strategy of his case. He further testified she had never refused to do anything he wanted, she had answered all his questions, he had no complaints or criticisms of her services, and he was satisfied with her services. He stated no one, such as his attorney, needed to do any further investigation into his case, including looking for witnesses or evidence. He also stated no one had threatened, intimidated, mistreated, or in any way forced him to plead guilty against his will. "Where a movant assures the trial court at his guilty plea hearing that he is satisfied with his trial counsel's performance, the movant cannot later claim the contrary." Fox v. State, 819 S.W.2d 64, 67 [7] (Mo. App. 1991).

However, Defendant argues the record does not refute his claim because he did make statements of dissatisfaction at his later sentencing hearing. At that hearing, Defendant stated he felt like he did not have enough time to talk with his attorney. However, upon further inquiry by the trial court, Defendant indicated he did not believe this failing had affected his decision to plead guilty:

: . . . Do you feel that this was still in your best interest to do what you did? You feel comfortable she was relying on her -- that she was helping you decide on best the strategy for your case even though you may not have talked to her as much as you would have liked?

: I suppose so, Your Honor.

: The result of all this was a plea bargain. You knew what the State was recommending in exchange for your plea of guilty?

: Yes, sir.

: Is the sentence of ten years that I just imposed on you what you understood the plea bargain was for?

: Yes, sir.

: Other than that plea bargain, did Miss Taylor or anybody else for that matter ever communicate any threats or promises to you in order to ...


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