APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY. Honorable Thomas McGuire, Judge
Appellant's Motion for Rehearing or Transfer Filed November 3, 1993. Appellant's Motion for Rehearing Overruled. Motion for Transfer Denied November 10, 1993.
Flanigan, Prewitt, Garrison
The opinion of the court was delivered by: Flanigan
Movant Ronald Spradling appeals from a denial, after evidentiary hearing, of his Rule 24.035 *fn1 motion, seeking to vacate a judgment and sentence on a plea of guilty to a four-count information charging assault in the first degree, kidnapping, and two offenses of armed criminal action. Movant was sentenced to 15 years' imprisonment on each count, to be served concurrently.
Movant contends that he was entitled to relief on his motion, and the trial court erred in ruling otherwise, because movant was coerced into entering his guilty plea, and movant was denied effective assistance of counsel in connection with the entry of his plea. Movant asserts that he would not have pleaded guilty if his plea had not been coerced and if he had received effective assistance of counsel.
Appellate review of the trial court's ruling on the motion is limited to a determination of whether the findings and Conclusions of the trial court are clearly erroneous. Rule 24.035(j). The findings and Conclusions of the trial court are deemed clearly erroneous only if, after review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made. Day v. State, 770 S.W.2d 692, 695-696 (Mo.banc 1989).
Movant's first point is that the trial erred in denying him relief on his motion because his guilty plea was coerced. The alleged coercion consisted of the following: (a) movant's counsel at the guilty plea was a substitute counsel [lawyer 2], who was not familiar with the case and was not prepared to go to trial; (b) movant's prior counsel [lawyer 1], three days before the trial date, "threatened movant with four life sentences if movant would not enter a guilty plea," refused to discuss trial strategy with movant, and was not available or prepared to go to trial that morning; (c) at the guilty plea hearing the court told movant that if he did not enter a guilty plea that morning a jury was waiting outside the courtroom to hear the case; and (d) the court failed to inquire whether movant's plea was voluntary or the result of threats or promises apart from the plea agreement.
Movant's second point is that he was denied effective assistance of counsel prior to entering his guilty plea, and the trial court erred in ruling otherwise, because counsel was ineffective: (a) in failing to inform movant of the elements of each offense to which he pleaded guilty; and (b) in failing to inform movant that one of the charged offenses, armed criminal action, carried a mandatory minimum sentence of three years before eligibility for parole. Movant's two points will be considered together.
At the guilty plea hearing, held on February 17, 1987, the state appeared by an assistant prosecuting attorney, and movant appeared in person and by lawyer 2, an assistant public defender. Lawyer 2 informed the court that lawyer 1, also a public defender, had been representing movant but could not be present because of road conditions due to bad weather. Lawyer 2 informed the court that, pursuant to a plea agreement, movant wished to withdraw his former pleas of not guilty and to enter a plea of guilty to each of the four counts of the amended information. Movant stated that he wanted to proceed with lawyer 2 representing him. The court informed movant that before he could accept his pleas of guilty he needed to question him to determine if they were voluntary and informed.
Under questioning by the court, movant testified: I am satisfied with the way I have been advised and represented by lawyer 1 and lawyer 2, and I have no complaint about their representation; I have had all the time I need to visit with lawyer 1 about the matter; I understand what rights I am waiving by entering pleas of guilty [the court had earlier informed movant of the rights being waived]; a plea agreement had been reached with the prosecutor; the plea agreement was for a sentence of 15 years on each of the four counts, the sentences to run concurrently; I understand the plea agreement, which contemplates immediate sentencing and no probation; other than the plea agreement, nothing has been promised me.
Lawyer 2 informed the court that he had talked to lawyer 1 that morning, and lawyer 1 had discussed with movant the range of punishment for the offenses in the event the case went to jury trial. At the request of the court, the prosecutor "for the record" correctly stated what the range of punishment was for each of the four charged offenses. Movant stated that he was not taking any medication and that he understood what had been discussed at the hearing.
The court informed movant that the court would read to him the amended information, and did so. After the information was read, the court asked movant if those were the four counts to which he wanted to plead guilty and movant answered, "Yes." The court asked movant if he knew what was alleged in the information and movant said, "Yes," and that he did what the information said he did. The court said he realized that lawyer 2 was not the attorney who prepared the case for trial and that lawyer 1 did that, and that the court understood that lawyer 1 and lawyer 2 had discussed the matter by telephone, that lawyer 1 had planned to be present for the plea proceeding and had conferred extensively with movant. Lawyer 2 informed the court that he did not know of any reason why the court should not accept movant's pleas of guilty. The court stated that it accepted the guilty pleas and found them to be knowing and voluntary and entered with an understanding of the nature of the charges. The court further found there was a factual basis for the pleas and pronounced judgment and sentence in accordance with the plea agreement.
At the post-conviction hearing held on November 14, 1992, the three witnesses, all called by movant, were movant, lawyer 1, and lawyer 2. The offenses were committed on March 1 and March 2, 1986. Movant was arrested on March 2, 1986, and remained in jail until the plea hearing of February 17, 1987. On March 3, 1986, lawyer 1 was appointed to represent movant.
Movant admitted that he conferred with lawyer 1 eight or ten times, that lawyer 1 investigated his case, that a preliminary hearing was held, depositions were taken by lawyer 1, and three psychiatric evaluations were held. On February 14, 1987, movant conferred with lawyer 1 with respect to the proposed plea agreement. Movant said that as a result of that conversation, "It was my definite impression that if I didn't take the 15-year plea offer I would get four life ...