Court of Appeals of Missouri, Southern District, Second Division
DARREN S. SMITH II, Movant-Appellant,
STATE OF MISSOURI, Respondent-Respondent
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY. Honorable Michael J. Cordonnier, Circuit Judge.
For Movant: Margaret M. Johnston, Columbia, MO.
For Respondent: Chris Koster, Attorney General, Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO.
GARY W. LYNCH, J. - Opinion author. MARY W. SHEFFIELD, P.J. - concurs. NANCY STEFFEN RAHMEYER, J. - concurs.
GARY W. LYNCH, J.
Darren Smith (" Movant" ) appeals the denial of his Rule 24.035 motion for post-conviction relief alleging ineffective assistance of counsel. Movant claims that the motion court clearly erred in overruling his motion because plea counsel failed to act as a reasonably competent attorney when he advised Movant to delay acceptance of a plea offer without advising Movant that the plea offer could be withdrawn at any time. We do not reach the issue of whether plea counsel failed to advise Movant as alleged because even if so, the motion court's finding that Movant was not prejudiced by that failure was not clearly erroneous in that Movant failed to persuade the motion court that he declined the plea offer for that reason. Finding no clear error in the motion court's denial of Movant's motion, we affirm.
Factual and Procedural Background
In reviewing the denial of a motion for post-conviction relief " we view the record in the light most favorable to the motion court's judgment, accepting as true all evidence and inferences that support the judgment and disregarding evidence and inferences that are contrary to the judgment." Hardy v. State, 387 S.W.3d 394, 399 (Mo.App. 2012). The following is set forth in accordance with that standard.
Movant was charged with one count of trafficking a controlled substance, see section 195.223, and two counts of unlawful use of a weapon, see section 571.030, in Greene County. While these charges were pending, Movant pleaded guilty to an unrelated voluntary manslaughter charge in Wright County. Movant was thereafter offered a plea agreement in Greene County, which provided that the sentences imposed in the Greene County cases would run concurrent with the ten-year sentence to be imposed in the Wright County case, in accordance with the plea agreement there.
Movant was confident that there would be no witnesses to testify against him in the Greene County cases. Because of this belief, he was not open to entering a plea at all. Movant only became open to accepting the plea on the morning of trial, when he realized that the state's witnesses were available and ready to testify against him. By that time, however, the State would only offer a plea agreement that provided for sentences that would be served consecutive to the sentence already imposed in the Wright County case.
On the morning of trial, Movant pleaded guilty to the Greene County charges without the benefit of any plea agreement. Before accepting Movant's plea, Movant communicated to the court that he had had enough time to meet with his attorney to go over the case, that he was satisfied with his attorney's work, and that he understood that he was giving up his right to a trial. Movant also indicated that he understood that the sentencing judge had complete discretion over what range ...