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Burnett v. State

Court of Appeals of Missouri, Western District, Second Division

December 2, 2014

CHARLES W. BURNETT, Appellant,
v.
STATE OF MISSOURI, Respondent

Page 801

APPEAL FROM THE CIRCUIT COURT OF CLINTON COUNTY, MISSOURI. THE HONORABLE JASON A. KANOY, JUDGE.

S. Kate Webber, for Appellant.

Shaun Mackelprang, for Respondent.

Before Division Two: Victor C. Howard, Presiding Judge, James E. Welsh, Judge and Anthony Rex Gabbert, Judge. All concur.

OPINION

VICTOR C. HOWARD, JUDGE

Page 802

Charles Burnett appeals the denial of his Rule 24.035 motion for post-conviction relief after an evidentiary hearing. Burnett argues that the record does not contain a factual basis for his guilty plea to receiving stolen property. He claims that he was denied effective assistance of counsel when plea counsel did not seek to withdraw his guilty plea when probation under the plea agreement became impossible and imprisonment unavoidable. Burnett also complains the trial court's findings of fact and conclusions of law were not sufficiently specific regarding his claims that his plea counsel had a conflict of interest and that the plea court had categorically refused to consider the full range of punishment. As to Burnett's claim that the trial court's findings of fact and conclusions of law were not sufficiently specific regarding his claim that the plea court categorically refused to consider the full range of punishment, the motion court's judgment is reversed, and the cause is remanded for entry of findings of fact and conclusions of law that comply with Rule 24.035(j). In all other respects, the judgment is affirmed.

Background

In August of 2008, Burnett was charged with receiving stolen property in violation of section 570.080, RSMo. The information alleged that Burnett, " with the purpose to deprive the owner of a 4-wheeler, a John

Page 803

Deere toolbox, a double strand of pearls and many other items, retained such property, of a value of at least five hundred dollars, knowing that they had been stolen."

Burnett executed a written petition to enter a guilty plea, in which he stated that " [i]n Dec[ember] 2007 Shawn Burnett brough[t] over a four[-]w[heel]er to my dad[']s house where I fixed it for him[.]" The petition consisted of seven pages, which also stated, among other things, that Burnett understood that he was charged with receiving stolen property, told his lawyer all the facts and circumstances about the charges made against him, that his lawyer counseled and advised him on the nature of the charge and all possible defenses, and that the court was not bound by any plea-bargain and could impose any punishment within the lawful range of punishment, and that he was informed of the range of punishment the law provided for. The petition contained a provision specifically expressing that Burnett knew that by pleading guilty, his probation or parole could be revoked and he could be required to serve time in cases for which he was on probation or parole, which could be consecutive to the sentence in the guilty plea case. The document stated that Burnett had been advised that the court was not bound by the prosecutor's promised recommended sentence. Burnett signed each of the seven pages of the petition including the final page, which stated that he had read and his attorney had explained to him the petition.

A guilty plea hearing was held during which the court asked Burnett if he had reviewed the petition, signed each page indicating that he read and understood the contents of each page, and understood the document in its entirety. Burnett responded affirmatively. Burnett also testified that he understood the charges against him, that he was in possession of a four-wheeler that had been stolen, and that he thought the four-wheeler was worth approximately $2,500. When the court asked how he came to possess the four-wheeler and whether he knew it was stolen, Burnett said his cousin brought it to his house and he did not know it was stolen at the time but rather came into that information later.

The court asked the State what its evidence would be if the case were to go to trial. The State said it would present evidence that Burnett was in possession of the four-wheeler that was worth approximately $2,500, as well as " a John Deere toolbox with an estimated value of $1,400, a double strand [of] pearls with an estimated value of $800 in addition to eight other pages of items . . . that were stolen goods." When the court asked Burnett if he disputed any of what the prosecutor had just said, he replied that a lot of the things on the list were not stolen. However, when the court asked if he did agree that the four-wheeler was stolen and that it was worth over $500, Burnett said, " Yes."

The court also reiterated to Burnett that if it accepted his plea, it was not required to follow the State's recommendation, and that it could sentence him to the maximum of seven years imprisonment, and then asked if Burnett understood, and he said, " Yes." Finally, the court asked if Burnett was pleading guilty because he was, in fact, guilty and for no other reason, and he again replied, " Yes, sir."

The court then found Burnett's plea was freely and voluntarily made with a full understanding of the charges and consequences of the plea, and that there was a factual basis for the plea. The court therefore accepted Burnett's guilty plea and found him ...


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