Court of Appeals of Missouri, Western District, Second Division
FREDERICK W. THORNTON, Appellant,
STATE OF MISSOURI, Respondent
APPEAL FROM THE CIRCUIT COURT OF DEKALB COUNTY, MISSOURI. THE HONORABLE THOMAS NICHOLS CHAPMAN, JUDGE.
Damien De Loyola, for Appellant.
Gregory L. Barnes, for Respondent.
Before Division Special Division: Zel Fischer, Special Judge Presiding, Joseph M. Ellis, Judge and Victor C. Howard, Judge. All concur.
VICTOR C. HOWARD, JUDGE
Frederick Thornton appeals from the judgment of the motion court denying his Rule 24.035 motion for postconviction relief following an evidentiary hearing. Thornton pleaded guilty to second degree felony murder and driving while intoxicated as an aggravated offender pursuant to a plea agreement with the prosecutor, and he was sentenced to a longer sentence than the prosecutor had recommended. Thornton sought to vacate his convictions and sentences arguing that plea counsel was ineffective for affirmatively misadvising him that he would not receive a sentence longer than the prosecutor's recommendation and that if he did, he could withdraw his guilty plea. He raises six points on appeal challenging the motion court's denial of his motion. The judgment is affirmed.
In September 2011, Thornton was charged by first amended information with second-degree felony murder, armed criminal action, driving while intoxicated-aggravated offender, and leaving the scene of an accident. Thornton pleaded guilty to felony murder and DWI-aggravated offender pursuant to a plea agreement in which the prosecutor agreed to nolle prosequi the charges of armed criminal action and leaving the scene of a motor vehicle accident and to recommend a cap of punishment at 20 years for felony murder and 5 or 6 years for DWI-aggravated offender.
At the plea hearing, Thornton admitted the following factual basis for the plea. On January 28, 2011, Thornton was driving his truck in Cameron while intoxicated when he ran a red light at an intersection and collided with the vehicle driven by Laura Fisher. Ms. Fisher died as a result of the crash. Thornton fled the scene but was quickly apprehended. A breathalyzer test showed Thornton's blood alcohol content was .215. Thornton had three previous driving while intoxicated convictions, the latest for which he was on probation at the time of the accident.
Thornton expressed his understanding of his numerous rights and his waiver of them. He testified that he felt he had been treated fairly by law enforcement and that he had no complaints about his attorney's representation of him. He further stated that he had not been threatened or coerced to plead guilty and had not been promised anything other than the State's recommendation. Thornton then expressed his understanding of the range of punishment:
THE COURT: What are the range of penalties on each count, [Prosecutor]?
PROSECUTOR: Your Honor, on Count 1 [felony murder] it's up to life which is imputed at 30 years; and then on Count 3 [DWI-aggravated offender] it's up to 7 years in the Department of Corrections, up to 1 year in the county jail, up to $5000 fine or any combination of incarceration and fine.
THE COURT: Is that your understanding, [Defense Counsel]?
DEFENSE COUNSEL: Yes, sir.
THE COURT: All right. Mr. Thornton, do you understand that is the ...