Court of Appeals of Missouri, Eastern District, Third Division
FRANKLIN R. VOEGTLIN, Appellant,
STATE OF MISSOURI, Respondent
Appeal from the Circuit Court of the City of St. Louis. Honorable Thomas J. Frawley.
Lisa M. Stroup, St. Louis, MO, for appellant.
Chris Koster, Shaun J. Mackelprang, Jefferson City, for respondent.
Kurt S. Odenwald, Presiding Judge. Robert G. Dowd, Jr., Concurs. Gary M. Gaertner, Jr., Concurs.
Kurt S. Odenwald, Presiding Judge
Appellant Franklin R. Voegtlin (" Voegtlin" ) appeals from the judgment of the motion court denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. Voegtlin pleaded guilty to one count of the Class C felony of stealing by deceit at least $500. Voegtlin was sentenced as a prior and persistent offender to ten years' imprisonment. Voegtlin subsequently filed a Rule 24.035 motion for post-conviction relief alleging ineffective assistance of plea counsel, which the motion court denied without an evidentiary hearing.
Voegtlin now contends on appeal that the motion court clearly erred in denying his motion for post-conviction relief without an evidentiary hearing because he alleged facts not refuted by the record that would entitle him to relief on his ineffective assistance of counsel claim. Specifically, Voegtlin contends that plea counsel rendered ineffective assistance of counsel by (1) erroneously advising Voegtlin that if he pleaded guilty he would be sentenced to a term of ten years' imprisonment, with execution of the sentence suspended, and placed on four years' probation; (2) failing to investigate Voegtlin's claim that he had a claim of right to the money he was accused of stealing; (3) failing to advise Voegtlin that if he were to be sentenced to prison, he would be required to serve a minimum of 40% of the sentence; and (4) failing to object when Voegtlin was classified as a prior and persistent offender. Voegtlin additionally contends that the motion court erred in failing to include sufficient findings of fact and conclusions of law in its judgment on the issue of plea counsel's failure to object to Voegtlin's prior and persistent offender classification.
Because the record of the guilty plea hearing directly refutes Voegtlin's claim that his plea was involuntary, the motion court did not clearly err in denying Voegtlin's ineffective assistance claim without an evidentiary hearing with respect to Points One and Two. Because Voegtlin failed to allege facts warranting relief on his claim of ineffective assistance of counsel with respect to Point Three, the motion court did not clearly err in denying Voegtlin's claim without an evidentiary hearing. Finally, because the trial court did not issue any conclusions of law with respect to Voegtlin's claim relating to his prior and persistent offender classification, we remand Point Four to the motion court with instructions to provide specific conclusions of law addressing the prior and persistent offender issues raised by Voegtlin in his motion for post-conviction relief as required by Rule 24.035(j). Accordingly, we remand with instructions as to Point Four only and affirm the remainder of the motion court's judgment.
Factual and Procedural History
Voegtlin was charged with one count of stealing by deceit at least $500, a Class C felony. Voegtlin was accused of stealing $1,050 from Ashley Draper (" Draper" ) by falsely holding himself out as the property manager for Bruce Cilo (" Cilo" ), Draper's landlord. Voegtlin represented to Draper that he was authorized to accept Draper's security deposit and first month's rent on Cilo's behalf. Once Draper paid Voegtlin the $1,050, Voegtlin kept the money, claiming that Cilo owed him payment for work Voegtlin had previously performed for Cilo.
On March 6, 2013, the State filed a substitute information in lieu of indictment charging Voegtlin as a prior and persistent offender. The substitute information alleged that Voegtlin had two prior felony convictions; one conviction for stealing in Washington County on May 1, 2006, and the other conviction for stealing in Jefferson County on April 20, 2006. That same day, Voegtlin entered a plea of guilty before the trial court on the charges set forth in the substitute information.
At the plea hearing, the trial court asked Voegtlin a series of questions to determine whether his guilty plea was made voluntarily and intelligently. Voegtlin confirmed that he understood the charge against him and was aware that he did not have to plead guilty. The trial court explained Voegtlin's right to a jury trial and the rights associated with a jury trial. Voegtlin confirmed that he understood his rights, and further understood that he was giving up his rights by pleading guilty.
The trial court also questioned Voegtlin about his prior convictions and asked him if he had pleaded guilty to any prior crimes. Voegtlin stated that he had pleaded guilty before, but was not sure of the dates. Voegtlin stated that he believed he pleaded guilty to a stealing charge in 1994, and confirmed that he also pleaded guilty to a charge of stealing in 2006.
The State outlined the evidence it would have presented had the case gone to trial. The prosecutor stated that the evidence would show that Voegtlin " appropriated U.S. currency of a value of at least $500, which property was in the possession of Ashley Draper." The prosecutor elaborated that Voegtlin appropriated the money from Draper with the intent to deprive her thereof by deceit, in that he represented to Draper that he was an agent of her landlord and could accept her rental payment. Draper relied on this representation, which, the prosecutor explained, was false and known by Voegtlin to be false. The prosecutor noted that the State would offer the testimony of Cilo, who would testify that he had occasionally employed Voegtlin as a handyman, but that he had never authorized Voegtlin to rent Cilo's units or collect rent money on his behalf. The prosecutor further stated that Draper gave Voegtlin $525 for a deposit, followed by another $525 for the first month's rent. When Cilo became aware of the situation, he reported the incident to the police and gathered receipts showing that Voegtlin had collected payments from Draper in the form of cash.
Voegtlin admitted that he committed the acts described by the prosecutor. Voegtlin then stated " I worked for Mr. Bruce Cilo and he did give me permission to rent the apartments." Voegtlin further stated that Cilo had given him permission to rent the apartments, and that he worked for Cilo and Cilo owed him money. Voegtlin admitted that he helped Draper move into the apartment, took her money, but did not give the rent money to Cilo because Cilo owed him money. The trial court questioned whether Voegtlin was asserting a defense to the charge. Plea counsel responded by stating " [w]ell, he's got a defense, but he still took it when he knows he shouldn't have." Voegtlin agreed, stating " I shouldn't have taken it, I wish I would have given him the money." Plea counsel explained that because Voegtlin knew Draper's money was supposed to be paid to Cilo, and because he admitted taking the money and not giving it to the rightful owner, Voegtlin's actions met the criteria for stealing by deceit. The prosecutor agreed that the elements of stealing by deceit had been met because Voegtlin " never gave the rental payment that Miss Draper thought was for her rent to the landlord." The trial court asked Voegtlin whether there was anything he wanted to correct about what the prosecutor had said. Voegtlin replied " [n]o, sir."
The trial court then proceeded to discuss the range of punishment. The trial court asked the prosecutor whether he intended to prove that Voegtlin was a prior and persistent offender. The prosecutor confirmed that he did, and the following exchange took place:
Prosecutor: Defendant is a prior offender and also a persistent offender and is punishable by a sentence to an extended term of imprisonment, specifically that of a Class B felony under Sections 558.016 and 557.036 in that he has pleaded guilty to, been found guilty of, or been convicted of two or more felonies committed at different times. Those felonies are as follows: On May I", 2006, the defendant pled guilty to the felony of stealing in Cause No. 05D9-CR00310 in the Circuit Court of Washington County, State of Missouri; and second on April 20th, 2006, the defendant pied guilty to the felony of stealing in Cause No. 23CR305-3179 in the Circuit Court of Jefferson County, State of Missouri. The Class C felony with the enhanced --
Trial Court: Hang on. Do your records reflect, Mr. Martin, that the defendant had counsel on both occasions?
Prosecutor: Yes, your honor.
The trial court announced that it had found beyond a reasonable doubt that Voegtlin had pleaded guilty to felony stealing on May 1, 2006 in Washington County and had pleaded guilty to felony stealing on April 20, 2006 in Jefferson County. Based on these convictions, the trial court found beyond a reasonable doubt that Voegtlin was a " prior and persistent offender pursuant to Section 558.016 and therefore is sentencible (sic) pursuant to Sections 557.036 and 558.016."
Plea counsel and the prosecutor then outlined the range of punishment available to the trial court, ranging from one to fifteen years in prison. Voegtlin confirmed that he understood the range of punishment. The prosecutor presented the State's sentencing recommendation of ten years' imprisonment. Plea counsel responded by requesting a sentencing assessment report (" SAR" ) and asking the trial court to lower Voegtlin's bond.
The trial court proceeded to question whether Voegtlin had been promised " anything about [his] sentence" in order to get him to plead guilty. Voegtlin denied that he had been promised anything about his sentence. Voegtlin also denied that anyone had promised him he would receive probation, and denied that anyone had told him the trial court would give him probation. Voegtlin confirmed that he understood he could not " take back" his guilty plea if he did not like the sentence imposed by the trial court. The trial court then asked Voegtlin a series of questions about plea counsel's performance and investigation. Voegtlin confirmed that he told plea counsel all of the facts surrounding the crime with which he had been charged, that plea counsel had fully answered his questions, and that plea counsel had done all that Voegtlin had asked her to do. Voegtlin additionally confirmed that he gave plea counsel the names of the witnesses he would have wanted to testify on his behalf at trial, and that plea counsel had done " whatever investigation [Voegtlin] wanted her to do." Finally, Voegtlin confirmed that he had no complaints with plea counsel.
Before hearing Voegtlin's guilty plea, the trial court questioned Voegtlin to determine whether he was pleading guilty voluntarily and of his own free will. Voegtlin denied that anyone had threatened him, intimidated him, mistreated him, or in any way forced him to plead guilty against his free will. Voegtlin denied that anyone told him to withhold any information from the trial court, and confirmed that he had told the truth throughout the plea hearing. Voegtlin then pleaded guilty to the charge against him, before again confirming that he was pleading guilty of his own free will. The trial court accepted Voegtlin's guilty plea, finding beyond a reasonable doubt that " the defendant's plea of guilty is made knowingly, voluntarily, and intelligently with a full understanding of the charge and the consequences of the guilty plea, and with a full understanding of his rights in a jury trial and the effect of the plea of guilty on those rights." The trial court also found a factual basis for the guilty plea. The trial court ordered an SAR, but denied plea counsel's request to reduce Voegtlin's bond.
Voegtlin reappeared before the trial court on May 2, 2013, for sentencing. At the sentencing hearing, the prosecutor offered a victim impact statement from Draper. Plea counsel noted that the SAR revealed that Voegtlin had an extensive drug abuse history and requested that Voegtlin be placed in a drug treatment program rather than sentenced to prison. The trial court denied this request, and plea counsel requested a sentence of less than the ten years recommended by the State. The trial court sentenced Voegtlin to ten years' imprisonment. The trial court concluded by questioning Voegtlin as to plea counsel's assistance:
Trial Court: Did you have enough time to discuss the charge with [plea counsel] before you pied guilty?
Voegtlin: Yes, sir.
Trial Court: Did she answer all your ...