Court of Appeals of Missouri, Eastern District, First Division
Appeal from the Circuit Court of the City of St. Louis. Honorable Thomas J. Frawley.
FOR APPELLANT: Andrew E. Zleit, St. Louis, Missouri.
FOR RESPONDENT: Dora A. Fichter, Jefferson City, Missouri.
Lisa S. Van Amburg, Chief Judge. Lawrence E. Mooney, P.J. and Clifford H. Ahrens, J. concur.
Lisa S. Van Amburg, Chief Judge
D'Andre Hayes appeals the judgment of the Circuit Court of the City of St. Louis denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. On appeal, Hayes contends the motion court clearly erred in denying, without an evidentiary hearing, his claim that he received ineffective assistance of counsel. Because we hold that Hayes's allegation of ineffective assistance of counsel is not refuted by the record, we reverse and remand for an evidentiary hearing.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2012, Hayes was indicted on two counts of robbery in the first degree, in violation of section 569.020, and two counts of armed criminal action, in violation of section 571.015. In January 2013, Hayes pled guilty to all four counts pursuant to a plea agreement, and was sentenced to concurrent terms of imprisonment totaling thirteen years in the Missouri Department of Corrections, of which he was required to serve the statutory mandatory minimum of eighty-five percent.
Following his conviction, Hayes timely filed a pro se post-conviction motion for relief, later amended by appointed counsel, alleging he received ineffective assistance of plea counsel. In his amended motion, Hayes alleged, inter alia, that his attorney incorrectly advised him that if he pled guilty to the four counts, he would only have to serve " two to three more years" in prison. The motion court denied Hayes's motion without an evidentiary hearing. In its order, the court concluded that Hayes's claim was refuted by the record, because he stated under oath that he understood the ranges of punishment, understood the plea agreement, and no promises had been made, other than the plea agreement, to induce his plea. This appeal follows.
STANDARD OF REVIEW
This Court's review of the denial of a Rule 24.035 motion is limited to a determination of " whether the motion court's findings and conclusions are clearly erroneous." Webb v. State, 334 S.W.3d 126, 128 (Mo. banc 2011) (citing Rule 24.035(k)). " On review, the motion court's findings and conclusions are presumptively correct." Wooldridge v. State, 239 S.W.3d 151, 154 (Mo. App. E.D. 2007). " The motion court's findings and conclusions are clearly erroneous only if, after a review of the record, the appellate court is left with the ...