Court of Appeals of Missouri, Eastern District, Second Division
from the Circuit Court of St. Louis County Honorable Robert
M. Hess, Chief Judge.
Townsend (Movant) appeals the motion court's denial,
without an evidentiary hearing, of her Rule
24.035 amended motion for post-conviction relief.
In her sole point relied on, Movant contends the motion court
erred by denying her motion without an evidentiary hearing
because Movant pleaded facts, unrefuted by the record, that
her plea counsel was ineffective for promising she would
receive probation in exchange for making a
blind Alford plea. We affirm.
2012, Movant acted with her mother and co-defendant, Cheryl
Moore, and her sister, Ronnica Moore, in forcibly entering an
apartment where Ronnica Moore's estranged husband, C.W.,
and his girlfriend, T.D. were residing. The State alleged
that all three women kicked and pushed T.D. and that Movant
hit her with a metal baseball bat. Movant was charged with
one count of first-degree burglary, a Class B felony, and one
count of second-degree assault, a Class C felony. In October
2013, Movant entered a blind Alford plea to both
counts, and the plea court accepted the plea.
failed to appear for her sentencing hearing scheduled for
November 2013 and a warrant was issued. Movant then appeared
at a later hearing in May 2014. At the hearing, the
sentencing court stated it reviewed a letter in which Movant
discussed her expectation of a probation sentence and her
representation issues with plea counsel. After questioning
Movant, the sentencing court found no probable cause for
ineffective assistance of counsel and sentenced Movant to
concurrent terms of seven years' imprisonment on Count I
of burglary in the first degree and seven years on Count II
of assault in the second degree.
October 2014, Movant filed a pro se Rule 24.035
motion seeking post-conviction relief. Counsel was appointed
and subsequently filed an amended motion alleging that plea
counsel's performance was ineffective because he told
Movant "she would receive the suspended imposition or
suspended execution of sentence and probation in exchange for
her blind, Alford plea to the charges." The
motion court denied the motion without an evidentiary
hearing, finding that Movant "entered her plea knowingly
and voluntarily, " because she was "examined
extensively on these issues by the Court during her plea of
guilty at the time of sentencing." This appeal follows.
review the denial of a Rule 24.035 post-conviction motion to
determine whether the findings of fact and conclusions of law
of the motion court are clearly erroneous. Rule 24.035(k).
Findings and conclusions are clearly erroneous, if, after a
review of the entire record, we are left with the definite
and firm impression that a mistake has been made. Mullins
v. State, 262 S.W.3d 682, 684 (Mo. App. E.D. 2008). In
order to be entitled to an evidentiary hearing on a Rule
24.035 motion, the following must be satisfied: (1) Movant
must allege facts which, if true, would warrant relief; (2)
the facts must not be refuted by the record; and (3) the
matters complained of must have resulted in prejudice to the
movant. Smith v. State, 353 S.W.3d 1, 3 (Mo. App.
E.D. 2011). If the motion court determines the record
conclusively establishes the movant is not entitled to
relief, the motion court shall deny an evidentiary hearing.
sole point, Movant contends the motion court clearly erred by
denying her motion for post-conviction relief without an
evidentiary hearing because plea counsel was ineffective for
promising that Movant would receive a suspended imposition or
suspended execution of sentence in exchange for her blind
Alford plea. She argues plea counsel's promise
rendered her plea unknowing, involuntary, and unintelligent,
and but for plea counsel's ineffectiveness, there is a
reasonable probability that she would not have pleaded guilty
and would have gone to trial. In response, the State asserts
that because Movant failed to appear for her sentencing
hearing in November 2013, the escape rule should apply,
waiving her right to appeal. In the alternative, the State
argues the motion court did not clearly err by denying
Movant's motion without an evidentiary hearing because
the record refutes Movant's claim that counsel rendered
State asserts that because Movant failed to appear for her
sentencing hearing in November 2012, Movant waived her right
to appeal under the "escape rule." Movant does not
address the escape rule in her brief.
judicially-created "escape rule" operates to deny
the right of appeal to a defendant who escapes justice.
Harvey v. State, 150 S.W.3d 128, 129 (Mo. App. E.D.
2004). "Whether or not to use the escape rule to dismiss
an appellant's claims of error rests within the sound
discretion of the appellate court." Id.
Although we do not condone Movant's failure to appear for
sentencing, this Court chooses not to invoke the escape rule.
We will address Movant's point on its merits.
Ineffective Assistance of Counsel
contends the motion court clearly erred by denying her motion
for post-conviction relief without an evidentiary hearing
because plea counsel was ineffective for promising she would
receive a suspended imposition or suspended execution of
sentence in exchange for her blind Alford plea. She
argues plea counsel's promise rendered her plea
unknowing, involuntary, and unintelligent, and but for plea
counsel's ineffectiveness, there is a reasonable
probability that she would not have pleaded guilty and would
have gone to trial. In response, the State argues the motion
court did not clearly err by denying Movant's motion
without an evidentiary hearing because the record refutes
Movant's claim that counsel rendered ineffective
testimony at her plea hearing directly refutes her claim that
her plea was involuntary. Even if plea counsel told Movant
she would receive probation in exchange for her guilty plea,
the record demonstrates it was not reasonable to believe his
prevail on a claim of ineffective assistance of plea counsel,
a movant must show that (1) counsel's performance did not
conform to the degree of skill, care, and diligence of a
reasonably competent attorney, and (2) counsel's
deficient performance prejudiced the movant."
Burnett v. State, 311 S.W.3d 810, 817 (Mo. App. E.D.
2009). "When pleading guilty, a defendant waives any
claim that defense counsel was ineffective except to the
extent that counsel's conduct affected the voluntariness
and knowledge with which the plea was made." Nichols
v. State, 409 S.W.3d 566, 569 (Mo. App. E.D. 2013)
(citations and quotations omitted). To establish prejudice
where a movant has pleaded guilty, the movant must show that
but for counsel's errors, he would not have pleaded
guilty and would instead have insisted on proceeding to
trial. Smith, 353 S.W.3d at 3. When Movant has
alleged that he was misled by plea counsel, he must show that
his belief in his plea counsel's statements was
reasonable. Shackleford v. State, 51 S.W.3d 125, 129
(Mo. App. W.D. 2001). "A defendant's mistaken belief
about the terms of his sentence can vitiate his sentence only