Court of Appeals of Missouri, Eastern District, Fourth Division
TERRY T. WATSON, Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of the City of St. Louis 1322-CC00457
Honorable Bryan L. Hettenbach
M. Gaertner, Jr., Judge
Watson (Movant) appeals the judgment of the motion court
denying his motion for post-conviction relief under Rule
29.15 without an evidentiary hearing, as well as
the motion court's denial of his motion to amend the
judgment. We reverse and remand for an evidentiary hearing on
the claims in Movant's Rule 29.15 motion.
State charged Movant with robbery in the first degree, armed
criminal action, resisting arrest, and trafficking in the
second degree. A jury convicted Movant of all charges except
armed criminal action, and the trial court sentenced Movant
to a total of 18 years' imprisonment. This Court affirmed
Movant's convictions and sentence on appeal. State v.
Watson. 386 S.W.3d 907 (Mo. App. E.D. 2013).
timely filed apro se motion to vacate, set aside, or
correct the judgment on February 11, 2013, and later an
amended motion through counsel. The motion court denied
Movant's amended motion without an evidentiary hearing,
finding that the record conclusively refuted all of
Movant's claims. Movant filed a motion to amend the
judgment under Missouri Rule of Civil Procedure 78.07(c),
arguing that his post-conviction counsel had abandoned him in
that she never consulted with him before filing an amended
motion and had substantially altered the factual allegations
in his original motion. The motion court denied Movant's
motion to amend the judgment, finding it amounted to an
allegation of ineffective assistance of post-conviction
counsel. This appeal follows.
review of the motion court's denial of a motion for
post-conviction relief is "limited to a determination of
whether the findings of fact and conclusions of law are
clearly erroneous." Hickey v. State, 328 S.W,
3d 225, 227 (Mo. App. E.D. 2010) (citing Rule 29.15(k)).
Findings and conclusions are clearly erroneous "only if,
after a foil review of the record, this Court is left with a
definite and firm impression that a mistake has been
made." Id. An evidentiary hearing on the claims
contained in the motion is warranted when (1) the motion
alleges facts, not conclusions, warranting relief; (2) the
facts alleged are not refuted by the record; and (3) the
matters complained of resulted in prejudice to the movant.
Teer v.State. 198 S.W.3d 667, 669 (Mo. App. E.D.
2006) (citing Morrow v. State. 21 S.W.3d 819, 822-23
(Mo. banc 2000)).
argues that the motion court clearly erred in denying his
amended Rule 29.15 motion without a hearing because he
alleged unrefuted facts showing that his trial counsel was
ineffective for failing to explain the elements of
first-degree robbery and of accomplice liability, causing him
to reject a more favorable plea offer. We discuss these
arguments together, and we find Movant was entitled to an
defendant has the right to effective assistance of counsel
during plea negotiations, as it is a "critical
stage" of the criminal proceeding. Williams v.
State. 367 S.W.3d 652, 654 (Mo. App. E.D. 2012) (citing
Lafler v. Cooper. 566 U.S. -, 132 S.C. 1376 (2012),
and Missouri v. Frye. 566 U.S. ___, 132 S.Ct. 1399
(2012)). In order to show his trial counsel was ineffective,
Movant had to allege unrefuted facts showing his
counsel's performance fell below the standard of skill,
care, and diligence of a reasonably competent attorney; and
that Movant was prejudiced in that but for counsel's
errors, the outcome would have been different.
Williams, 367 S.W.3d at 655 (citing Strickland
v. Washington. 466 U.S. 668, 687 (1984)). In the context
of plea negotiations, to show prejudice, Movant must allege
unrefuted facts "demonstrate[ing] a reasonable
probability [he] would have accepted the earlier plea offer
had [he] been afforded effective assistance of counsel."
Joseph v. State. 482 S.W.3d 457, 460 (Mo. App. E.D.
2016) (quoting Frye, 132 S.Ct. at 1409-10).
Movant's amended motion contains two allegations that his
trial counsel ineffectively advised him regarding the
State's plea offer of 10 years. First, he argues his
trial counsel misadvised him that in order for Movant to be
convicted of robbery in the first degree, the State would
have to prove that Movant's co-defendant used a gun to
forcibly take the victim's property, with "bodily
harm toward the victim, " when in fact the charge of
first-degree robbery only required a showing that one of them
"[d]isplay[ed] or threaten[ed] the use of what
appear[ed] to be a deadly weapon or dangerous
instrument." Section 569.020.1(4), RSMo. (2000). Second,
Movant argues that his trial counsel failed to advise him
regarding the law of accomplice liability and that he could
be convicted on the basis of his co-defendant's actions.
Both failures, he alleges, caused him to reject a plea offer
of 10 years.
motion court essentially found that Movant failed to allege
prejudice because he did not specifically allege that the
10-year plea offer was for all of the charges, rather than
just first-degree robbery. However, the motion as a whole
implies that the 10-year plea offer would have included all
charges. For example, in alleging prejudice, he states that
had he received competent advice, he "would have been
sentenced to ten (10) years of incarceration instead of
eighteen (18)." Giving Movant the benefit of the doubt
regarding his language, see Hatcher v. State. 4
S.W.3d 145, 148 (Mo. App. S.D. 1999), we find he sufficiently
alleged prejudice, and this allegation is not refuted by the
record. Any clarification needed regarding the specific offer
would come at an evidentiary hearing.
Movant alleged that he received inaccurate advice from his
attorney regarding the burden of proof the State had to carry
at trial, both regarding the elements of robbery in the first
degree and regarding accomplice liability. The record does
not refute Movant's claims that his attorney misadvised
him in these respects. In fact, during Movant's sentencing
hearing, when the trial court asked Movant about his
counsel's representation, he answered every question
negatively. Movant expressed that he felt his counsel did not
confer with him, was disloyal, did not answer all of his
questions, and that he had additional complaints but would
include them in his motion. While this by no means
establishes Movant's counsel was ineffective, and we are
cognizant of Movant's prior convictions and familiarity
with the legal system,  ...