Court of Appeals of Missouri, Eastern District, Fourth Division
from the Circuit Court of St. Louis County 15SL-CC01094
Honorable Michael D. Burton
M. Gaertner, Jr., Judge
Rivers (Movant) appeals the motion court's judgment
denying, without an evidentiary hearing, his motion under
Rule 24.035 to vacate, set aside, or correct the
judgment and sentence (Rule 24.035 Motion) after his plea of
guilty. We affirm.
November 7, 2014, Movant entered a blind plea of guilty to
second-degree murder, first-degree robbery, and two counts of
armed criminal action. The factual basis underlying
Movant's plea was as follows.
prosecuting attorney recited the State's evidence,
stating it would show that Movant acted with others to commit
the charged crimes on November 5, 2012. Specifically, the
State recounted that a person using Movant's cell phone
made a call to Imo's Pizza and ordered three pizzas for
delivery to an address two blocks away from Movant's
residence. A driver named Brian Johnson (Victim) delivered
the pizzas to the address. Victim was shot and killed at that
address, and the pizzas were stolen.
Victim's employer discovered he was missing, the employer
called the police, who found Victim in his car. The police
obtained the phone number used to place the order and
discovered Movant's address was the billing address for
the cell phone. Police went to Movant's residence, and
the person who answered the door let them in. They found
Movant sleeping in the basement, and an Imo's pizza box
was nearby. They asked for consent to search the premises for
additional evidence and eventually obtained consent from the
owner of the house. The police found an additional two
Imo's pizza boxes, as well as a gun under the mattress
where Movant had been sleeping. They later tested the gun for
fingerprints and found Movant's fingerprints. Movant also
consented to a search of his phone, and they found a call
placed to Imo's in the list of outgoing calls on the
phone. Police also later matched the bullet recovered from
Victim to the gun seized from Movant's residence.
eventually admitted to police that he was involved in the
robbery and had placed the call to Imo's to order the
pizzas, but Movant insisted he did not shoot Victim. Movant
told police he stood back from the robbery as a lookout.
Movant said he heard a gunshot, and then all of the people
involved retreated to Movant's residence, where they ate
the pizza. Movant said he never intended for anyone to get
hurt. The State concluded by saying that Movant
"didn't really have an explanation how the gun came
back into his possession[, b]ut he did admit that he knew
that a gun was going to be used in this robbery."
plea court accepted Movant's guilty plea and ordered a
sentencing assessment report (SAR). The plea court held a
sentencing hearing on January 15, 2015, after which it
sentenced Movant to concurrent terms of 25 years'
imprisonment on each charge.
timely filed a pro se motion under Rule 24.035, and
later his amended Rule 24.035 Motion through counsel. His
motion alleged that his plea counsel was ineffective for
advising Movant that he would receive a sentence of 18 to 20
years, but no more than 20 years, if he pled guilty and left
sentencing up to the plea court. He argues that his reliance
on his plea counsel's advice was reasonable, and that
such reliance rendered his plea involuntary. The motion court
denied Movant's motion without an evidentiary hearing,
finding Movant's claims were conclusively refitted by the
record. This appeal follows.
review of the denial of a Rule 24.035 motion is "limited
to a determination of whether the findings and conclusions of
the trial court are clearly erroneous." Rule 24.03500:
see also Weeks v. State. 140 S.W.3d 39, 44 (Mo. banc
2004). A motion court is not required to grant an evidentiary
hearing unless: (1) the movant pleads facts that if true
would warrant relief; (2) the facts alleged are not refuted
by the record; and (3) the matter complained of resulted in
prejudice to the movant. Dorsey v. State, 115 S.W.3d
842, 844-45 (Mo. banc 2003).
there is a plea of guilty, a claim of ineffective assistance
of counsel is immaterial "except to the extent that the
conduct affected the voluntariness and knowledge with which
the plea was made." Worthington v. State, 166
S.W.3d 566, 573 (Mo. banc 2005). If an examination of the
guilty plea proceedings directly refutes a movant's claim
that his plea was involuntary, then the movant ...