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Whitley v. State

Court of Appeals of Missouri, Eastern District, Fourth Division

October 18, 2016

VERNELL WHITLEY, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of the City of St. Louis 1422-CC09888 Honorable Julian L. Bush

          GAR M. GAERTNER, JR., JUDGE.

         Introduction

         Vernell Whitley (Movant) appeals from the motion court's judgment denying his Rule 24.035[1] motion after an evidentiary hearing. Movant claims that the motion court erred in denying his request for post-conviction relief, because plea counsel was ineffective for failing to advise him that by pleading guilty he would waive his right to appeal the trial court's ruling on his alleged speedy-trial violation. We affirm.

         Factual and Procedural Background

         The State charged Movant with two counts of first-degree robbery and two counts of armed criminal action (ACA), stemming from a February 2012 incident in which Movant forcibly stole the cell phones of two people and in doing so displayed what appeared to be a deadly weapon. At the time of his arrest on February 8, 2012, Movant was on probation for a 2011 conviction for possession of a controlled substance. On August 23, 2012, the trial court revoked Movant's probation and sentenced him to five years in the Missouri Department of Corrections.

         On August 22, 2012, Movant filed a pro se speedy-trial motion on the robbery and ACA charges; he filed a second speedy-trial motion in January of 2013; and in September of 2013, he filed a motion to dismiss for a violation of his right to a speedy trial. His case was not scheduled for trial until January 21, 2014. The parties appeared for trial on January 21, 2014, whereupon the trial court heard arguments on Movant's motion to dismiss for a violation of his right to a speedy trial. The trial court determined that, while the overall delay of nearly two years between his arrest and his trial was "appalling" and indicated a "systemic failure, " 11.5 months of the 23.5-month delay was attributable to Movant's requests for continuances.[2] The court overruled Movant's motion to dismiss the indictment, finding that the 12-month delay attributable to the State was not egregious and not deliberate, and that the delay did not prejudice Movant.[3]

         Trial began and after voir dire> Movant announced that he wished to withdraw his plea of not guilty and to enter a plea of guilty not pursuant to the State's recommendation of 15 years. The State stated that had the case gone to trial, it would have proven Movant approached John Jones and Gregory Jones with a gun, whereupon Movant and his associates took a cell phone and U.S. currency from John Jones, and a cell phone from Gregory Jones. Movant denied these facts, agreeing he was there but stating a robbery did not occur. Nevertheless, he stated that although a crime had not occurred, he wished to plead guilty. The trial court inquired if he wished to plead guilty pursuant to Alford.[4]

         The court took a break for Movant's counsel to explain an Alford plea to Movant, after which Movant again reiterated that he did not want to go to trial but wanted to plead guilty. He agreed the State had sufficient evidence to prove its case because it would be his word versus the two witnesses' testimony, but he did not admit he committed the crimes as charged. The court listed the rights Movant would waive by pleading guilty, including the right to appeal his guilty verdict, and accepted Movant's guilty plea. The court sentenced Movant to concurrent sentences of 15 years in the Department of Corrections on each of the four counts.

         Movant timely filed his pro se motion for post-conviction relief pursuant to Rule 24.035. Through appointed counsel, he argued his plea counsel was ineffective for failing to advise him that by pleading guilty he was waiving his right to challenge the trial court's ruling on his motion to dismiss for a speedy-trial violation. Had Movant known that by pleading guilty he was waiving this right, he would not have pled guilty. He requested an evidentiary hearing, which the motion court granted.

         At the evidentiary hearing, Movant's plea counsel, Matthew Waltz (Waltz), testified that although he did not specifically tell Movant that by pleading guilty he would waive his right to appeal the court's speedy-trial ruling, the trial court specifically told Movant he would be giving up his right to appeal and Waltz had discussed with Movant in a "general sense" that he would not be able to file an appeal. Waltz stated that had the case gone to trial and resulted in a guilty verdict, he would have included the speedy-trial argument in his motion for a new trial. Moreover, Waltz testified that Movant initiated the decision to change his plea to guilty because he wanted to gamble on a sentence less than the State's recommendation of 15 years. Movant also testified, saying that while Waltz and the plea court had discussed that by pleading guilty Movant would waive his right to appeal, he believed that the waiver only applied to the guilty verdict and not the speedy-trial issue. He stated he pled guilty because he was hoping for a sentence of less than 15 years.

         At the close of the evidentiary hearing, the motion court denied Movant's Rule 24.035 motion. The motion court stated that it "disbelieved" Movant's testimony that he would not have pled guilty if he had known he would have been unable to appeal the speedy-trial issue, and thus Movant's plea was not involuntary and he was not prejudiced. This appeal follows.

         Discussion

         On appeal, Movant claims the motion court clearly erred in denying his Rule 24.035 motion after an evidentiary hearing, because Waltz was ineffective for failing to advise Movant that by pleading guilty he was ...


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