Court of Appeals of Missouri, Eastern District, Fourth Division
JOSHUA S. MILLER, Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of Ralls County 13RL-CV00322 Honorable
Rachel B. Shepherd
M. Gaertner, Jr., Judge
S. Miller (Movant) appeals the motion court's denial of
his motion for postconviction relief under Rule
24.035after an evidentiary hearing. Movant argues
that the motion court erred in failing to conduct an
independent inquiry into whether Movant was abandoned, and
that the motion court erred in failing to find his counsel
was ineffective for failing to advise him that his guilty
pleas to multiple counts of unlawful possession of a firearm
violated his protection from double jeopardy. We affirm.
2011, prior to the charges that are the subject of this
appeal, the State charged Movant with 28 counts of forgery.
Pursuant to a plea agreement, Movant pled guilty to three
counts of forgery, and the State dismissed the remaining
counts. The plea court accepted Movant's pleas and
sentenced Movant to three consecutive five-year sentences,
suspended execution of those sentences, and placed Movant on
probation, all in accordance with the plea agreement.
2013, during Movant's probationary period, the State
charged Movant in three different cases as a prior and
persistent offender with the following crimes: two counts of
second-degree burglary, eight counts of stealing a firearm,
six counts of stealing, eight counts of unlawful possession
of a firearm, and eight counts of receiving stolen property.
Due to double jeopardy concerns, the State amended some
counts and dismissed several others. Movant ultimately
entered blind pleas of guilty to one count of second-degree
burglary and one count of stealing for entering a church
unlawfully and appropriating a credit card and a safe valued
between $500 and $25, 000; two counts of stealing for
appropriating several power tools from a residence on
December 7, 2012; and one count of second-degree burglary,
one count of stealing a firearm, and eight counts of unlawful
possession of a firearm, for entering a residence on December
10, 2012, and appropriating eight firearms, one of which was
a pellet gun.
later sentencing hearing, the plea court revoked Movant's
probation on his prior forgery convictions and ordered
execution of his three consecutive five-year sentences. The
plea court then sentenced Movant to an additional two
consecutive five-year sentences for the two counts resulting
from the church burglary and two consecutive five-year
sentences resulting from the theft of power tools, all
consecutive with each other, for a total of 35 years.
Finally, the plea court sentenced Movant to concurrent
five-year sentences for each of the 10 remaining counts
associated with the theft of firearms, to be served
concurrently with the other sentences, leaving a total
sentence of 35 years.
filed a pro se motion under Rule 24.035 raising
several claims of ineffective assistance of plea counsel.
Appointed counsel later filed an amended motion, arguing as
relevant for this appeal that Movant's plea counsel was
ineffective for failing to advise Movant that the eight
counts of unlawful possession of a firearm violated his right
to be free from double jeopardy. Movant also asserted in his
amended motion that there was an insufficient factual basis
for Movant's guilty plea to the count of unlawful
possession of a weapon involving a pellet gun.
motion court held an evidentiary hearing regarding the claims
in Movant's amended motion. At this hearing, Movant's
post-conviction counsel informed the motion court that he
filed the motion out of time because his attempted timely
filing was unsuccessful due to the unavailability of
electronic filing or facsimile filing in Ralls County. The
motion court granted Movant leave to file his amended motion
out of time. After the hearing, the motion court vacated
Movant's conviction for unlawful possession of a firearm
involving a pellet gun, but the court denied Movant's
motion in all other respects, finding that double jeopardy
concerns were not implicated given the statutory language for
the offense of unlawful possession of a firearm. This appeal
review of the denial of a motion for post-conviction relief
under Rule 24.035 is "limited to a determination of
whether the findings and conclusions of the [motion] court
are clearly erroneous." Rule 24.035(k). Findings and
conclusions are clearly erroneous only when, upon review of
the record, we are "left with a definite and firm
impression that a mistake has been made." Mackley v.
State. 331 S.W.3d 733, 734 (Mo. App. E.D. 2011). Movant
bears the burden of proving the claims in his motion by a
preponderance of the evidence. Rule 24.035(i).
raises two points on appeal. First, he argues that the motion
court erred in ruling on his motion without conducting an
independent inquiry into whether he was abandoned by counsel
due to the untimely filing of his amended motion. Second,
Movant argues that the motion court clearly erred in
concluding that his plea counsel was not ineffective for
failing to advise him that the eight separate ...