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Miller v. State

Court of Appeals of Missouri, Eastern District, Fourth Division

February 7, 2017

JOSHUA S. MILLER, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of Ralls County 13RL-CV00322 Honorable Rachel B. Shepherd

          Gary M. Gaertner, Jr., Judge

         Introduction

         Joshua S. Miller (Movant) appeals the motion court's denial of his motion for postconviction relief under Rule 24.035[1]after 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.

         Background

         In 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.

         In 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.[2]

         At a 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.[3]

         Movant 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.

         The 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 follows.

         Standard of Review

         Our 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).

         Discussion

         Movant 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 ...


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