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Henson v. State

Court of Appeals of Missouri, Southern District, First Division

March 30, 2017

JACK M. HENSON, Movant-Appellant,
v.
STATE OF MISSOURI, Respondent-Respondent.

         APPEAL FROM THE CIRCUIT COURT OF PULASKI COUNTY Honorable Ronald D. White, Special Judge

         AFFIRMED.

         Jack Henson (Henson) filed his Rule 24.035 pro se motion (the pro se motion) in the Circuit Court of Pulaski County seeking post-conviction relief from his criminal convictions in Case No. 10PU-CR00306-01 (the 2010 Pulaski County case).[1] Henson's retained counsel filed an amended motion (the amended motion) presenting four claims of alleged ineffective assistance of plea counsel arising from Henson's guilty pleas in the 2010 Pulaski County case. The amended motion also included three claims of alleged ineffective assistance of plea counsel arising from Henson's guilty pleas in Case No. 13PH-CR00136-01 (the 2013 Phelps County case).

         The motion court dismissed as untimely all claims involving Henson's convictions in the 2010 Pulaski County case because the motion court determined that the pro se motion was not filed within 180 days of Henson's delivery to the Department of Corrections (DOC). The motion court also denied relief on all claims involving Henson's conviction in the 2013 Phelps County case because those sentences were not imposed in Pulaski County. Henson appealed and presents six points for review. Finding no merit in any of them, we affirm the motion court's order.

         Standard of Review

         Appellate review of an order denying a motion for post-conviction relief is limited to a determination of whether the court's findings of fact and conclusions of law are clearly erroneous. Rule 24.035(k); Soto v. State, 226 S.W.3d 164, 166 (Mo. banc 2007). The clearly erroneous standard is satisfied only if, after a review of the entire record, this Court is left with a definite and firm impression that a mistake was made. Soto, 226 S.W.3d at 166.

         Factual Background

         Before setting out the relevant facts, a brief review of the mechanics of criminal sentencing is helpful:

A sentencing court has the authority to suspend both the execution of a sentence as well as the imposition of a sentence. See sections 557.011.2(3) and 557.011.4(3), RSMo 2000. A suspended execution of sentence suspends the defendant's prison time and the defendant is put on probation and has a criminal conviction on his record even if he successfully completes his probation. Edwards v. State, 215 S.W.3d 292, 295 (Mo. App. 2007). A suspended imposition of sentence, however, defers the sentencing as well as the entry of a conviction on defendant's record. Id. When an offender on a suspended execution of sentence violates his probation, the court may "execute" the suspended sentence and send him to prison for the term specified at the original sentencing. Id. When an offender is on probation with a suspended imposition of sentence, the court may revoke his probation and impose any sentence within the limit set by law for the offense. Id. An offender on a suspended imposition of sentence who successfully completes probation does not have a criminal conviction on his record, whereas an offender with a suspended execution of sentence has a criminal record for that conviction regardless of whether he successfully completes probation. See Id.

Hoskins v. State, 329 S.W.3d 695, 698 n.3 (Mo. banc 2010) (emphasis in original). The relevant events relating to Henson's convictions and DOC deliveries are set out below in chronological order.

         October 26, 2010:

Henson entered guilty pleas to three charges in Case No. 10PU-CR00306-01, the 2010 Pulaski County case. The trial court suspended imposition of all sentences and ordered Henson to complete five years of probation.

         November 1, 2010:

Henson entered a guilty plea in 10PH-CR01131, a Phelps County case. The trial court suspended imposition of that sentence and ordered Henson to complete five years of probation.

         April 26, 2011:

The trial court found Henson had violated his probation in the 2010 Pulaski County case. The trial court entered sentences of 7 years, 7 years, and 15 years for the three charges in that case (with the 7-year sentences concurrent to each other, but consecutive to the 15-year sentence, for a total sentence of 22 years). The court suspended execution of all sentences and ordered Henson to complete drug court.

         September 14, 2011:

Henson entered guilty pleas in three new cases, with each case including charges for multiple felonies: 11PH-CR01149 - Sentences of 10 years and 7 years entered (concurrent to each other, but consecutive to all other sentences); 11PH-CR01532 - Two sentences of 10 years entered (concurrent to each other, but consecutive to all other sentences); 11PH-CR01533 - Three sentences of 10 years entered (concurrent to each other, but consecutive to all other sentences).
The trial court revoked Henson's probation in the 2010 Pulaski County case and 10PH-CR01131. In the 2010 Pulaski County case, the trial court executed the 22-year sentence, stating "[t]hat's to be served." The trial court also executed a 4-year sentence in 10PH-CR01131 and ordered that it run consecutive to Henson's 22-year sentence. The trial court clarified that it was sentencing Henson "under 217.362 of the revised statutes of Missouri, the long-term drug treatment program." It further stated: (1) Henson was not guaranteed probation; (2) he was going to DOC for 56 years (the aggregate of all consecutive sentences entered up to that point); but (3) he had a chance to be withdrawn from DOC after one or two years if he successfully completed the program. The court concluded, "You are to be delivered to [DOC] for a combined total of 56 years."

         September ...


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