Court of Appeals of Missouri, Southern District, First Division
JACK M. HENSON, Movant-Appellant,
STATE OF MISSOURI, Respondent-Respondent.
FROM THE CIRCUIT COURT OF PULASKI COUNTY Honorable Ronald D.
White, Special Judge
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). 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).
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.
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
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.
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.
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.
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.
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."