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Jones v. State

Court of Appeals of Missouri, Eastern District, Fourth Division

April 18, 2017

KENNIS S. JONES, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of the City of St. Louis Honorable Philip D. Heagney

          KURT S. ODENWALD, Judge.

         Introduction

         Kermis S. Jones ("Jones") appeals from the denial of his Rule 24.035[1] motion after an evidentiary hearing. Jones pleaded guilty to one count of first-degree robbery. On appeal, Jones argues that his defense counsel was ineffective for advising Jones that he was eligible for the 120-day drug treatment program under Section 559.115[2] ("120-day program") when the Missouri Department of Corrections ("MDOC") was denying eligibility to defendants convicted of fust-degree robbery. Because defense counsel correctly advised Jones that he was eligible for the 120-day program, the motion court did not clearly err in denying Jones's claim of ineffective assistance of counsel. We affirm.

         Factual and Procedural History

         The State charged Jones with one count of first-degree robbery and one count of armed criminal action. After engaging in plea negotiations, the State dropped the count of armed criminal action. However, the parties remained unable to reach a plea agreement. Nonetheless, Jones decided to plead guilty.

         At the plea hearing, the State asserted that Jones entered a bank and handed the cashier a note demanding money. Although Jones told the cashier that he had a gun, he did not brandish the weapon. After receiving $2, 000 from the cashier, Jones fled the bank. Jones admitted at the plea hearing that the facts were "basically true." The plea court then informed Jones that by entering an open plea the court retained discretion to choose an appropriate sentence within the full sentencing range. The plea court told Jones that the sentencing range for first-degree robbery was the possibility of probation or from ten to thirty years in prison. Jones acknowledged that he understood, and the plea court accepted Jones's open guilty plea.

         Prior to sentencing, Jones's defense counsel requested a Sentencing Assessment Report from the Missouri Department of Probation and Parole ("SAR"). Jones's SAR indicated that he was eligible for the 120-day program under Section 559.115 and set a bed date for him.

         At his sentencing hearing, Jones asked for a sentence of fifteen years in prison, to be served only if he failed to complete the 120-day program. Further, Jones asked to be released on probation if he successfully completed the 120-day program. Conversely, the State recommended a sentence of fifteen years in prison without eligibility for the 120-day program. The plea court sentenced Jones to twelve years in prison and did not refer Jones to the 120-day program. In explaining its decision to Jones, the plea court stated "[i]n theory, the 120-day program was an option. And in theory, time in the penitentiary was an option up to and including life imprisonment."

         Jones filed a Rule 24.035 motion alleging ineffective assistance of counsel. In his motion, Jones claimed that his defense counsel was ineffective for advising him to enter into an open guilty plea in the hope of being sentenced to the 120-day program for which he was not eligible. Jones's argument was premised upon MDOC's interpretation of Section 559.115, the statute governing eligibility to the 120-day program. From May 17, 2013, when MDOC issued a memorandum to this effect, until October 6, 2015, MDOC mistakenly interpreted Section 559.115[3] as denying eligibility to those convicted of "dangerous felonies, " such as first-degree robbery. On October 6, 2015, the Western District of the Missouri Court of Appeals rejected MDOC's interpretation of Section 559.115, holding instead that defendants convicted of "dangerous felonies" were eligible for the 120-day program. Masters v. Lombardi, 472 S.W.3d 214, 219 (Mo. App. W.D. 2015). Because Jones pleaded guilty four months before Masters was decided, Jones argued that he had entered an open guilty plea in the hope of receiving an unattainable sentence.

         The motion court held an evidentiary hearing. Jones's defense counsel testified that he was not aware of MDOC's policy of denying eligibility to felons convicted of first-degree robbery when he advised Jones to seek referral to the 120-day program. Defense counsel further testified that, even had he known of MDOC's policy denying eligibility to dangerous felons, he nevertheless would have advised Jones to seek referral to the 120-day program because he knew Jones was eligible by law. Defense counsel based his belief on his experience representing defendants who had been convicted of dangerous felonies and had been accepted into the 120-day program. Finally, defense counsel explained that he did not guarantee Jones a particular sentence if he pleaded guilty.

         Jones also testified that he was not aware of MDOC's interpretation of Section 559.115 when he pleaded guilty. Jones testified that not only was he not advised by defense counsel of the MDOC interpretation, but defense counsel guaranteed him that he would receive the 120-day program as part of his sentence if he entered an open guilty plea. Jones stated that he would not have pleaded guilty had he been aware of MDOC's policy at the time, but would have proceeded to trial.

         After the hearing, the motion court denied Jones's claim for ineffective assistance of counsel. The motion court found that defense counsel's testimony that he had not guaranteed Jones a particular sentence if he pleaded guilty was "credible" and that Jones's testimony to the contrary was "inconsistent and not credible." The motion court denied Jones's motion on the grounds that he had not been guaranteed a particular sentence; instead, Jones had pleaded guilty knowing that he could receive any sentence within the sentencing range. The motion court also concluded that the plea court at sentencing was not affected by MDOC's misinterpretation of Section 559.115. Jones appeals.

         Point ...


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