Court of Appeals of Missouri, Eastern District, Fourth Division
KENNIS S. JONES, Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of the City of St. Louis Honorable
Philip D. Heagney
S. ODENWALD, Judge.
S. Jones ("Jones") appeals from the denial of his
Rule 24.035 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 ("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
and Procedural History
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
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.
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.
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."
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 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
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.
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.
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.