Court of Appeals of Missouri, Western District, Third Division
SHAWN K. HOUGARDY, Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of Lafayette County, Missouri The
Honorable Dennis A. Rolf, Judge
Anthony Rex Gabbert, Presiding Judge, Victor C. Howard, Judge
and Cynthia L. Martin, Judge
CYNTHIA L. MARTIN, JUDGE
Hougardy ("Hougardy") appeals from the denial of
his Rule 29.15 motion following an evidentiary hearing.
Hougardy argues that the motion court clearly erred by
denying his claim that trial counsel was ineffective by
misinforming Hougardy that a prior conviction disqualified
him for long-term substance abuse treatment. Hougardy argues
that as a result of this misinformation, he was prejudiced
because a plea offer that Hougardy had accepted was not
presented to the court, and Hougardy received a more severe
sentence after trial and conviction. Because the motion court
did not conduct an independent inquiry into whether Hougardy
was abandoned by post-conviction counsel, we reverse and
remand for further proceedings consistent with this Opinion.
and Procedural Background
was convicted after a jury trial of attempted manufacture of
methamphetamine, resisting a lawful stop, and tampering with
physical evidence. Hougardy was sentenced as a prior and
persistent felony offender and a prior drug
offenderto twenty years' imprisonment for
attempted manufacturing, seven years' imprisonment for
resisting, and seven years' imprisonment for tampering.
The seven-year sentences were ordered to run concurrently
with each other but consecutively to the twenty-year
sentence. Hougardy's convictions were affirmed on direct
appeal. State v. Hougardy, 396 S.W.3d 443 (Mo. App.
W.D. 2013). We need not recount the circumstances giving rise
to Hougardy's convictions, as the only issue raised by
Hougardy on appeal is the extent to which trial counsel's
alleged ineffective assistance prejudiced Hougardy with
respect to sentencing.
timely filed a pro se Rule 29.15 motion on May 14,
2013. The pro se motion raised eleven claims of
ineffective assistance of trial counsel, and one claim of
ineffective assistance of appellate counsel. Post-conviction
counsel entered an appearance on June 10, 2013, and was
granted a thirty-day extension of time to file an amended
motion. An amended motion was not filed, however, until
September 29, 2014.
amended motion did not incorporate or attach the pro
se claims, and asserted instead three new claims of
ineffective assistance of trial counsel that were distinct
from the claims raised in the pro se motion.
Specifically, the amended motion alleged that trial counsel
ineffectively misinformed Hougardy that he was not eligible
for long-term substance abuse treatment pursuant to section
217.362,  causing Hougardy to reject a plea offer
for a fifteen-year sentence and long-term substance abuse
treatment. The amended motion also alleged two claims
of ineffective assistance based on trial counsel's
failure to investigate and call Carmen Triplett and Tommy
Triplett as witnesses at trial.
an evidentiary hearing, the motion court entered judgment on
May 6, 2016 ("Judgment") denying the claims raised
in the amended motion. The Judgment included a finding that
the amended motion "was timely filed."
timely filed this appeal, challenging only the motion
court's finding that trial counsel was not ineffective by
misinforming Hougardy about his eligibility for long-term
substance abuse treatment.
motion court's ruling on a post-conviction motion is
presumed correct. McLaughlin v. State, 378 S.W.3d
328, 336-37 (Mo. banc 2012). The motion court's judgment
will be overturned only when its findings of fact or
conclusions of law are clearly erroneous. Id. at
337; Rule 29.15(k). To be clearly erroneous, we must be left
with a "definite and firm impression that a mistake has
been made." Id. (quoting Zink v.
State, 278 S.W.3d 170, 175 (Mo. banc 2009)).
raises a single point on appeal. He challenges the motion
court's conclusion that trial counsel was not ineffective
by misinforming him that he was ineligible for long-term
substance abuse treatment pursuant to section 217.362.
Hougardy contends that he was prejudiced because he had
accepted a plea offer that included long-term substance abuse
treatment, and the accepted offer was never presented to the
trial court because of trial counsel's
misinformation. "Preliminarily, and regardless of any
claims made by [Hougardy] on appeal . . . we are compelled to
sua sponte examine the record to determine whether
appointed counsel complied with the requirements of Rule
[29.15(e)], which delineates the mandatory ...