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Hougardy v. State

Court of Appeals of Missouri, Western District, Third Division

June 27, 2017

SHAWN K. HOUGARDY, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of Lafayette County, Missouri The Honorable Dennis A. Rolf, Judge

          Before Anthony Rex Gabbert, Presiding Judge, Victor C. Howard, Judge and Cynthia L. Martin, Judge

          CYNTHIA L. MARTIN, JUDGE

         Shawn 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.

         Factual and Procedural Background

         Hougardy 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 offender[1]to 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.

         Hougardy 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.

         The 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, [2] causing Hougardy to reject a plea offer for a fifteen-year sentence and long-term substance abuse treatment.[3] 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.

         After 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."

         Hougardy 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.

         Standard of Review

         A 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).[4] 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)).

         Analysis

         Hougardy 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.[5] "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 ...


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