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Straub v. State

Court of Appeals of Missouri, Southern District, First Division

July 11, 2017

JAMES MORGAN STRAUB, Movant-Appellant,
STATE OF MISSOURI, Respondent-Respondent.

         APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY Honorable Laura Johnson Judge

          DON E. BURRELL, J.

         James Morgan Straub ("Movant") appeals the denial of his amended Rule 24.035 motion ("the motion") seeking post-conviction relief.[1] Movant's point claims the motion court erred in finding that Movant's plea counsel was not ineffective in affirmatively misrepresenting to Movant "that he was eligible for probation and the Sex Offender Assessment Unit [("the SOAU)]" as a disposition for his conviction of "'attempted forcible rape[.]'" See section 566.030.[2]

         Although the motion court found that plea counsel had given Movant "mistaken advice, " the motion court found that it was unreasonable "for Movant to believe that he would receive probation at the time he entered his guilty plea." This ruling was not responsive to Movant's claim that, based upon plea counsel's advice, Movant had a mistaken but reasonable belief that he was eligible for probation and placement in the SOAU. We therefore reverse the ruling and remand the matter to the motion court to rule on Movant's claim after making additional findings addressing: (1) whether plea counsel's "mistaken advice" concerned Movant's eligibility for probation and placement in the SOAU; and, if so, (2) whether Movant reasonably relied on that mistaken advice at the time he entered his guilty plea.

         Authorized Sentencing Dispositions for Attempted Rape in the First Degree

         "Probation is not a sentence nor could the conditions of probation be a sentence." McCulley v. State, 486 S.W.2d 419, 423 (Mo. 1972). The disposition of a felony under the criminal code authorizes probation as an option in two instances-when there has been a suspension of the imposition of a sentence or when a sentence has been pronounced, but its execution has been suspended. Section 557.011.2(3) and (4). See also Hoskins v. State, 329 S.W.3d 695, 698 n.3 (Mo. banc 2010). Section 566.030.2 provides the same punishment for "[t]he offense of rape in the first degree or an attempt to commit rape in the first degree" as, at a minimum, "life imprisonment or a term of years not less than five years[.]" In addition, "[n]o person found guilty of rape in the first degree or an attempt to commit rape in the first degree shall be granted a suspended imposition of sentence or suspended execution of sentence." Section 566.030.4.

         Section 559.115 does not provide an alternative route to probation for Movant's offense. Section 559.115.2 permits a circuit court to grant probation on its own motion up to one hundred twenty days after a defendant is delivered to DOC. See Masters v. Lombardi, 472 S.W.3d 214, 216 (Mo. App. W.D. 2015). Additionally, section 559.115.3 specifically authorizes release from DOC on probation in certain circumstances following completion of a particular type of program. See id. And "the SOAU is a 'program' for purposes of section 559.115.3[.]" State ex rel. Valentine v. Orr, 366 S.W.3d 534, 541 (Mo. banc 2012). But section 559.115.8 imposes a limitation on both of these provisions. "Notwithstanding any other provision of law, probation may not be granted pursuant to [section 559.115] to offenders who have been convicted of . . . any offense in which there exists a statutory prohibition against either probation or parole." Section 559.115.8. Thus, probation is not an authorized disposition for the offense to which Movant pleaded guilty under either section 566.030 or 559.115.

Applicable Principles of Review
This Court's review of a denial of post-conviction relief is limited to a determination of clear error in the circuit court's findings of fact and conclusions of law. Taylor v. State, 382 S.W.3d 78, 80 (Mo. banc 2012). A judgment is clearly erroneous when, in light of the entire record, the court is left with the definite and firm impression that a mistake has been made. Id. Even if the stated reason for a circuit court's ruling is incorrect, the judgment should be affirmed if the judgment is sustainable on other grounds.

Swallow v. State, 398 S.W.3d 1, 3 (Mo. banc 2013).

         "This standard of review, however, presupposes that the motion court carried out its obligation to 'issue findings of fact and conclusions of law on all issues presented, whether or not a hearing is held.'" Johnson v. State, 210 S.W.3d 427, 431 (Mo. App. S.D. 2006) (quoting Rule 24.035(j)). "Generally, the failure to make findings as to all issues requires remand for supplementation of the record." Haskett v. State, 152 S.W.3d 906, 909, 911 (Mo. App. W.D. 2005) (remanding for "additional findings and rulings" even though "the failure of the motion court to make findings . . . ha[d] not been raised by the parties").

         Evidentiary and Procedural Background[3]

         In November 2014, Movant was charged by felony information with "attempted forcible rape" for actions that occurred in September of that year. After the paragraph describing the offense, a second paragraph stated: "The range of punishment for this unclassified felony is a term of imprisonment not less than five (5) years and up to life, and if found guilty defendant is not eligible for probation."

         In May 2015, Movant and plea counsel appeared before the trial court[4] to enter a guilty plea. A "PETITION TO ENTER PLEA OF GUILTY" was admitted into evidence at that hearing, and it included the following acknowledgment signed by Movant: "I have received a copy of the information (charge against me). I have read the information and have discussed it with my lawyer. I fully understand every charge made against me." A written plea agreement, signed by Movant, was also admitted into evidence, and it stated "SENTENCE: cap of 25 years in [DOC]; [Movant] may argue for any sentence or result[.]" The plea agreement also provided that the State would oppose probation, but if it were granted, the conditions of that probation would include specific requirements. Plea counsel informed the trial court that "at sentencing the State will not ask for any more than 25 years in [DOC]. [Movant] is free to ask for any sentence, including probation." Plea counsel also advised that two additional charges included in the ...

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