Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF TANEY COUNTY Honorable Laura
Morgan Straub ("Movant") appeals the denial of his
amended Rule 24.035 motion ("the motion") seeking
post-conviction relief. 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.
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.
Sentencing Dispositions for Attempted Rape in the First
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.
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).
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").
and Procedural Background
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
2015, Movant and plea counsel appeared before the trial
court 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