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State v. Evans

Court of Appeals of Missouri, Eastern District, Fifth Division

July 18, 2017

STATE OF MISSOURI, Respondent,
v.
JOHN R. EVANS, JR., Appellant.

         Appeal from the Circuit Court of Ste. Genevieve County Honorable Wendy W. Horn

          Philip M. Hess, Presiding Judge.

         Introduction

         John Evans ("Movant") appeals the motion court's denial, without an evidentiary hearing, of his Rule 24.035[1] amended motion for post-conviction relief. In his sole point relied on, Movant argues the motion court erred in denying his Rule 24.035 motion without an evidentiary hearing because he alleged facts, unrefuted by the record, that his plea counsel was ineffective for failing to meet with him prior to the day before his guilty plea and failing to investigate his case. We affirm.

         Factual Background

         On January 15, 2015, Movant stole a 2005 Jeep Liberty. The following day, the Prosecuting Attorney of the County of Ste. Genevieve obtained a warrant for Movant's arrest. Movant was arrested and taken into custody. On March 5, 2015, after waiving his preliminary hearing, Movant was charged by substitute information in lieu of indictment with the class C felony of stealing a motor vehicle, in violation of Section 570.030. [2]

         On March 16, 2015, Movant met with his attorney ("Plea Counsel") in the Ste. Genevieve County jail to discuss his case. Movant told Plea Counsel he wanted to plead guilty. Although Plea Counsel urged Movant to wait before pleading guilty, Plea Counsel set Movant's case for arraignment on March 17, 2015. Plea Counsel also filed a motion for discovery on March 17, 2015.

         Before Plea Counsel viewed discovery, Movant pleaded guilty as charged on March 17, 2015, pursuant to a plea agreement with the State. The court explained to Movant he was charged with a class C felony of stealing a motor vehicle as a prior and persistent offender and that he was subject to an enhanced range of punishment. Movant told the court he had not been mistreated, forced, coerced, or pressured to plead guilty, and that it was his decision alone to plead guilty. The court explained to Movant the rights he would be waiving by pleading guilty, and Movant stated he understood those rights and agreed he was voluntarily waiving them.

         The court explained the factual basis for the charge. The court further stated Movant had five prior felony convictions, including one conviction for first-degree property damage, one conviction for second-degree burglary, and three convictions for first-degree tampering with a motor vehicle. Movant told the court he understood his charge, Movant admitted he had stolen the motor vehicle, and Movant admitted to having five prior convictions. Movant was informed the range of punishment was up to 15 years of imprisonment on the class C felony of stealing a motor vehicle charge. Movant waived his formal sentencing assessment report, and was sentenced to 12 years of imprisonment, to run concurrently with sentences he received from Perry County. [3]

         After sentencing, Movant agreed he had all the time he needed to talk with Plea Counsel. He further agreed Plea Counsel did everything he wanted him to do, and did not refuse to do anything he wanted him to do. Movant told the court he was fully satisfied with the services of Plea Counsel. The plea court found no evidence of ineffective counsel.

         Movant filed his pro se Rule 24.035 motion for post-conviction relief on August 13, 2015, alleging ineffective assistance of counsel. Appointed counsel filed Movant's Rule 24.035 amended motion on February 3, 2016, pursuant to a 30-day extension, alleging ineffective assistance of counsel for failure to meet with him prior to March 16, 2015, and failure to discover, prior to his guilty plea, that: (1) Movant was deprived of Lithium, his prescribed mania and paranoia medication, and (2) Movant was homeless at the time of the charged offense. Movant's amended motion included a request for an evidentiary hearing.

         The motion court entered findings of fact and conclusions of law denying Movant's Rule 24.035 motion without an evidentiary hearing. The motion court found Movant's claim was "clearly refuted by the record" in that a waiver of preliminary hearing was executed by Movant and his Plea Counsel on March 3, 2015, indicating that Plea Counsel met with Movant prior to March 16, 2015. The motion court also found Movant's allegations that Plea Counsel failed to investigate his case refuted by the record because Movant acknowledged in his written plea agreement he took medications, namely Visterel, Paxil, and Nerotin, and that his mind was clear, and that Movant's public defender application, included in the record, disclosed his address as 537 Gray Street in Perryville, Missouri. The motion court further acknowledged that Movant told the court at sentencing that he had all the time he needed to speak with his Plea Counsel. This appeal follows.

         Standard of Review

         A motion court's findings are presumptively correct. Jones v. State, 516 S.W.3d 447, 450 (Mo. App. E.D. 2017). Therefore, appellate review of post-conviction motions is limited to determining whether the motion court's findings of fact and conclusions of law are "clearly erroneous." Rule 24.035(k); Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009). Findings and conclusions are deemed clearly erroneous only if, after review of the record, the appellate court is ...


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