Court of Appeals of Missouri, Western District, Second Division
DAVID E. RICE, JR., Appellant,
STATE OF MISSOURI, Respondent.
FROM THE CIRCUIT COURT OF LAFAYETTE COUNTY, MISSOURI THE
HONORABLE DENNIS A. ROLF, JUDGE.
Before: Edward R. Ardini, Jr., Presiding Judge, Karen King
Mitchell, Judge and Anthony Rex Gabbert, Judge.
R. ARDINI, JR., JUDGE.
E. Rice, Jr., appeals the judgment of the Circuit Court of
Lafayette County denying his amended Rule
24.035 motion for post-conviction relief. On
appeal, Rice argues that three ineffective assistance of
counsel claims raised in his amended motion were not refuted
by the record and therefore he was entitled to an evidentiary
hearing on those claims. We find that Rice was entitled to an
evidentiary hearing on his claim that he was misinformed by
his counsel regarding the amount of his sentence that would
have to be served before being eligible for parole. The
judgment is reversed and remanded for an evidentiary hearing
on that claim.
BACKGROUND AND PROCEDURAL HISTORY
was charged as a prior and persistent offender with felony
resisting a lawful stop, felony driving with a revoked
license, and misdemeanor possession of a controlled
substance. Rice entered an open guilty plea on September 8,
2014. During the plea colloquy, Rice admitted that on or
about November 10, 2013, he resisted a lawful stop by fleeing
from an officer who he knew was attempting a lawful stop and
created a substantial risk of serious physical injury or
death to other persons by operating his motor vehicle off of
the road and through residential yards. He further admitted
that his driver's license was revoked and he possessed
marijuana at the time. Rice understood that the driving while
revoked charge was enhanced to a felony because he had three
prior convictions for driving while his license was revoked.
Rice also admitted to other prior felony convictions. Rice
affirmatively acknowledged his rights and that he was waiving
those rights in order to bring the matter to a conclusion and
was examined regarding the performance of his counsel. The
judge accepted his plea, finding that "[Rice]
voluntarily, intelligently[, ] and knowingly entered his
guilty plea and that his plea of guilty [was] not the result
of threats or promises apart from plea negotiations with the
October 6, 2014, the parties appeared for sentencing. Rice
was sentenced to seven years for resisting a lawful stop,
seven years for felony driving with a revoked license, and
six months for misdemeanor possession of a controlled
substance, all to run concurrent to each other and to
Rice's previously imposed sentences. Each sentence fell
within the applicable range of punishment. The court
determined that probable cause did not exist to find that
Rice had received ineffective assistance of counsel.
January 20, 2015, Rice filed a pro se 24.035 Motion
to Vacate, Set Aside, or Correct the Judgment and Sentence.
An amended motion was filed on June 11, 2015, alleging
ineffective assistance of counsel and that the sentencing
court lacked jurisdiction. On March 7, 2016, the State made
an oral motion to deny the amended motion without a hearing,
which was granted. On May 6, 2016, the motion court entered
findings of fact and conclusions of law denying all claims.
This appeal follows.
review of a trial court's decision on a Rule 24.035
motion is "limited to a determination of whether the
findings and conclusions of the trial court are clearly
erroneous[, ]" i.e., whether the reviewing
"court is left with the definite and firm impression
that a mistake has been made." Sabatucci v.
State, 420 S.W.3d 597, 602 (Mo. App. E.D. 2013) (quoting
Rule 24.035(k)); Roberts v. State, 276 S.W.3d 833,
835 (Mo. banc 2009)). The movant bears the burden of showing
"by a preponderance of the evidence that the motion
court clearly erred in its ruling." Sabatucci,
420 S.W.3d at 602 (quoting Roberts, 276 S.W.3d at
appeal, Rice alleges that the trial court erred in denying
his amended motion without an evidentiary hearing, arguing
that he pleaded factual allegations relating to three of his
ineffective assistance of counsel claims that were not
refuted by the record and would warrant relief if proven. A
movant who seeks relief under Rule 24.035 is entitled to an
evidentiary hearing if:
(1) he alleged facts, not conclusions, warranting relief; (2)
the facts alleged raise matters not refuted by the files and
record of his case; and (3) the matters complained of
resulted in prejudice to him.
Roberts, 276 S.W.3d at 835 (citation omitted).
"An evidentiary hearing may only be denied when the
record conclusively shows that the movant is not
entitled to relief." ...