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Rice v. State

Court of Appeals of Missouri, Western District, Second Division

July 25, 2017

DAVID E. RICE, JR., Appellant,
v.
STATE OF MISSOURI, Respondent.

         APPEAL 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.

          EDWARD R. ARDINI, JR., JUDGE.

         David E. Rice, Jr., appeals the judgment of the Circuit Court of Lafayette County denying his amended Rule 24.035[1] 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.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Rice 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 He further admitted that his driver's license was revoked and he possessed marijuana at the time.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while revoked charge was enhanced to a felony because he had three prior convictions for driving while his license was revoked.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 State."

         On 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.[2] The court determined that probable cause did not exist to find that Rice had received ineffective assistance of counsel.

         On 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.

         STANDARD OF REVIEW

         Our 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 835).

         DISCUSSION

         On 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." ...


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