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Huston v. State

Court of Appeals of Missouri, Western District, Second Division

September 5, 2017

DAWN R. HUSTON, Appellant,
v.
STATE OF MISSOURI, Respondent.

         APPEAL FROM THE CIRCUIT COURT OF SALINE 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

         Dawn R. Huston appeals the judgment of the Circuit Court of Saline County denying her Rule 24.035 motion without an evidentiary hearing after she pleaded guilty to one count of distributing marijuana within 2, 000 feet of a school (Count I) and two counts of distributing more than five grams of marijuana (Counts II and III).

         Huston's first two points on appeal are directed at Count I and contend that (1) her guilty plea was entered in violation of Rule 24.02(e) because no factual basis was established that, at the time of the commission of the offense, she knew that she was within 2, 000 feet of a school and (2) her plea counsel was ineffective for failing to investigate whether the location of the marijuana sale was within 2, 000 feet of a school. Because there was not a sufficient factual basis for Huston's guilty plea as to Count I, we grant Point I, reverse the motion court's judgment denying post- conviction relief as to that count, vacate the conviction, and remand for a trial or further plea proceedings.

         Huston's third and fourth points on appeal argue that (1) the plea judge improperly participated in plea negotiations and (2) her plea counsel was ineffective for failing to move for the recusal of the plea judge. The record establishes that Huston was not entitled to relief on these claims, and Points III and IV are denied.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Huston was charged with distributing marijuana within 2, 000 feet of a school and two counts of distributing more than five grams of marijuana. Huston entered open guilty pleas to all counts. The plea court conducted a standard colloquy regarding the rights that Huston would be waiving by pleading guilty, addressed that she was a prior and persistent drug offender, and received Huston's agreement that she was guilty of each of the three charges after reciting the facts of each offense as set forth in the charging document. The plea court accepted her guilty pleas on all three counts, ordered the preparation of a Sentencing Assessment Report (SAR), and set the date for her sentencing.

         Before the conclusion of the plea hearing, the prosecutor sought to make a record that a previously extended plea offer had been communicated by defense counsel to Huston. That plea offer was discussed, and Huston confirmed that she was aware of the offer and had rejected it. The plea court provided Huston an opportunity to confer with her counsel regarding the previously rejected offer. Huston declined, and the hearing was concluded. Huston was later sentenced to fifteen years on each count, to be served concurrently. Huston filed a pro se Rule 24.035 motion for post-conviction relief, which was amended by appointed counsel. The motion court denied Huston's motion without an evidentiary hearing, and she now appeals.[1]

         II. STANDARD OF REVIEW

         Review of the denial of a Rule 24.035 motion "is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous[, ]" i.e., this "court is left with the definite and firm impression that a mistake has been made." Cooper v. State, 356 S.W.3d 148, 152 (Mo. banc 2011). Huston, as the movant, "has the burden to show by a preponderance of the evidence that the motion court clearly erred in its ruling." Id. We will affirm the motion court's judgment if it reached the right result, even if for the wrong reason. Curry v. State, 438 S.W.3d 523, 524 (Mo. App. E.D. 2014) (citation omitted).

         To be "entitled to an evidentiary hearing on [her] Rule 24.035 motion, " Huston must establish "that (1) [s]he alleged facts, not conclusions, warranting relief; (2) the facts alleged raise matters not refuted by the files and record of [her] case; and (3) the matters complained of resulted in prejudice to [her]." Cooper, 356 S.W.3d at 152 (citation omitted). An evidentiary hearing will "be denied when the record conclusively shows that the movant is not entitled to relief." Id. (citation omitted).

         III. DISCUSSION

         A. Knowledge-of-Proximity Element

         In her first point on appeal, Huston argues that her guilty plea to Count I lacked a factual basis establishing that she knew at the time of the marijuana sale that she was within 2, 000 feet of a school. We agree.

          A "court shall not enter a judgment upon a plea of guilty unless it determines that there is a factual basis for the plea[, ]" which "is necessary to ensure that the guilty plea was intelligently and voluntarily entered[.]" Rule 24.02(e); Wray v. State, 474 S.W.3d 230, 235 (Mo. App. W.D. 2015) (citation omitted). "For a plea to be knowing and voluntary, the defendant must be informed of the elements of the offense either at the plea hearing or on some prior occasion, and [s]he must understand them." Wray, 474 S.W.3d at 235 (citation omitted).

         Huston pleaded guilty to distribution of a controlled substance within 2, 000 feet of a school. Section 195.214.1[2] specifically states that "[a] person commits the offense of distribution of a controlled substance near schools if such person violates section 195.211[3] by unlawfully distributing or delivering any controlled substance to a person . . . within two thousand feet of[] the real property comprising a public or private . . . school[.]" A conviction under this section requires proof that the defendant knew at the time of the distribution that she was within 2, 000 feet of a school. See Johnson v. State, 407 S.W.3d 63, 70 (Mo. App. W.D. 2013).

         The motion court found that a sufficient factual basis was made at the plea hearing based on Huston's acknowledgment that she knowingly sold marijuana within 2, 000 feet of an elementary school. The record from the plea hearing reveals that the totality of the factual basis was established from the plea court reading the offense as stated in the charging document and Huston agreeing that she was guilty of the charge:

COURT: . . . [Y]ou are in fact guilty of the Class A felony of distribution of a controlled substance near schools . . . ?
HUSTON: Yes, Sir.
COURT: And you're guilty . . . ma'am, because on or about November 2nd, 2011, in the County of Saline, State of Missouri, you knowingly sold marijuana, a controlled substance, to Missouri State Highway Patrol Corporal JG Hoover at 163 S. Grant Avenue in the city of Marshall, which is within 2[, ]000 feet of the real property comprising Benton School, an elementary school.
HUSTON: Yes, Sir.

         Although the factual allegations set forth in the charging document appear "simple, specific[, ] and sufficient to inform the defendant in terms that a layman would understand what acts [she] was charged with committing" as the State argues, see Wray, 474 S.W.3d at 235 (citation omitted), we nevertheless cannot discern from the plea colloquy whether Huston fully understood the nature of the charge, including the requirement that she knew at the time of the drug sale that she was within 2, 000 feet of a school, and believed that her conduct actually fell within the charge. See Frantz v. State, 451 S.W.3d 697, 702 (Mo. App. W.D. 2014) ("The purpose of the factual basis inquiry is to protect a defendant who is in the position of pleading[] voluntarily with an understanding of the nature of the charge but without realizing that his conduct does not actually fall within the charge." (citation and internal quotation marks omitted)). ...


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