Court of Appeals of Missouri, Western District, Second Division
DAWN R. HUSTON, Appellant,
STATE OF MISSOURI, Respondent.
FROM THE CIRCUIT COURT OF SALINE COUNTY, MISSOURI THE
HONORABLE DENNIS A. ROLF, JUDGE
Edward R. Ardini, Jr., Presiding Judge, Karen King Mitchell,
Judge and Anthony Rex Gabbert, Judge
R. ARDINI, JR., JUDGE
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).
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.
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.
FACTUAL AND PROCEDURAL BACKGROUND
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.
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
STANDARD OF 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).
"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.
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.
"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
pleaded guilty to distribution of a controlled substance
within 2, 000 feet of a school. Section
195.214.1 specifically states that "[a] person
commits the offense of distribution of a controlled substance
near schools if such person violates section
195.211 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.
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
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.
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)). ...