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Austin v. State

Court of Appeals of Missouri, Eastern District, Fourth Division

September 26, 2017

DANIEL PAUL AUSTIN, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of the City of St. Louis Cause No. 1422-CC00354-01 Honorable Elizabeth B. Hogan

          OPINION

          Colleen Dolan, P.J

         Daniel P. Austin ("Movant") appeals the motion court's denial of his Rule 24.035 motion for post-conviction relief without an evidentiary hearing.[1] Movant asserts two points on appeal. In Point I, Movant argues the motion court erred in denying his Rule 24.035 motion without an evidentiary hearing because the State failed to establish a factual basis for one count of kidnapping as required by Rule 24.02(e). In Point II, Movant argues that the motion court erred in denying his Rule 24.035 motion because his plea counsel was ineffective by failing to inform him that he would be ineligible for parole if he pleaded guilty to the charge of victim tampering. Movant further claims this made his guilty plea involuntary, unknowing, and unintelligent because he was unaware that he would be required to serve his entire seven-year sentence without the possibility of parole and asserts he would have insisted on taking the case to trial had he known this.

         We affirm the judgment of the motion court.

         I. Facts and Procedural Background

         On August 30, 2013, Movant, pursuant to a plea agreement, pleaded guilty to three charges arising from Movant's unlawful removal of the victim from the address where Movant found her on April 26, 2011, with the purpose of terrorizing her. Movant subsequently attempted to communicate with the victim after an order of protection had been placed against him. Movant pleaded guilty to the class B felony of kidnapping under § 565.110 in cause no. 1122-CR02176-01 and the class C felony of victim tampering under § 575.270.[2] Movant also pleaded guilty to the class A misdemeanor of violating an order of protection under § 455.085 in cause no. 1222-CR03511.

         At the plea hearing, Movant acknowledged that he had heard the terms of the plea agreement and stated that he wanted to plead guilty to kidnapping. During questioning by the court to ensure that Movant's plea was knowing, intelligent, and voluntary, Movant told the court that he wanted to plead guilty to committing kidnapping on April 26, 2011, when he removed the victim from where he found her. Additionally, the court observed that there had already been a jury trial on this charge that ended in a mistrial and asked the prosecutor to outline the evidence of kidnapping. The prosecutor stated that Movant "forcefully placed [the victim] in a car which he then drove away from the area in which he was located" and that Movant "did so without [the victim's] consent and by the means of forcible compulsion." Movant admitted to those facts.

         Movant also pleaded guilty to victim tampering and to violating an order of protection, admitting that he sent the victim "numerous letters encouraging her not to assist in the prosecution of [the kidnapping] and other matters." Further, Movant stated that he knew the victim had obtained an order of protection against him that prohibited him from initiating contact with her. Despite knowing this, Movant sent a letter to the victim's stepfather "asking him to pass on a message to the victim in violation of that order of protection." The court further questioned Movant to ensure that his guilty pleas were knowing, intelligent, and voluntary. Movant received a seven-year sentence that was to run concurrently with the other sentences in case no. 1222-CR03511, but consecutively with a sentence he was currently serving from a prior case.[3]

         Movant timely filed apro se post-conviction motion pursuant to Rule 24.035 on February 7, 2014. A notice indicating that the transcript of the guilty plea and sentencing hearing was complete was filed on March 4, 2014, but the record was unclear as to whether the transcript was actually filed. Additionally, Movant's appointed post-conviction counsel entered his appearance on May 23, 2014, but the record also lacked any reference as to when Movant's counsel was appointed. Movant's counsel filed an amended motion for post-conviction relief on November 12, 2014. The motion court entered its findings of fact, conclusions of law, and order denying Movant's motion without an evidentiary hearing on December 1, 2014.

         Movant appealed the motion court's decision to this Court in Austin v. State, 484 S.W.3d 830 (Mo. App. E.D. 2016). This Court determined that, because the record was unclear as to whether the complete transcript was filed and when Movant's post-conviction counsel was appointed, remand was necessary for the motion court to determine whether the amended motion was timely filed and whether Movant was abandoned by his post-conviction counsel. Id. at 833.

         On remand, the motion court determined that the transcript of the guilty plea and sentencing hearing was never actually filed. Additionally, the motion court determined that Movant's post-conviction counsel was never appointed, but entered an appearance. Pursuant to Rule 24.035(g), the time to file an amended motion begins to run from the date both (1) a complete transcript has been filed in the trial court and (2) counsel is appointed or an entry of appearance is filed by any counsel that is not appointed but enters an appearance on behalf of the movant. Because the transcript was never filed, and time never actually began to run, the motion court concluded that the amended Rule 24.035 motion was timely filed. Further, the motion court found that Movant had not been abandoned by his post-conviction counsel, while also ruling that it was appropriate to rule on the claims in the amended motion because any undue delay could not be attributed to Movant. Upon finding the amended motion was timely filed, the motion court, once again, denied Movant's Rule 24.035 motion because Movant failed to allege facts which were not refuted by the record that entitled him to relief.

         This appeal follows.

         II. Standard of Review

         When reviewing a motion court's denial of a Rule 24.035 motion for post-conviction relief, an appellate court is limited to determining whether the court's findings and conclusions are clearly erroneous. Rueger v. State, 498 S.W.3d 538, 542 (Mo. App. E.D. 2016); Rule 24.035(k). This Court presumes those findings and conclusions correct and "will only overturn the decision of the motion court, after review of the entire record, when we are left with a 'definite and firm impression that a mistake has been made.'" Id. at 542-43 (quoting Vaca v.State,314 S.W.3d 331, 334 (Mo. banc 2010)). The burden is on the ...


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