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Welch v. State

Court of Appeals of Missouri, Eastern District, Second Division

June 26, 2018

KEITH WELCH, Appellant,
v.
STATE OF MISSOURI, Respondent.

          Appeal from the Circuit Court of the City of St. Louis Honorable Edward W. Sweeney, Jr.

          PHILIP M. HESS, JUDGE

         Introduction

         Keith L. Welch appeals the denial of his Rule 24.035[1] motion for post-conviction relief without an evidentiary hearing. Welch's sole point on appeal is his plea counsel was ineffective for leading him to believe he could receive 120-days' shock incarceration or treatment under § 559.115[2] or a minimum of five years' imprisonment when neither was a possibility under Missouri law given the nature of his convictions. The motion court denied the motion without an evidentiary hearing, finding Welch's claims were refuted by the record. Specifically, the motion court found Welch's claims "without merit because movant understood the sentences he was to receive were up to the Court, he understood at the time of his guilty pleas that the range of punishment was ten to thirty years or life, the statement regarding the possibility of five years did not occur until sentencing, long after the pleas were accepted, and movant made no complaint to the Court after being sentenced that he had been misled by counsel." While the motion court made specific findings about Welch's claim that plea counsel told him he would be eligible for a minimum five-year sentence, the motion court made no specific findings addressing Welch's claim that plea counsel was ineffective for advising him he could be sentenced to a 120-day shock or treatment program. Because the motion court failed to issue findings of facts and conclusions of law on that issue, we reverse and remand for the motion court to enter findings of fact and conclusions of law on that issue. We affirm the motion court's judgment with regard to Welch's claim that plea counsel was ineffective for telling him he would be eligible for a minimum five-year sentence.

         Factual and Procedural Background

         In 2013, a City of St. Louis grand jury charged Welch with one count of first-degree statutory rape and one count of first-degree statutory sodomy arising out of Welch having sexual intercourse with a child less than twelve years old on or about August 23, 2013. Welch entered a guilty plea to both charges and was sentenced to concurrent terms of twenty-five years' imprisonment on each count.

         At his plea hearing, the State informed the court the range of punishment was ten years to life imprisonment. The State advised the court there were no restrictions on probation or parole but both offenses carried lifetime supervision requirements. The court asked if probation was a possibility and the State said yes. Welch indicated he understood the minimum sentence he could get was ten years, and his maximum sentence could be thirty years to life imprisonment on each count. The court then asked the State if it was possible for Welch to get a suspended execution of sentence, and the State responded it was.

         The court told Welch it was possible he could get probation, and if he received probation and successfully completed it, he would not have to go to prison. The court asked Welch if he had any questions about the range of punishment, and he said no. The court asked Welch if he had any questions about anything relating to the possible sentences, and he said no. The court asked Welch if he understood that by pleading guilty without a plea agreement, he was leaving it up to the court to decide what his sentence would be, and Welch said yes. The court told Welch if anyone told him they knew what sentence he would get from the court, they would be wrong, and Welch said he understood. Welch indicated no one had made any promises to him about what his sentence would be, or any other kind of promise he relied on in making his decision to plead guilty. Welch acknowledged he understood that if he entered his plea and the court accepted it, he could not take it back later if he did not like the sentence he received. Welch confirmed he went over the range of punishment with his attorney and understood what the range of punishment was for the charges. He indicated his attorney did everything he wanted him to do.

         At the sentencing hearing, the court went over portions of the sentencing assessment report on the record. The court noted the report reflected that "just under six percent get probation" "for this offense," "[a]nd the only other alternative besides probation, shock or treatment, is apparently not a permitted sentence because, I believe, under the law if the Defendant does get a sentence, it has to be served 85 percent of it before the Defendant is eligible for parole, and is not eligible for probation." The court asked plea counsel if he believed anything in the report was a mistake, and the only issue plea counsel raised was the investigator's impression of Welch's remorse for committing the crimes. Plea counsel indicated he discussed the report with Welch, and Welch was given an opportunity to address the court. Welch indicated he reviewed the report with his attorney and the only issue he had was the investigator's impression of him. Plea counsel took no other issues with the report and requested the court give Welch the minimum sentence, which he indicated he thought was five years. The State and the court both corrected plea counsel and told him it was ten. Plea counsel agreed and said he misspoke.

         Plea counsel also requested the court consider probation. The court told Welch it could not consider the minimum sentence or probation in this case. The court sentenced Welch to two concurrent terms of twenty-five years' imprisonment. The court then inquired with Welch about the representation he received from his counsel. Welch told the court he was comfortable with counsel remaining in the room while he answered the questions. Welch testified he had no complaints about his counsel, that there was nothing he thought his attorney had done or should have done that he did not do, and when asked about his belief on the effectiveness of counsel, he said, "I think he did his job. He came in for me and did what he's supposed to do, I thank him."

         Welch did not file a direct appeal. Welch timely filed his pro se motion for post-conviction relief. Counsel entered an appearance on Welch's behalf and timely filed an amended motion. In his amended motion, Welch alleged "plea counsel was ineffective for advising Movant. . . that Movant potentially could be sentenced to a 120-day shock or treatment program in the Missouri Department of Corrections ('MDOC'), or a minimum sentence of five years in MDOC." Welch asserted that "[a]lthough plea counsel did not promise that result, plea counsel advised Movant that he had a good possibility of receiving either placement in a 120-day shock or treatment program, or a minimum sentence of five years in MDOC, when, in fact, neither was a possibility."

         Welch alleged that if granted an evidentiary hearing, he would "testify that plea counsel told Movant that he would ask for the court to give Movant 120-days shock incarceration in the Missouri Department of Corrections," "that plea counsel advised Movant that he believed Movant had a good chance at getting sentenced to a 120-day program," and "that he pleaded guilty with the hope that he would be sentenced to a 120-day program, and that he was never told that such an outcome was not only unlikely, but also not possible under Missouri law." Welch alleged he would "testify that, but for plea counsel's erroneous advice regarding potential sentencing outcomes, he would not have pleaded guilty, but would have proceeded to trial."

         The motion court found Welch's claim "without merit because movant understood the sentences he was to receive were up to the Court, he understood at the time of his guilty pleas that the range of punishment was ten to thirty years or life, the statement regarding the possibility of five years did not occur until sentencing, long after the pleas were accepted, and movant made no complaint to the Court after being sentenced that he had been misled by counsel." The motion court made no specific findings addressing Welch's claim that plea counsel was ineffective for advising him he could potentially could be sentenced to a 120-day shock or treatment program. The court did generally find that Welch's claims were refuted by the record and that Welch had failed to plead facts not refuted by the record, which, if true, would entitle Welch to relief. This appeal follows.

         Standard ...


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