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Borneman v. State

Court of Appeals of Missouri, Southern District, Second Division

July 13, 2018

DAVID ANDREW BORNEMAN, Movant-Appellant,
v.
STATE OF MISSOURI, Respondent-Respondent.

          APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Judge Thomas E. Mountjoy

          MARY W. SHEFFIELD, JUDGE

         David Andrew Borneman ("Movant") appeals the motion court's denial of his amended Rule 24.035 motion for post-conviction relief following an evidentiary hearing.[1] Movant's two points claim the motion court clearly erred by denying: (1) Movant's claim that plea counsel was constitutionally ineffective for erroneously advising Movant "that if he entered an 'open plea' of guilty, he would be sentenced to probation for his charge of felony stealing"; and (2) an oral motion from post-conviction counsel to supplement the amended Rule 24.035 motion with an additional claim that Movant's sentence for felony stealing exceeded the maximum authorized by law.[2]Finding no merit in Movant's contentions, we affirm.

         Background

         In the underlying criminal case, the State charged Movant as a prior and persistent felony offender with the class C felony of stealing, based on the theft of property with a value of at least $500. Movant entered an "open plea," meaning that he had no plea agreement. The plea court questioned Movant, accepted the plea, found him guilty, sentenced him to an eight-year prison term as a prior and persistent felony offender, and denied probation.

         Movant filed an amended post-conviction motion wherein he claimed, among other things, that plea counsel had "erroneously assured Movant he would receive a new term of probation if he entered an 'open plea.'" After an evidentiary hearing, the motion court overruled Movant's amended motion. This appeal followed.

         Governing Law and Principles of Review

         A movant has the burden of proving his or her claims for relief by a preponderance of the evidence at an evidentiary hearing. Rule 24.035(i). To prevail on a claim of ineffective assistance of counsel, a post-conviction movant must overcome the strong presumption that counsel was competent and demonstrate instead that: (1) counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise; and (2) such failure prejudiced the movant. Hill v. State, 467 S.W.3d 818, 822 (Mo. App. S.D. 2015); Strickland v. Washington, 466 U.S. 668, 687-89 (1984). To show prejudice following his guilty plea, Movant had to show that a reasonable probability existed that, but for the errors of plea counsel, Movant would have refused to enter a guilty plea and insisted on proceeding to trial. Jones v. State, 211 S.W.3d 210, 213 (Mo. App. S.D. 2007). "When a movant pleads guilty, claims of ineffective assistance of counsel are relevant only to the extent they affect the voluntariness with which a plea was made." Id.

         Appellate review of the motion court's decision in a Rule 24.035 case is "limited to a determination of whether the findings and conclusions of the [motion] court are clearly erroneous." Rule 24.035(k). "Findings of fact and conclusions of law are clearly erroneous only if our review of the entire record leaves us with the definite and firm impression that a mistake has been made." Jones, 211 S.W.3d at 212. Credibility determinations are within the exclusive province of the motion court, Hill, 467 S.W.3d at 823, and the motion court may believe or disbelieve any portion of testimony. Oliphant v. State, 525 S.W.3d 572, 577 (Mo. App. S.D. 2017). This Court defers to credibility determinations made by the motion court. Id.

         Discussion

         Point 1

         Movant's first point on appeal charges clear error in the motion court's denial of his amended motion because plea counsel "erroneously advised him that if he entered an 'open plea' of guilty, he would be sentenced to probation for his charge of felony stealing." Movant argues that if he had known that probation was not guaranteed, he would not have pleaded guilty and would have instead proceeded to trial.

         At the guilty plea hearing, the plea court asked Movant, among other things, whether anyone had made any promises to him to entice him to plead guilty and whether anyone had pressured him to plead guilty. Movant responded in the negative. Movant also told the plea court that no one had suggested that he should answer questions from the court untruthfully. At the sentencing hearing, the State recommended a ten-year sentence and restitution. Plea counsel argued for another chance on probation, or alternatively, long-term drug treatment. After Movant received his eight-year sentence, Movant told the plea court that he was satisfied with plea counsel's services and had no complaints regarding plea counsel.

         At the evidentiary hearing on Movant's amended post-conviction motion, Movant and plea counsel provided the only testimony. Movant testified that: (1) plea counsel "assured" him that he would get probation if he accepted an open plea; (2) he had relied on that representation when deciding whether to plead guilty; and (3) if plea counsel had not so ...


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