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Bergner v. State

Court of Appeals of Missouri, Eastern District, Third Division

February 26, 2019

JACOB A. BERGNER, Appellant,
v.
STATE OF MISSOURI, Respondent.

          Appeal from the Circuit Court of St. Francois County 17SF-CC00186 Honorable Wendy W. Horn

          OPINION

          James M. Dowd, Judge.

         Jacob Bergner appeals the denial without an evidentiary hearing of his Rule 24.035[1] motion for post-conviction relief based on a single allegation of ineffective assistance of counsel. He contends that the motion court clearly erred by failing to find that counsel was ineffective because he claims counsel misrepresented to him that he would not have to serve his sentences if his probation were revoked. We find no clear error because Bergner failed to plead facts, not conclusions, warranting relief, and failed to raise allegations that resulted in prejudice. Thus, no evidentiary hearing was required.

         Factual and Procedural Background

         Bergner was charged in the Circuit Court of St. Francois County with ten counts of forgery, and on May 20, 2016, he pleaded guilty to two of the counts pursuant to a plea agreement. In exchange for Bergner's guilty pleas, the State dismissed the other eight counts and recommended that Bergner be given two suspended sentences of seven years to run consecutively for a total of 14 years but that he be placed on supervised probation for five years. Forgery was classified then as a C felony, and the maximum allowable sentence for a class C felony under § 558.011.1(3)[2]was seven years' imprisonment.

         The plea court accepted the State's sentencing recommendations and placed Bergner on five years of supervised probation.

         On December 23, 2016, Bergner appeared before the court to face allegations that he had violated his probation. The court declined to revoke Bergner's probation. However, the court imposed against Bergner a court-ordered detention sanction (CODS) under § 559.036.4. The court stated at the hearing, "Since this is a CODS commitment it is unnecessary to review with [Bergner] his PCR rights."

         Within a few weeks, Bergner was delivered to the custody of the department of corrections (DOC) for his commitment to the CODS program. After he failed to successfully complete the program, the court revoked his probation on June 23, 2017 and ordered the previously-imposed pair of seven-year sentences executed. The court then advised Bergner of his right under Rule 24.035 to file a motion for post-conviction relief.

         On September 25, 2017, Bergner filed his pro se Rule 24.035 motion. And on February 15, 2018, counsel filed an amended motion on Bergner's behalf. Bergner's amended motion claimed that counsel was ineffective because, allegedly, counsel misrepresented to Bergner that he would not have to serve his sentences if his probation were revoked.

         On March 23, 2018, the motion court denied Bergner's amended motion without an evidentiary hearing. This appeal follows.

         Standard of Review

         We review the denial of a Rule 24.035 motion for post-conviction relief only to determine whether the motion court's findings and conclusions are clearly erroneous. Rule 24.035(k); Dorsey v. State, 448 S.W.3d 276, 282 (Mo.banc 2014). Findings and conclusions are clearly erroneous only if, after reviewing the entire record, we are left with the definite and firm impression that a mistake has been made. Swallow v. State, 398 S.W.3d 1, 3 (Mo.banc 2013). We presume that the motion court's findings are correct. Chaney v. State, 323 S.W.3d 836, 841 (Mo.App.E.D.2010).

         Moreover, an evidentiary hearing is not warranted for every Rule 24.035 motion. Rule 24.035(h); see Whitehead v. State, 481 S.W.3d 116, 122 (Mo.App.E.D. 2016). To be entitled to an evidentiary hearing, the movant's motion must (1) allege facts, not conclusions, warranting relief; (2) raise factual matters that are not refuted by the file and record; and (3) raise allegations that resulted in prejudice. Id. Courts will not draw factual inferences or implications in a postconviction motion from bare conclusions or from a ...


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