Court of Appeals of Missouri, Eastern District, Third Division
JACOB A. BERGNER, Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of St. Francois County 17SF-CC00186
Honorable Wendy W. Horn
M. Dowd, Judge.
Bergner appeals the denial without an evidentiary hearing of
his Rule 24.035 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
and Procedural Background
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)was seven years'
plea court accepted the State's sentencing
recommendations and placed Bergner on five years of
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."
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.
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
March 23, 2018, the motion court denied Bergner's amended
motion without an evidentiary hearing. This appeal follows.
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).
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 ...