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Hernandez v. State

Court of Appeals of Missouri, Eastern District, Third Division

July 16, 2019

JAMIE HERNANDEZ, Appellant,
v.
STATE OF MISSOURI, Respondent.

          Appeal from the Circuit Court of St. Louis County 12SL-CC01360 Honorable Joseph S. Dueker

          OPINION

          ROBIN RANSOM, J.

         Jamie Hernandez ("Movant") appeals from the motion court's judgment denying his motion under Rule 24.035[1] for post-conviction relief. Movant claims that the motion court erred in denying his request for post-conviction relief after an evidentiary hearing because plea counsel was ineffective for affirmatively misinforming him of the deportation consequences of his guilty plea; and erred in denying his request for post-conviction relief without an evidentiary hearing because the record did not conclusively refute that Movant was denied due process at his probation revocation proceeding. We affirm.

         Discussion

         The State charged Movant in 2004 with two counts of possession of a controlled substance with intent to distribute, in Cause Number 2104R-04713. In March 2007, Movant pleaded guilty to both charges. The court suspended imposition of sentence ("SIS"), except for 120 days of shock incarceration, and placed Movant on probation for five years. A copy of his court records was sent to the Department of Homeland Security in October 2009. While the record is not clear, it appears that sometime between October 2009 and February 2010, Movant was taken into the custody of Immigration and Naturalization Services ("INS") and deported to Mexico stemming from his 2007 drug conviction. Then, in March 2010, he was indicted by a grand jury in the United States District Court for the District of Kansas of having been found in the United States without permission on or about February 10, 2010, after having previously been deported following a conviction for an aggravated felony. Movant, while represented by counsel, agreed to plead guilty to the charge, pursuant to a plea agreement that he signed on December 6, 2010. His probation in Cause Number 2104R-04713 was suspended on September 12, 2011, and a warrant for probation violation was issued and served.

         At the revocation hearing on January 26, 2012, Movant testified he understood he was entitled to a hearing on the probation violation charge but wished to waive the hearing and to admit he violated his probation. The court asked if he admitted he "violated condition number 1 by being convicted in the state of Texas while [he] was on probation for this offense." Movant replied, "[y]es." The court found, based on Movant's admissions, that he had violated the terms of his probation and that his probation should be revoked. The court then sentenced him to concurrent terms of five years in the Missouri Department of Corrections on Counts I and II in Cause Number 2104R-04713, with credit given for the two years he served in INS custody.

         Movant timely filed a pro se motion for post-conviction relief under Rule 24.035. Through appointed counsel, he filed a timely amended motion to vacate, set aside, or correct judgment and sentence and a request for an evidentiary hearing ("amended motion"). As relevant to the issues raised on appeal, Movant argued his 2007 guilty plea was not knowing and voluntary in that his plea counsel was ineffective for affirmatively misadvising Movant of the deportation consequences of his guilty plea; and he was denied due process at his 2012 probation revocation proceeding because he had not received notice of the evidence against him supporting his probation violations, he was forced by his counsel to waive the probation revocation hearing, and there was no evidence that Movant had a conviction from the State of Texas.

         The motion court granted an evidentiary hearing on the issue of whether plea counsel affirmatively misadvised Movant on the immigration consequences of his plea, but denied Movant's request for an evidentiary hearing on the issue of whether he was denied due process at his probation revocation hearing. Both Movant and Movant's plea counsel, Stephen Zarky ("Zarky"), testified via deposition. The motion court denied Movant's request for relief under Rule 24.035, finding, as relevant to the issues raised on appeal: (1) Movant failed to show his plea counsel provided ineffective assistance by affirmatively misinforming him of the immigration consequences of his guilty plea, but rather, Movant's guilty plea was knowing and voluntary; and (2) Movant failed to allege facts not refuted by the record that he was denied due process at his probation revocation hearing. This appeal follows.

         Standard of Review

         Our review of the denial of a Rule 24.035 motion is "limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous." Rule 24.035(k); Milner v. State, 551 S.W.3d 476, 479 (Mo. banc 2018). This Court will find error only if, after review of the entire record, we have a definite and firm belief that a mistake has been made. Milner, 551 S.W.3d at 479. On review, the motion court's findings and conclusions are presumptively correct. Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991). After a guilty plea, our review is limited to a determination as to whether the underlying plea was knowing and voluntary. Wilson v. State, 568 S.W.3d 924, 928 (Mo. App. E.D. 2019).

         To be entitled to an evidentiary hearing, Movant's motion for post-conviction relief must meet three requirements: (1) it must contain facts, not conclusions, which if true would warrant relief; (2) the alleged facts must not be refuted by the record; and (3) the matters complained of must have resulted in prejudice to movant. Durant v. State, 559 S.W.3d 74, 77 (Mo. App. E.D. 2018); see also Rule 24.035(h).

         Discussion

         Point I

         In his first point on appeal, Movant argues the motion court clearly erred in denying his amended motion after an evidentiary hearing because his plea counsel was ineffective for affirmatively misinforming or failing to accurately advise him about the deportation consequences of his guilty plea, and but for this ineffective ...


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