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McCoy v. State

Court of Appeals of Missouri, Western District, First Division

July 16, 2019

JERRY McCOY, Appellant,
v.
STATE OF MISSOURI, Respondent.

          Appeal from the Circuit Court of Jackson County, Missouri The Honorable Jack R. Grate, Judge

          Before Cynthia L. Martin, Presiding Judge, Victor C. Howard, Judge and Alok Ahuja, Judge

          CYNTHIA L. MARTIN, JUDGE

         Jerry McCoy ("McCoy") appeals the denial of his Rule 24.035 motion following an evidentiary hearing. McCoy contends the motion court erred because: (1) his guilty plea was not knowing and voluntary because the plea court relied on an improperly entered misdemeanor guilty plea to enhance the range of punishment of his protection order violation; (2) his guilty plea sentence was in excess of the maximum authorized by law; (3) he received ineffective assistance of counsel when plea counsel did not move to set aside misdemeanor convictions because the convictions were improperly entered; (4) he received ineffective assistance when counsel did not object to the plea court's finding of guilt; and (5) he received ineffective assistance when counsel did not object to the plea court's imposition of sentence. The judgment of the motion court is affirmed.

         Factual and Procedural Background

         In January 2015, McCoy pleaded guilty to three counts of class A misdemeanor violation of an order of protection ("2015 guilty pleas") in relation to case number 1416-CR02598-01.[1]

         In September 2015, the State charged McCoy in case number 1516-CR02418-01 with three counts of class D felony violation of an order of a protection. These charges were classified as a felony because of McCoy's earlier convictions in case number 1416-CR02598-01. In exchange for McCoy's guilty plea in case number 1516-CR02418-01 to one count of class D felony violation of an order of protection, the State agreed to dismiss the other two counts ("2016 violation" and "2016 guilty plea").[2] The plea court sentenced McCoy to four years imprisonment. The plea court suspended execution of sentence and placed McCoy on probation. McCoy violated probation and the sentence was executed. McCoy did not appeal the 2016 guilty plea conviction. McCoy filed a timely pro se motion for post-conviction relief pursuant to Rule 24.035.[3] Post-conviction relief counsel filed a timely amended motion ("Amended Motion") and an evidentiary hearing was held. The motion court denied McCoy's motion for post-conviction relief.

         McCoy timely appeals.

         Analysis

         McCoy raises five points on appeal. McCoy's first point argues that the motion court clearly erred in overruling his Amended Motion because his 2016 guilty plea was not knowingly and voluntarily entered because the 2016 violation was elevated from a misdemeanor to a felony based on McCoy's 2015 guilty pleas, which McCoy alleges were improperly entered. Because McCoy asserts the 2015 guilty pleas were improperly entered, McCoy's second point argues that the four-year sentence imposed for his 2016 guilty plea exceeded the maximum sentence authorized by law. McCoy's third, fourth, and fifth points all assert on different bases that McCoy received ineffective assistance of counsel due to plea counsel's failure to challenge the 2016 violation on the basis that his 2015 guilty pleas were allegedly improperly entered. Because the success of each of McCoy's points on appeal depends on our acceptance of his central premise that the 2015 guilty pleas were improperly entered, we first address that issue.[4]

         The 2015 guilty pleas

         McCoy asserts that the 2016 violation was erroneously enhanced from a misdemeanor to a felony because his 2015 guilty pleas were improperly entered.

         In case number 1516-CR02418-01, McCoy was charged with class D felony violation of an order of protection under section 455.085, [5] which provides that:

8. A violation of the terms and conditions . . . of a full order of protection shall be a class A misdemeanor, unless the [order] respondent has previously pleaded guilty to . . . violating an ex parte order of protection or a full order of protection within five years of the date of the subsequent ...

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