Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of St. Louis County Honorable John D.
B. SULLIVAN, J
Perry (Appellant) appeals from the motion court's
judgment denying his Rule 24.035 Amended Motion to Vacate,
Set Aside, or Correct Judgment and Sentence (amended motion)
and request for an evidentiary hearing. We affirm in part and
reverse in part.
12, 2017, Appellant pleaded guilty to burglary in the first
degree, a class B felony; violation of an order of
protection, a class A misdemeanor; and harassment, a class A
misdemeanor. In exchange for his plea, the State agreed to
dismiss a charge of rape in the second degree and a charge of
sodomy in the second degree. The State also agreed not to
seek enhanced sentencing for Appellant as a persistent
accepting Appellant's plea, the trial court questioned
Appellant about the voluntariness of his plea. Appellant
stated he had no health or hearing problems and was not under
the influence of drugs or alcohol. Appellant claimed he had
enough time to speak with his plea counsel before deciding to
plead guilty, no promises other than the plea agreement were
made, plea counsel had done all Appellant had asked him to
do, and he was satisfied with plea counsel's performance.
Appellant admitted to the factual basis of the plea: he
committed burglary, harassment, and violation of an order of
protection when he entered and remained unlawfully in the
victim's (Victim) bedroom in the middle of the night for
the purpose of scaring her. The trial court accepted
Appellant's plea and sentenced him to twelve years'
imprisonment for first-degree burglary, one year for
violation of the order of protection, and one year for
harassment, with all sentences to run concurrently.
he was delivered to the Missouri Department of Corrections,
Appellant timely filed a pro se motion for post-conviction
relief. The motion court appointed counsel for Appellant and
counsel timely filed Appellant's amended motion.
amended motion included two claims. In the first claim,
Appellant asserted plea counsel was ineffective because he
represented Appellant without revealing a conflict of
interest. According to Appellant, after pleading guilty he
learned plea counsel sat on the Ferguson City Council, and
was friends with a police officer who investigated
Appellant's case. The second claim alleged plea counsel
was ineffective based on his failure to obtain records and
reports of Victim's alleged elder abuse and fraud -
misdeeds for which Appellant had reported Victim, giving her
a motive to falsely accuse Appellant of the instant crimes.
motion court denied Appellant's amended motion without an
evidentiary hearing. This appeal follows.
brings two points on appeal. Point I claims the trial court
erred in denying his amended motion because the motion
alleged facts not refuted by the record showing his plea
counsel had an undisclosed conflict of interest while
representing Appellant. Point II claims error because his
amended motion alleged facts showing plea counsel was
ineffective for failing to obtain documentation of
Victim's alleged wrongdoing before advising Appellant to
Court's review of the motion court's ruling on a
motion filed under Rule 24.035 is "limited to a
determination of whether the findings and conclusions of law
… are clearly erroneous." Rule 24.035(k). The
trial court's ruling is clearly erroneous when this Court
is left with a "definite and firm impression that a