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Perry v. State

Court of Appeals of Missouri, Eastern District, Third Division

August 20, 2019

ELON PERRY, Movant/Appellant,
v.
STATE OF MISSOURI, Respondent/Respondent.

          Appeal from the Circuit Court of St. Louis County Honorable John D. Warner, Jr.

          SHERRI B. SULLIVAN, J

         Introduction

         Elon Perry (Appellant) appeals from the motion court's judgment denying his Rule 24.035[1] 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.

         Facts and Background

         On June 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 offender.

         Before 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.

         After 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.

         The 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.

         The motion court denied Appellant's amended motion without an evidentiary hearing. This appeal follows.

         Points Relied On

         Appellant 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 plead guilty.

         Standard of Review

         This 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 ...


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