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Brooke v. State

Court of Appeals of Missouri, Southern District, First Division

September 3, 2019

HARRY L. BROOKE, Movant-Appellant,
v.
STATE OF MISSOURI, Respondent-Respondent.

          APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY HONORABLE THOMAS E. MOUNTJOY.

          OPINION

          GARY W. LYNCH, P.J.

         Harry L. Brooke ("Movant") was charged with one count of the unlawful use of a weapon for knowingly discharging a firearm at an inhabitable structure, a class B felony that carries a mandatory fifteen-year term of imprisonment. See sections 558.011.1(2), 571.030.1(9), and 571.030.9(1).[1] The State offered to amend the charge against him to a class D felony and recommend a four-year term of imprisonment without any consideration of probation. Because it did not provide an opportunity for a grant of probation, Movant rejected this offer. Instead, he entered an "open" plea of guilty to the offense charged in order to provide himself an opportunity to seek probation. The trial court sentenced him to the mandatory fifteen-year term of imprisonment but denied his requested grant of probation.

         Thereafter, Movant timely sought post-conviction relief ("PCR"), see Rule 24.035, which the motion court denied following an evidentiary hearing. Movant appeals the motion court's judgment, raising a single point alleging that he received ineffective assistance of counsel. Finding no clear error in the motion court's judgment as claimed, we affirm.

         Factual and Procedural Background

         At Movant's plea hearing during his testimony and when directed by the plea court to "state the range of punishment," the prosecuting attorney responded stating,

Per the subsection that this count is filed under, this offense can carry a range of punishment of the minimum -- or the maximum term of years for a Class B felony, which is fifteen years in the Missouri Department of Corrections. While probation can be granted on that count, the probation backup sentence is required to be the maximum on the Class B felony, the fifteen years.

(Emphasis added). Nothing else was said about the range of punishment during the plea hearing.

         At his subsequent sentencing hearing, after an extensive recitation of several factors weighing in his favor, Movant requested that "the mandatory fifteen-year sentence be suspended and that he be given a chance at probation." (Emphasis added). The sentencing court, however, ultimately agreed with the State that the nature of Movant's offense weighed against granting probation. The sentencing court, noting it had no discretion as to the length of the imprisonment term to impose, sentenced Movant to serve the term mandated by statute-fifteen years.

         In his timely-filed amended PCR motion, Movant alleged, inter alia, that he received ineffective assistance of counsel because his counsel, Lindsey Phoenix, "failed to inform Movant of the statutory mandatory minimum sentence of fifteen years he would be sentenced to if he plead [sic] guilty and insisted she could get him on probation if he pled guilty to the original charge." He alleged that he was prejudiced because "had he known the offense carried a mandatory minimum sentence of fifteen years and that everyone convicted of that charge was sentenced to prison he would have pled guilty to the first offer presented by the [S]tate."

         Phoenix testified at Movant's evidentiary hearing on his PCR motion that during her representation of Movant she did not advise him that he faced a mandatory imprisonment term of fifteen years. She stated, "I thought, when I talked to him, that it was five to fifteen. That's what I told him every time I talked to him." Phoenix further testified that the State had made a plea offer in which it would amend the charge against Movant to a class D felony and recommend four years' imprisonment. It was her belief that

95 percent of [Movant's] decision to reject that was based on my advice to him. I thoroughly believed that he was worthy of probation. I thought the facts of the case were worthy of probation. I thought what he had done was worthier of probation. He -- I think he trusted me entirely, and I told him I really thought that that was what would happen.

         According to Phoenix, she did not realize that she was mistaken about the range of punishment Movant could receive until the sentencing court announced Movant's sentence. Phoenix went on to characterize her advice regarding Movant's possible range of punishment as "the biggest mistake that I've ever made in my career[.]"

         Movant was the only other witness to testify at the evidentiary hearing. His testimony was in line with the previously recited testimony provided by Phoenix. In addition, he testified that securing probation was important to him because he "really didn't want to go to prison." On cross-examination, Movant stated that he wanted to receive a fifteen-year sentence ...


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