Court of Appeals of Missouri, Southern District, First Division
HARRY L. BROOKE, Movant-Appellant,
STATE OF MISSOURI, Respondent-Respondent.
FROM THE CIRCUIT COURT OF GREENE COUNTY HONORABLE THOMAS E.
W. LYNCH, P.J.
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). 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
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.
and Procedural Background
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.
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.
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."
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.
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[.]"
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 ...