Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF JASPER COUNTY Honorable Gayle L.
Crane, Circuit Judge
J., Burrell, J, and Francis, J.
ON MOTION TO RECALL MANDATE
asked to consider a motion to recall mandate filed on behalf
of Cebron Cordell Finley ("Movant"). On September
26, 2011, Movant was sentenced to 30 years' imprisonment
for domestic assault in the first degree (see
section 565.072, RSMo Cum. Supp. 2008) and a concurrent,
10-year sentence for armed criminal action (see
section 571.015, RSMo 2000). We affirmed Movant's
convictions on direct appeal in State v. Finley, 403
S.W.3d 625 (Mo.App. 2012). Movant then timely filed a Rule
29.15 motion for post-conviction relief that
alleged his trial counsel was ineffective in misadvising him
about the possible outcomes of a trial and the likely
sentence he would receive. After the motion court denied
relief, we affirmed, stating "Because Movant's
entire argument relies on testimony the motion court was not
required to credit, we affirm the denial of post-conviction
court loses jurisdiction when it issues its mandate to the
circuit court." State v. Taylor, 1 S.W.3d 610,
611 (Mo.App. 1999). An appellate court may reacquire
jurisdiction via the judicial power to recall a mandate.
State v. Nunley, 341 S.W.3d 611, 618 (Mo.banc 2011);
State v. Chapman, 167 S.W.3d 759, 761 (Mo.App.
2005). "A motion to recall mandate may be used to obtain
relief from convictions and sentences that are inconsistent
with federal constitutional rules." State v.
Thompson, 134 S.W.3d 32, 33 (Mo.banc 2004). A motion to
recall mandate can also be used to correct defects in the
appellate proceedings. See e.g., Greenbriar Hills Country
Club v. Director of Revenue, 47 S.W.3d 346, 354 (Mo.banc
2001) (mandate recalled to allow for timely filing of motion
for attorney's fees); City of Excelsior Springs v.
Elms Redevelopment Corp., 18 S.W.3d 53, 55 (Mo.App.
2000) (mandate recalled due to error in directions to circuit
court); State v. Palmer, 976 S.W.2d 29, 30 (Mo.App.
1998) (mandate recalled to allow for re-sentencing).
asserted two claims: (1) trial counsel was ineffective for
his "Failure to Advise as to Maximum Possible
Sentence" and (2) trial counsel was ineffective for his
"Erroneous Advice Concerning Elements of the
Offense[.]" As to the first claim, Movant alleged:
Pursuant to plea negotiations, the prosecution offered to
recommend to the court an aggregate sentence of fifteen years
imprisonment if [M]ovant entered a plea of guilty. After
discussions with counsel, [M]ovant was left with the belief
that if he proceeded to trial and was convicted, the trial
court would sentence him to no more than fifteen years in
pertinent part, trial counsel testified that the prosecution
never made a plea offer below twenty years'
the second claim, Movant alleged that "trial counsel
incorrectly advised him that, given the facts of his case,
the trial court could not find him guilty of
domestic assault in the first degree[.] Trial
counsel erroneously advised [M]ovant that the prosecution
could not prove that he knowingly caused serious
physical injury to the victim[.]" (Emphasis added.)
Trial counsel testified that he explained the elements of
domestic assault in the first degree to Movant and that it
would be up to the judge to decide whether Movant acted
motion court rejected Movant's testimony and believed the
testimony given by trial counsel as follows.
The Court does not believe that [trial counsel] did not tell
Movant the maximum sentence he could receive if convicted
after trial. The Court also doesn't believe that [Movant]
believed he could only receive no more than 15 years if
convicted after a trial. . . . The Court does not believe the
evidence supports that a 15 year offer was ever made. The
Court also does not believe that Movant was told by [trial
counsel] that he could only ...