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Finley v. State

Court of Appeals of Missouri, Southern District, Second Division

December 10, 2019

CEBRON CORDELL FINLEY, Movant-Appellant,
v.
STATE OF MISSOURI, Respondent-Respondent.

          APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY Honorable Gayle L. Crane, Circuit Judge

          Lynch, J., Burrell, J, and Francis, J.

         PROCEEDING ON MOTION TO RECALL MANDATE

          PER CURIAM.

         We are 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[1] 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 relief."

         STANDARD OF REVIEW

         "This 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).

         DISCUSSION

         Movant 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 prison.

         In pertinent part, trial counsel testified that the prosecution never made a plea offer below twenty years' imprisonment.

         As to 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 knowingly.

         The 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 ...

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