Opinion
No. WD54915
Opinion Filed: November 3, 1998
APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY , THE HONORABLE WILLIAM F. MAUER, JUDGE.
Rosemary E. Percival, Kansas City, MO, for appellant[s].
John M. Morris, Asst. Attorney General, Jefferson City, MO, for respondent[s].
Before Smart, P.J.; Ellis and Howard, JJ.
Victor Martin was charged as a prior and persistent offender with the class A felony of robbery in the first degree, § 569.020, RSMo 1994. He pleaded guilty to the charge of robbery in the first degree and was sentenced to ten years imprisonment. Mr. Martin appeals the denial of his motion to vacate sentence and judgment under Rule 24.035. Mr. Martin claims that the motion court clearly erred in finding that his decision to enter a plea of guilty was voluntary, knowing and intelligent, because the evidence at the hearing showed that plea counsel caused him to believe that he was entering a plea of guilty to robbery in the second degree in exchange for a sentence of five years.
Background
On December 23, 1995, Mr. Martin was charged by amended information with robbery in the first degree. The information alleged that Mr. Martin forcibly stole a VCR from the possession of Barbara Black. Mr. Martin was charged as a prior and persistent offender. On April 26, 1996, Mr. Martin pleaded guilty to robbery in the first degree. At the guilty plea hearing, the State explained that in exchange for Mr. Martin's plea to robbery in the first degree, the State was asking for a ten year sentence. The court asked Mr. Martin if he heard the recommendation. He answered, "Yes." Mr. Martin stated that he wished to plead guilty based upon the recommendation. He stated that he had sufficient time to discuss the plea with counsel and that he was satisfied with counsel's performance.
The plea court informed Mr. Martin of his right to plead not guilty and his right to trial by jury. The court further informed Mr. Martin that he would forfeit these rights by pleading guilty. The court once again inquired whether Mr. Martin wanted to plead guilty based upon the State's recommendation. Mr. Martin replied that he did. A factual basis for the plea was established. Mr. Martin admitted that he entered the home of Barbara Black without her permission, armed with a weapon. He held a gun to Ms. Black's head and took a VCR. Thereafter, the court sentenced Mr. Martin to ten years imprisonment.
On July 29, 1996, Mr. Martin filed a pro se Rule 24.035 motion. An amended motion was filed on December 2, 1996. In the motion, Mr. Martin claims that counsel failed to accurately inform him of the terms of the plea agreement. He claims that he believed that he was pleading guilty to robbery in the second degree and that in return he would receive a five year sentence. He claims that he was told by counsel not to make any problems and to go along with the court's questioning at the plea hearing.
Rule 24.035 Hearing
A hearing on Mr. Martin's motion was held February 28, 1997. At that hearing, Mr. Martin testified that he believed that he was pleading guilty to a charge of robbery in the second degree. He claimed that he was expecting a sentence of five years, but that he found out that he was pleading to robbery in the first degree and was given a sentence of ten years. He claims that he did not tell the court of his expectations, because counsel told him "don't say nothing, just go along with the plea."
Under cross-examination, Mr. Martin admitted that he had been convicted of four prior felonies and had been in front of a judge on previous occasions. He also claimed that he lied about almost everything he testified to under oath at the plea hearing. He testified that it was not true that he entered Ms. Black's house armed with a weapon; that it was not true that he held a gun to Ms. Black's head; and that it was not true that he was, in fact, guilty of the offense. Mr. Martin also repudiated his testimony concerning his satisfaction with his attorney. He testified:
Q. I am asking you whether or not you lied under oath on April 29. I didn't ask you what anybody else told you. Did you lie under oath?
A. She — the attorney, I'm telling you what she told me. I can't tell you what I said. I didn't say — I was just going along with what she said.
Q. Do you remember when Judge Strothmann again asked you more questions he said — and again on page 7, line 18, line 19. "Mr. Martin, other than the plea agreement and the recommendation by the State have any promises been made to you to get you to plead guilty" and you answered "No". Do you remember that?
A. Yes.
Q. And then the Judge continued and he said "Any threats" and you said "No, sir". Is that correct?
A. Yes.
Q. And you were under oath, right?
A. Yes.
Q. Top of page 8, line number one. The Judge asked you "Has anyone told you to say anything other than the truth here today" and you said on line 3, "No, sir". Do you remember saying that?
A. Yes.
Q. And you were under oath when you gave that answer, correct?
A. Yes.
Q. So you told the Judge that nobody had told you to say anything other than the truth at that plea agreement, didn't you?
A. Yes.
Q. Did you lie to the Judge?
A. No, I didn't lie. Yeah, I lied to the Judge because none of it was true.
Q. You lied to the judge?
A. She told me to say that. She said just go along with the plea. I understood I was getting 5 years, that's what I thought I was coming for.
The motion court denied Mr. Martin's motion for post-conviction relief. Among its findings and conclusions, the court held:
Lastly, Movant specifically claims that his counsel was ineffective by failing to accurately inform him of the plea agreement terms. Once again, this claim is refuted by Movant's own statements made during the guilty plea. During the guilty plea, Movant admits that he heard the prosecutor's recommendation regarding the plea agreement, and that he wanted to enter a guilty plea based upon the prosecutor's recommendation.
Mr. Martin appeals.
Mr. Martin contends that the motion court clearly erred in denying his Rule 24.035 motion for post-conviction relief after an evidentiary hearing because he was denied his right to due process and to the effective assistance of counsel as guaranteed by the Fifth, Sixth and Fourteenth Amendments to the United States Constitution and Article 1, §§ 10 and 18(a) of the Missouri Constitution because his decision to plead guilty was not made intelligently, voluntarily or knowingly because plea counsel lead him to believe that he was entering a plea of guilty to robbery in the second degree in exchange for a sentence of five years. The State contends that the motion court did not clearly err in denying Mr. Martin's Rule 24.035 motion because Mr. Martin failed to present credible evidence of any positive representation he was entitled to rely upon in support of his allegations.
Standard of Review
Appellate review is limited by Rule 24.035(k) to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Findings and conclusions are deemed erroneous if, upon review of the record, this court is left with the definite and firm belief that a mistake has been made. State v. Roll , 942 S.W.2d 370, 375 (Mo. banc 1997). The movant bears the burden of proving his grounds for relief by a preponderance of the evidence. State v. Nunley , 923 S.W.2d 911, 922 (Mo. banc 1996). A defendant, by pleading guilty, waives all errors except those affecting the voluntariness or understanding with which the plea was made. White v. State , 957 S.W.2d 805, 807 (Mo.App. 1997). A guilty plea must be made knowingly and voluntarily. Johnson v. State , 921 S.W.2d 48, 50 (Mo.App. 1996).
Mistake Must Be Objectively Reasonable
A mistaken belief about sentencing may affect a movant's ability to knowingly enter a guilty plea if the mistake is reasonable, i.e., based upon a positive representation upon which the movant is entitled to rely. Baird v. State , 906 S.W.2d 746, 751 (Mo.App. 1995). Although a movant's belief about his anticipated sentence is subjective, the test that we apply for determining voluntariness is whether the guilty plea record reveals a reasonable basis for the movant to have such a belief. McMahon v. State , 569 S.W.2d 753, 758 (Mo. banc 1978).
Missouri courts have previously addressed contentions similar those made by Mr. Martin. In Pines v. State , 778 S.W.2d 724, 725 (Mo.App. 1989), the movant alleged that he had been instructed by counsel to lie during the hearing on his plea. His Rule 24.035 motion was denied without an evidentiary hearing. Id . The court in Pines held that movant's mere allegation that his attorney told him to lie did not entitle him to an evidentiary hearing. Id . at 726; see also , Cooper v. State , 879 S.W.2d 614 (Mo.App. 1994); Brown v. State , 867 S.W.2d 239 (Mo.App. 1993). In the instant case, Mr. Martin was accorded an evidentiary hearing on his claims. The motion court found that his contention was refuted by the record made of the plea hearing.
The record reveals no reasonable basis for Mr. Martin's stated belief that he was pleading guilty to robbery in the second degree in exchange for a five year sentence. At the plea hearing, Martin's plea to first degree robbery was explicit, as was the prosecution's 10 year recommendation. In order for Martin to try to get around the record of the plea, he was relegated to testifying that he intentionally lied to the plea court. He presents this court with no cogent argument as to why we should believe that he was misled and told to lie to the court by counsel. His argument that he "only had a ninth grade education and must have relied completely on counsel to advise him of the plea agreement and the procedure" is preposterous, especially in light of Mr. Martin's criminal history. He also fails to explain why he did not include this claim in his original pro se motion under Rule 24.035 if such serious misrepresentation was made to him by his plea counsel. The motion court, of course, rejected Martin's contentions.
Mr. Martin, during the hearing on his guilty plea, stated that he had heard the State's recommendation (ten years in exchange for a plea to robbery in the first degree) and that he wished to plead guilty based upon that recommendation. He stated that he had sufficient time to consult with counsel and was satisfied with counsel's representation. He answered "No" when asked whether any promises other than the plea agreement had been made to him in order to induce him to plead guilty. He also admitted all of the facts (such as robbing Barbara Black at gunpoint) on which the charge was based. The record of the plea hearing demonstrates that Mr. Martin understood the plea agreement and that his plea was made knowingly, intelligently and voluntarily. Nevertheless, Martin purports to argue that the findings and conclusions of the trial court as to the voluntariness of his plea are "clearly erroneous." He offers no explanation as to how, even if Martin believed counsel's representations to him, such belief could possibly be considered objectively reasonable. Nor does he explain how this court could possibly reach a definite and firm belief, based on the record before us, that the motion court erred in its finding.
Sanction
Rule 24.035 serves as a precautionary measure to protect the accused who, in good faith, is reasonably so confused or misinformed about the terms of his or her guilty plea that the plea can reasonably be considered involuntary. It is not an invitation to put forward patently meritless nonsense.
Courts must be cautious about imposing sanctions when there is any possibility of a good faith assertion of a right, especially in the context of a criminal prosecution. Therefore, sanctions must be used sparingly.
This case, however, is not the usual case.
Martin asked the motion court to believe that he was induced to participate in a charade to plead guilty to an offense he did not commit, and to falsely admit commission of the elements of the offense, and to lie to the plea court about his understanding that he would receive a 10-year sentence. He asked the motion court to believe that he honestly believed, in spite of all indications to the contrary, that his conviction would be only for second degree robbery, and that he would receive a sentence of only five years. He also had to persuade the motion court to find that his belief in such a proposition could be considered reasonable, because even if he did have a mistaken belief about his sentence, his mistake must be objectively reasonable. McMahon v. State , 569 S.W.2d 753, 758 (Mo. banc 1978).
The motion court had absolutely no reason, apart from Martin's seemingly preposterous assertion, to believe that Martin's plea was not well-informed and entirely voluntary. If the motion court had believed Martin, and had granted relief, such a ruling would have been shocking.
The applicable standard of review is a "clearly erroneous" standard. Because the motion court ruled against Martin, we are completely unable to grant Martin any relief unless we determine that the motion court's findings are clearly erroneous. State v. Roll , 942 S.W.2d 370, 375 (Mo. banc 1997). Just how, one may ask, could this court possibly determine the motion court's findings were clearly erroneous? It is our responsibility to defer to the trial court in matters involving credibility. If the motion court did not believe him, and the record entirely contradicts him, we fail to see any way we could possibly grant him relief. Martin has neither an arguable fact, nor any arguable logic, on his side. He has only a bold assertion, highly implausible, unsubstantiated in every way, contradicted explicitly by the record. Certainly he was legally entitled to bring his seemingly preposterous assertion to the motion court, hoping that somehow he could miraculously persuade the motion court that there was a mistake and that his mistake was reasonable. However, having failed to persuade the motion court, he had nothing at all to appeal to this court, which is bound by the credibility determinations of the trial court and by a very difficult "clearly erroneous" standard of review. "A frivolous appeal is one that presents no justiciable question and is so readily recognizable as devoid of merit that there is little prospect it can ever succeed." Prenger v. Barmhoer , 939 S.W.2d 23, 28 (Mo.App. 1997). In this case, Martin's appeal had absolutely no chance of succeeding. The appeal is frivolous. Martin's contentions are so manifestly meritless that to treat this appeal with any respect is to cheapen any potentially justiciable claim, and to demean the entire system. Consequently, pursuant to Rule 84.19, we hereby impose upon Martin a sanction of $100.00 for filing a frivolous appeal.
We also remind counsel that the client does not own the professional soul of the lawyer. The lawyer, including the public defender, should decline to assert a contention which has no prospect of success. This court is mindful of, and sympathetic to, the plight of practicing lawyers, who labor under heavy case loads and constant time pressures. We also recognize that these pressures may be even greater for those serving in the Public Defender System. Nevertheless, we expect attorneys to bring to this court only those contentions which are reasonably arguable. "A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, . . ." Rule 4-3.1, Rule of Professional Conduct.
The judgment is affirmed, and Martin is hereby ordered to pay the sum of $100.00 to the State of Missouri as a sanction for
frivolous appeal.