THOMAS DEAN CATES,                                     )
                                                       )
           Movant-Respondent,                          )
                                                       )
v.                                                     )        No. SD33812
                                                       )
STATE OF MISSOURI,                                     )        Filed: Nov. 17, 2015
                                                       )
           Respondent-Appellant.                       )


                 APPEAL FROM THE CIRCUIT COURT OF HOWELL COUNTY

                           Honorable Don M. Henry, Associate Circuit Judge

AFFIRMED

           In April 2013, Thomas Dean Cates ("Movant") pleaded guilty, without the benefit of

a plea agreement ("open plea"), to the class A felony of murder in the second degree and the

unclassified felony of armed criminal action ("ACA"). See sections 565.021 and 571.015.1

The trial court accepted the guilty pleas and subsequently sentenced Movant to serve a total

incarceration term of fifty years: thirty years on the murder count, plus twenty years for

ACA.

           Movant, after arriving at the Department of Corrections, timely filed a pro se Form

40 seeking to set aside his conviction and sentence under Rule 24.035. Appointed counsel

timely filed an amended motion that claimed Movant's "open plea of guilty was involuntary,


1
    All statutory references are to RSMo 2000. All rule references are to Missouri Court Rules (2015).


                                                           1
unknowing, and unintelligent because plea counsel[2] . . . misinformed [M]ovant as to the

risks and consequences of rejecting a plea agreement offered by the [S]tate in favor of the

open plea."3 The claim was based on an allegation that plea counsel had "assured" Movant

and his family that Movant "would do no worse than the [State's] thirty[-]year offer[,]" and

he might get a lesser sentence by entering an open plea.

         The parties stipulated that in lieu of conducting an evidentiary hearing on the

amended motion, the motion court could enter its ruling based on the underlying criminal

file and depositions given by Movant and plea counsel. After reviewing those materials, the

motion court found that plea counsel made "affirmative representations to [M]ovant that

[Movant's] sentences would not run consecutively and [M]ovant would not be sentenced to

more than thirty years." Based on these factual findings, the motion court concluded that

Movant's plea had been entered involuntarily and granted Movant's request to withdraw his

guilty plea.

         The State now timely appeals, presenting one point relied on that we quote in toto:

                  The Motion Court erred in finding that [Movant's] trial counsel
         provided inadequate representation, because it was not ineffective assistance
         for trial counsel to offer his opinion and advice to [Movant] based on due
         diligence in asking other practicing attorneys in the community, in that giving
         advice and opinions to clients is precisely the type of thing competent and
         effective counsel should provide to a defendant.

Finding no merit in this contention, we affirm the judgment of the motion court.




2
  In their briefs, the parties refer to the attorney who represented Movant at the trial court level sometimes as
"trial counsel" and sometimes as "plea counsel." We continue the practice in this opinion.
3
  Movant was sentenced on August 2, 2013, and his pro se motion was filed on November 6, 2013 -- well
within the 180-day period permitted by Rule 29.035(b). A 30-day extension was granted for the filing of the
amended motion, and the transcript of the guilty plea and sentencing hearings was filed on December 12, 2013.
The amended motion was filed on March 12, 2014 -- the last day permitted under the aggregated 90-day period
afforded by Rule 24.035(g) for filing an amended motion following the grant of an extension.


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                         Standard of Review and Applicable Law

       An order granting or denying relief under Rule 24.035 is deemed a final judgment,

and it may be appealed by either the movant or the State. Rule 24.035(k). If an evidentiary

hearing on the motion is granted, the movant has the burden of proving his or her claims by

a preponderance of the evidence. Rule 24.035(i); West v. State, 159 S.W.3d 847, 849 (Mo.

App. S.D. 2005). "Determinations concerning credibility are exclusively for the motion

court and it is free to believe or disbelieve any evidence, whether contradicted or

undisputed." Yarberry v. State, 372 S.W.3d 568, 572-73 (Mo. App. S.D. 2012). The

findings and conclusions of the motion court are presumed correct, and we will reverse only

if the appellant demonstrates that they are clearly erroneous. Wilson v. State, 813 S.W.2d

833, 835 (Mo. banc 1991).

                               The Motion Court's Findings

       The evidence submitted to the motion court presented two different versions of what

plea counsel told Movant about the sentences he might receive if he entered an open plea.

The motion court addressed that conflicting evidence in the following manner:

                                  BACKGROUND FACTS

               3.      That under the open plea there was no agreement as to the
                       length of the sentences or whether the sentences would run
                       concurrent or consecutive.

                       ....

               8.      [I]t was agreed by the parties that the case would be
                       submitted to the court on [M]ovant's and [plea counsel]'s
                       depositions and by the court taking judicial notice of the
                       underlying criminal file in this case. . . .

                       ....




                                               3
                     EVIDENTIARY FACTS

      ....

19.   That [M]ovant's counsel told [M]ovant that they ([plea counsel
      and prior counsel]) thought the worst case scenario would be
      that [Movant] would wind up with 30 years, that they had
      spoken with different attorneys and no one thought the judge
      would run the sentences consecutively. [Plea counsel] told
      [Movant], "I can't promise you that he (the judge) won't, but
      based on who I've talked to there is no way I can see him
      running this consecutively."

20.   That [plea counsel] further testified that "There were
      reassurances I made, you know, 'Just based on my experience
      here's what I think is going to happen. I think we've got 30 in
      the bank at the worst.' What I told [Movant] was I was going
      to try and do was keep it in the 20's, or even get it down to
      19."

21.   That [plea counsel] testified on cross-examination that he
      never used the word "assure" or "promise." What he told
      [M]ovant was, "[Movant], I honestly don't believe it's going to
      happen. If I believed it was going to happen, I wouldn't be
      telling you to plead to this."

22.   That [plea counsel], however, made the following entry in his
      case activity notes on April 18: "Jail visit with family and
      [Movant]. Speak with Jacob Garrett/Donna Anthony/Moore
      & Walsh. No one thinks will run consecutive. Steve doesn't
      either. Assured [Movant] case will be concurrent." Further,
      on August 2, [plea counsel] wrote in his case activity notes:
      "Sentencing -- 50 fucking years. Tell [Movant]'s family I
      screwed up. No way I even thought would be consecutive.
      Gave assurances to [Movant] and family."

23.   That [M]ovant testified that he recalled the sentence in
      paragraph 12 of the Petition to Enter a Plea of Guilty that
      reads, "I know that a sentence I will receive is solely a matter
      within the control of the Judge."

24.   That paragraph 12 of the Petition to Enter a Plea of Guilty also
      provides that, "I declare that no one has promised or suggested
      that I will receive a lighter sentence, or probation, or any other
      form of lenience if I plea Guilty, other than as set forth in the
      plea agreement set out below." Immediately following this is



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                            the handwritten statement that, "The prosecutor has
                            recommended an open plea to the charge of Murder in the
                            Second Degree and Armed Criminal Action." Paragraph 13 of
                            the Petition further provides that, "Neither I nor any of my
                            friends or loved ones have been mistreated, threatened,
                            coerced or forced in any manner by anyone to get me to plead
                            guilty, nor were there any promises, inducements, or
                            representations made except as set forth in paragraph 12
                            above.["]

                  25.       That [M]ovant testified that [prior counsel] read the plea
                            petition in a quick hurry, spending about ten minutes with him
                            on the whole reading of it."

                  26.       That [M]ovant testified that he relied on [plea counsel]'s
                            advice and on [plea counsel] to get him a better deal than the
                            first plea agreement,[4] and had he known that the judge was
                            going to run the sentences consecutive he would not have pled
                            open.

                                 COURT'S FINDINGS AND CONCLUSIONS

                  27.       That [plea] counsel's statements that "there's no way I can see
                            him running this consecutively" and "I think we've got 30 in
                            the bank at the worst," together with [plea] counsel's
                            statements set forth in paragraphs 14 and 15 above
                            [concerning plea counsel's promise of something better than
                            the State's first offer], constitute positive or affirmative
                            representations to [M]ovant that the sentences would not run
                            consecutively and [M]ovant would not be sentenced to more
                            than thirty years.

                  28.       That the statements made by [plea] counsel set forth in
                            paragraph 26 were made by [plea] counsel to persuade movant
                            to accept the open plea offer.

                  29.       That [M]ovant reasonably relied on [plea] counsel[']s
                            representations and to [sic] accept the second plea offer.

                  30.       That reasonably competent counsel would not have assured
                            [M]ovant that the court would run the sentences concurrently
                            or that the court would not do any worse than thirty years.



4
 It is difficult to tell from the record exactly what the "first" plea offer from the State consisted of or when and
how it was communicated to Movant. In any event, such details are not relevant to the resolution of the appeal.


                                                         5
               31.    That [plea] counsel, in making the representations set forth in
                      paragraph 26 above, failed to exercise the customary skill and
                      diligence that a reasonably competent attorney would exercise
                      under similar circumstances.

               32.    That the failure to exercise the customary skill and diligence
                      that a reasonably competent attorney would exercise under
                      similar circumstances constitutes ineffective assistance of
                      counsel.

               33.    That [plea] counsel's ineffectiveness renders [M]ovant's pleas
                      of guilty involuntary.

               34.    That record of the guilty plea proceeding does not refute
                      [M]ovant's claim that he relied on his counsel's assurances that
                      the sentences would run concurrent and that at the worst
                      [M]ovant would be sentenced to thirty years.

               35.    That [M]ovant's counsel were so biased toward the notions
                      that the court would not run the sentences consecutively or do
                      any worse than thirty years that counsel did not adequately
                      and effectively advise [M]ovant of the risks and consequences
                      of accepting the open plea offer, and as a result thereof
                      [M]ovant was prejudiced because he could not make an
                      informed decision, i.e. a decision based on reasonably
                      competent legal advice, whether to accept or reject the open
                      plea offer.

                                       CONCLUSION

              It is, therefore, the Judgment of the court that [M]ovant's request to
       withdraw his plea of guilty is granted. The court further Orders and
       Adjudges that the underlying criminal case be placed on the court's trial
       calendar.

(Record and case citations omitted.)

                                       Analysis

       Contrary to the characterization of the motion court's ruling in the State's point on

appeal, the motion court did not conclude that plea counsel was ineffective because he

"offer[ed] his opinion and advice to [Movant] based on due diligence[.]" Instead, as the

State eventually acknowledges in the argument portion of its brief, the motion court



                                              6
concluded "[t]hat reasonably competent counsel would not have assured [M]ovant that the

court would run the sentences concurrently or that the court would not do any worse than

thirty years." (Emphasis added.)

                 Following a guilty plea, the ineffectiveness inquiry is limited to
         whether counsel's actions impinged on the movant's ability to enter a
         knowing and voluntary plea. State v. Roll, 942 S.W.2d 370, 375 (Mo. banc
         1997). Mistaken beliefs about sentencing affect a defendant's ability to
         knowingly enter a guilty plea if the mistake is reasonable and the mistake is
         based upon a positive representation upon which the movant is entitled to
         rely. Dorsey v. State, 115 S.W.3d 842, 845 (Mo. banc 2003). If a defendant
         is misled or induced to enter a plea of guilty by fraud, mistake,
         misapprehension, coercion, duress or fear, then the defendant should be
         permitted to withdraw the plea.

Dobbins v. State, 187 S.W.3d 865, 866-67 (Mo. banc 2006).

         As indicated in its findings and conclusions recited above, the motion court received

conflicting evidence regarding whether Movant had a reasonable but mistaken belief about

his sentence that was based on a positive representation from plea counsel. The resolution

of such conflicting evidence, as earlier noted, is within the exclusive province of the motion

court. Yarberry, 372 S.W.3d at 572. Just as "an appellate court does not act as a 'super

juror' with veto powers" in reviewing whether sufficient evidence supports a criminal

conviction, Williams v. State, 386 S.W.3d 750, 754 (Mo. banc 2012) (quotations omitted),

we will likewise not re-weigh conflicting evidence after the motion court has decided the

facts.

         The State generically acknowledges that "the record does have references to the

word 'assure,'" but it fails to set forth other substantial evidence supporting the motion

court's ruling, improperly leaving it to Movant to point out quotations from plea counsel's

own written memos made prior to the open plea that he had "[a]ssured [Movant] case will be

concurrent" and plea counsel's memo entered after the guilty plea that stated: "Sentencing -



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50 fucking years. Tell [Movant]'s family I screwed up. No way I even thought would be

consecutive. Gave assurances to [Movant] and family." The failure to acknowledge such

evidence and then analyze its significance deprives the State's brief of any analytical value.

Cf. J.A.R. v. D.G.R., 426 S.W.3d 624, 631 n.12 (Mo. banc 2014) (where argument lacked

"any analytical or persuasive value" because it did not "identify favorable evidence in the

record or explain why that evidence and its reasonable inferences are such that the court

could not reasonably decide that [the father at issue had] neglected the [c]hildren").

       The presumption that the motion court's findings and conclusions are correct stands

unrebutted, and the judgment granting post-conviction relief is affirmed.



DON E. BURRELL, PRESIDING JUDGE - OPINION AUTHOR

NANCY STEFFEN RAHMEYER, J. - CONCURS

GARY W. LYNCH, J. - CONCURS




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