             In the Missouri Court of Appeals
                                     Eastern District
                                                   DIVISION III

REGINALD TAYLOR,                                         )          No. ED101114
                                                         )
                    Appellant,                           )          Appeal from the Circuit Court
                                                         )          of St. Louis County
vs.                                                      )
                                                         )          Honorable Carolyn C. Whittington
STATE OF MISSOURI,                                       )
                                                         )
                    Respondent.                          )          FILED: March 10, 2015



                                                     Introduction

           Appellant Reginald Taylor (“Taylor”) appeals from the judgment of the motion court

denying his Rule 24.0351 motion for post-conviction relief without an evidentiary hearing.

Taylor pleaded guilty to one count of domestic assault in the first degree and received a

suspended sentence of five years’ imprisonment. Taylor’s probation was subsequently revoked

and the trial court executed the five year sentence. On appeal, Taylor argues that the motion

court clearly erred in denying his motion for post-conviction relief because Taylor alleged facts

not conclusively refuted by the record which would entitle him to relief. Specifically, Taylor

1
    All Rule references are to Mo. R. Crim. P. (2013).
alleges he was denied effective assistance of counsel because he was assigned new appointed

counsel after his preliminary hearing, and his new counsel was “disinterested” in trying the case,

rendering his guilty plea involuntary. Because the record conclusively refutes Taylor’s claim,

the motion court did not clearly err in denying his Rule 24.035 motion without an evidentiary

hearing. Accordingly, we affirm the judgment of the motion court.

                                 Factual and Procedural History

       The State charged Taylor with one count of domestic assault in the second degree.

Brooke Curtis (“Curtis”) was initially appointed as counsel for Taylor. Curtis served as Taylor’s

attorney until after his preliminary hearing and arraignment, at which point another public

defender from the same office, Erica Nuyen (“Nuyen”), assumed responsibility for Taylor’s

defense. Nuyen served as Taylor’s attorney during plea negotiations and the plea hearing.

       On March 23, 2012, pursuant to plea negotiations with the State, Taylor pleaded guilty to

one count of domestic assault in the second degree, and received a suspended sentence of five

year’s imprisonment and probation. At the plea hearing, the trial court asked Taylor several

questions about his guilty plea and Nuyen’s performance. Taylor confirmed that he understood

the crime with which he was charged, that he had apprised Nuyen of all facts and circumstances

surrounding the crime, and that Nuyen had fully explained the nature of the charged crime,

including the elements and any possible defenses Taylor may have. The State then summarized

the evidence it would have presented had the case gone to trial, which Taylor confirmed was

correct. The trial court summarized the proposed plea agreement, including the terms associated

with Taylor’s proposed probation. Taylor stated that he understood the terms of the agreement

and understood that if the trial court accepted his guilty plea, he would be placed on probation.

Taylor further stated that he understood his probation could be revoked, resulting in the




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execution of his jail sentence. The trial court confirmed that Taylor still wanted to move forward

with his guilty plea, after which the following exchange occurred:

       COURT: Has anyone made any promises or threats to you or to your family to induce

       you to plead guilty?

       TAYLOR: No.

       COURT: Has your attorney refused to comply with any of your requests?

       TAYLOR: No.

       COURT: Has your attorney answered all your questions?

       TAYLOR: Yes.

       COURT: Have you been given enough time to discuss your case with your attorney?

       TAYLOR: Yes.

       COURT: Do you have any complaints or criticisms of your attorney?

       TAYLOR: No.

       COURT: Do you know of anything she could have done that she hasn’t?

       TAYLOR: No.

       COURT: Do you know of any witnesses she could have contacted but didn’t?

       TAYLOR: No.

       COURT: Has your attorney investigated the case to your complete satisfaction?

       TAYLOR: Yes.

       COURT: Do you believe you have been fully advised by your attorney as to all aspects

       of your case, including your legal rights and the possible consequences of your plea?

       TAYLOR: Yes.

       COURT: Do you believe your attorney had adequately, completely and effectively

       represented you in your defense to this charge?


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          TAYLOR: Yes.

The trial court then asked Taylor a series of questions to ensure that Taylor understood the rights

he was giving up by pleading guilty rather than proceeding to trial, including the right to a trial

by jury, the right to be represented by counsel at trial, and the presumption of innocence, among

others.

          The trial court accepted Taylor’s guilty plea, finding that the plea had been “made

voluntarily and intelligently, with a full understanding of the charge and the consequences of the

plea and with an understanding of his rights attending a jury trial and the effect of a plea on those

rights.” The trial court then sentenced Taylor to five year’s imprisonment, suspended execution

of the sentence, and placed Taylor on five years’ probation.

          On August 2, 2012, Taylor appeared before the trial court for a probation revocation

hearing. The trial court found that Taylor had violated the terms of his probation and executed

his previously-imposed five year sentence. Prior to sentencing, the trial court questioned Taylor

about his representation by legal counsel. Taylor confirmed that he was represented by both

Curtis and Nuyen during his case. Taylor had the following exchange with the trial court

regarding their assistance:

          COURT: Did Ms. Nuyen do all the things that you asked her to do in representing you?

          TAYLOR: Yes.

          COURT: Was there any directive you gave her that she didn’t follow?

          TAYLOR: No.

          COURT: With regard to the services provided to you by Ms. Curtis early in the case, did

          she do what you asked her to do?

          TAYLOR: Yes.

          COURT: And was there any direction that you gave her that she didn’t follow?


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TAYLOR: Yes.

COURT: And what was that?

TAYLOR: About bonds and reduction of bonds and retaining information on the case.

COURT: Okay. And did you have sufficient opportunity to discuss your case with Ms.

Nuyen before you entered your plea of guilty?

TAYLOR: No.

COURT: All right. And what was it that you were not able to discuss with Ms. Nuyen?

TAYLOR: The facts of the case of what evidence they had and searches for particular

information.

COURT: All right. And let me ask you, did Ms. Nuyen enter into plea negotiations on

your behalf?

TAYLOR: Yes.

…

COURT: Okay. And did you agree with what was offered?

TAYLOR: Yes.

COURT: And was the offer, the five years in the custody of the Department of

Corrections, and then the sentence suspended, execution of sentence, and be placed on

probation?

TAYLOR: Yes.

COURT: And is that what you agreed to?

TAYLOR: Yes.

…

COURT: And once again, the sentence that the Court entered on March 23, 2012, that’s

what you agreed to?


                                       5
       TAYLOR: Yes.

       COURT: Okay. Other than the plea bargaining that went on on your behalf, did Ms.

       Nuyen or did Ms. Curtis communicate any threats or promises to you to induce you to

       enter your plea of guilty?

       TAYLOR: No.

       COURT: Are you satisfied with the services rendered to you by Ms. Nuyen as your

       attorney whether or not you’re satisfied with the outcome of the case?

       TAYLOR: No.

       COURT: All right. And are you satisfied with the services rendered to you by Ms.

       Curtis as your attorney whether or not you are satisfied with the outcome of the case?

       TAYLOR: No.

The trial court found that no probable cause existed to believe that Taylor received ineffective

assistance of counsel and concluded the hearing.

       Taylor subsequently filed a pro se Rule 24.035 motion for post-conviction relief.

Counsel was appointed and filed an amended motion for post-conviction relief. In his amended

motion, Taylor alleged that he was denied effective assistance of counsel because (1) he had

insufficient time to discuss the case with counsel prior to pleading guilty, and (2) he was

discouraged when Curtis was replaced by Nuyen, who seemed unfamiliar with the case. But for

this ineffective assistance, Taylor maintained, he would not have pleaded guilty but would have

insisted on going to trial. In support of his claim, Taylor alleged that he was dismayed and

discouraged when his case was transferred from Curtis to Nuyen. Taylor also alleged that he felt

Nuyen would not vigorously defend him at trial because he and Nuyen had only one meeting,

during which Nuyen seemed more interested in negotiating a guilty plea than investigating the




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case. Taylor further alleged that he did not have enough time to speak with Nuyen about the

case prior to entering his guilty plea.

       The motion court denied Taylor’s request for an evidentiary hearing and entered its

Findings of Fact, Conclusions of Law, Order, and Judgment denying Taylor’s motion for post-

conviction relief. The motion court concluded that Curtis and Nuyen provided effective

assistance of counsel and that Taylor’s claim of ineffective assistance was refuted by the record.

The motion court focused on the statements made by Taylor at both the plea hearing and the

probation revocation hearing, finding:

       [Taylor] stated he had enough time to speak with his attorney, that his attorney answered
       all his questions, that he was given enough time to discuss his case with his attorney, that
       he had no complaints with his attorney, and that he did not know of any witnesses she
       could have contacted. At the probation revocation hearing [Taylor] stated that both his
       attorneys did everything he asked of them. [Taylor’s] point 8 is refuted on the record and
       is denied.

This appeal follows.

                                           Point on Appeal

       In his sole point on appeal, Taylor contends that the motion court clearly erred in denying

his Rule 24.035 motion for post-conviction relief without an evidentiary hearing because Taylor

alleged facts not conclusively refuted by the record which would entitle him to relief in that

Taylor was denied effective assistance of counsel, rendering his guilty plea involuntary.

Specifically, Taylor claims that he was denied effective assistance of counsel, rendering his

guilty plea involuntary, because (1) his attorney was switched after his preliminary hearing, and

(2) the replacement attorney was disinterested in trying the case.

                                          Standard of Review

       Appellate review of the denial of a Rule 24.035 motion is limited to a determination of

whether the motion court's findings, conclusions, and judgment are clearly erroneous.

Wooldridge v. State, 239 S.W.3d 151, 153-54 (Mo. App. E.D. 2007). The motion court's

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findings and conclusions are presumptively correct and will be overturned only when this court,

after reviewing the entire record, is left with a “definite and firm impression that a mistake has

been made.” Vaca v. State, 314 S.W.3d 331, 334 (Mo. banc 2010). After a guilty plea, our

review is limited to a determination of whether the movant’s plea was knowing and voluntary.

Loudermilk v. State, 973 S.W.2d 551, 553 (Mo. App. E.D. 1998).

       To be entitled to an evidentiary hearing on a post-conviction relief claim, a movant must

(1) allege facts, not conclusions, that, if true, would warrant relief; (2) the facts alleged must

raise matters not refuted by the record and files in the case; and (3) the matters complained of

must have resulted in prejudice to the movant. Barnett v. State, 103 S.W.3d 765, 769 (Mo. banc

2003). An evidentiary hearing is not required if the files and records of the case conclusively

show that the movant is entitled to no relief. Id. Where a movant alleges ineffective assistance

of counsel following a guilty plea, “[i]f an examination of the guilty plea proceedings directly

refute that movant’s plea was involuntary, movant is not entitled to an evidentiary hearing.”

Cain v. State, 859 S.W.2d 715, 717 (Mo. App. E.D. 1993).

                                             Discussion

       Taylor claims that he was induced to plead guilty by virtue of having his attorney

switched from Curtis to Nuyen, and then by Nuyen’s perceived disinterest in the case. Taylor

avers that he had insufficient time to discuss the case with Nuyen, and that Nuyen seemed

unfamiliar with the case and more interested in negotiating a guilty plea than investigating

Taylor’s defense. Taylor maintains that but for these deficiencies in counsel’s performance, he

would not have pleaded guilty and would have instead insisted on proceeding to trial.

       Taylor posits that the motion court clearly erred in denying his Rule 24.035 motion

without an evidentiary hearing because the motion court incorrectly concluded that Taylor’s

ineffective assistance claim was refuted by the record. Specifically, Taylor argues that the


                                                   8
motion court selectively read the record in reaching its conclusion. Taylor maintains that a

comprehensive reading of the record, taking into account Taylor’s complaints about Curtis and

Nuyen at the probation revocation hearing, demonstrates that the record does not, in fact, refute

Taylor’s claim. We disagree.

       In order to prevail on a claim of ineffective assistance of counsel, a movant must show by

a preponderance of the evidence (1) that his attorney failed to exercise the customary skill and

diligence that a reasonably competent attorney would perform under similar circumstances, and

(2) that he was prejudiced thereby. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987)

(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). When a claim of ineffective

assistance of counsel follows a guilty plea, the claim of ineffective assistance is “immaterial

except to the extent it impinges on the voluntariness and knowledge with which a [movant] pled

guilty.” Cain, 859 S.W.2d at 717. Prejudice exists if the movant can show that, but for counsel’s

ineffective assistance, he would have not pleaded guilty and instead would have insisted upon

going to trial. May v. State, 309 S.W.3d 303, 306 (Mo. App. E.D. 2010).

       In the context of a guilty plea, analysis of an ineffective assistance of counsel claim is

limited to whether the alleged ineffective assistance impinged on the defendant's ability to make

a knowing and voluntary plea of guilty. Evans v. State, 921 S.W.2d 162, 164 (Mo. App. W.D.

1996). In other words, in order to prevail on an ineffective assistance of counsel claim following

a guilty plea, a movant “must establish a serious dereliction of duty that materially affected his

substantial rights and further show that his guilty plea was not an intelligent or knowing act.” Id.

Here, the record clearly and conclusively refutes Taylor’s claim that his guilty plea was

involuntary.

       At the plea hearing, Taylor answered numerous specific questions posed by the trial court

regarding the voluntariness of his plea and the effectiveness of counsel. Taylor repeatedly


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affirmed that his plea was knowing and voluntary, and repeatedly stated that counsel had

performed satisfactorily. Taylor stated that he understood the charge against him, that Nuyen

had fully explained the elements of the crime and any possible defenses Taylor may have had,

and that he fully understood the consequences of violating his proposed probation. Taylor also

denied that anyone had made any promises or threats to induce him to plead guilty, confirmed

that he understood the consequences of his guilty plea, and stated that he understood the various

rights he was giving up by virtue of pleading guilty rather than proceeding to trial. Finally,

Taylor repeatedly expressed satisfaction with counsel’s performance, confirming that he had no

complaints or criticisms of Nuyen and that Nuyen had complied with all of his requests,

answered all of his questions, and had “adequately, completely, and effectively” represented him.

Taylor also confirmed that he had been given enough time to discuss his case with Nuyen.

       At the probation revocation hearing, Taylor again confirmed that his guilty plea was

entered knowingly and voluntarily. Taylor confirmed that Nuyen had entered into plea

negotiations on his behalf, and responded affirmatively when asked whether he agreed with the

plea deal that was offered. He also twice confirmed that he agreed to the plea deal, and again

confirmed that no one had threatened him or promised him anything to induce his guilty plea.

Taylor additionally confirmed that Nuyen had done everything asked of her in representing him,

and followed every directive given to her, but then expressed dissatisfaction with certain aspects

of his representation. Taylor stated that he did not have sufficient time to discuss his case with

Nuyen before pleading guilty, and was not satisfied with the services rendered to him by either

Curtis or Nuyen.

       A review of the entire record indicates that Taylor’s guilty plea was made voluntarily and

knowingly. Taylor repeatedly confirmed that he entered his guilty plea voluntarily, with a full

understanding of both the charges against him and the consequences of the plea. The record thus


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