 

In the Missouri Court of Appeals
Eastern District

DIVISION FOUR
TERRY T. WATSON, ) ED103245
) .
Appellant, ) Appeal from the Circuit Court
) of the City of St. Louis
v. ) l322-CC00457
)
STATE OF MISSOURI, ) I-Ionorable Bryan L. Hettenbach
)
Respondent. ) Filed:l October 25, 2016

Introduction
Terry Watson (Movant) appeals the judgment of the motion court denying his
motion for post-conviction relief under Rule 29.151 Without an evidentiary hearing, as Well
as the motion court’ s denial of his motion to amend the judgment We reverse and remand
for an evidentiary hearing on the claims in Movant’s Rule 29.15 motion.
Background
The State charged l\/lovant With robbery in the first degree, armed criminal action,
resisting arrest, and trafficking in the second degree A jury convicted Movant of all

charges except armed criminal action, and the trial court sentenced Movant to a total of 18

 

' All rule references are to Mo. R. Crim. P. (2013), unless otherwise indicated

 

years’ imprisonment rl"his Court affirmed Movant’s convictions and sentence on appeal.
State v. Watson, 386 S.W.3d 907 (Mo. App. E.D. 2013).

Movant timely filed a pro se motion to vacate, set aside, or correct the judgment on
February li, 2013, and later an amended motion through counsel.2 The motion court
denied Movant’s amended motion without an evidentiary hearing, finding that the record
conclusively refuted all ofMovant’s ciaims. l\/lovant filed a motion to amend thejudgment
under Missouri Rule of Civil Procedure 78.07(0), arguing that his post-conviction counsel
had abandoned him in that she never consulted with him before filing an amended motion

3 The motion

and had substantially altered the factual allegations in his original motion.
court denied h/lovant’s motion to amend the judgment, finding it amounted to an allegation
of ineffective assistance of post-conviction counsel, This appeal follows
Standard of Review
Our review of the motion court’s denial of a motion for post-conviction relief is
“limited to a determination of whether the findings of fact and conclusions of law are

clearly erroneous.” l-lickey v. State, 328 S.W.3d 225, 227 (Mo. App. E.D. 2010) (citing

Rule 29.15(1<)). Findings and conclusions are clearly erroneous “only if, after a full review

 

2 Movant argues that his amended motion was untimely and that he was therefore abandoned by post-
conviction counsel. Rule 29.15(g) allows up to 90 days to file an amended inotion, including a 30-day
extension, ii'om counsel’s entry of appearance Under the facts here and Missouri Rule of Civil Procedure
44.0](a), with an extension the rule allowed until June 19, 2013, to file an amended motion Though
Movant’s post-conviction counsel requested a 45-day extension and the parties disagree about the meaning
of the trial court’s order granting it; because the amended motion was filed on May 30, 2013, and because
the trial court accepted and ruled upon the motion, We consider it timely. § Federhofer v, State, 462 S.W.3d
838, 841 (Mo. App. E.D. 2015) (citing cases) (amended motion considered timely even if request for
extension filed after expiration of original time limit, so long as amended motion filed within total 90-day
period allowed by inle); Volner v. State, 253 S.W.3d 590, 592-93 (Mo. App. S.D. 2008) (though motion
court did not enter order granting 30-day extension, motion court’s acceptance of filing of amended motion
and subsequent hearing on motion indicated motion court’s exercise of discretion to extend time period as
permitted by rule).

3 Generally, claims of abandonment are addressed by means of a motion to reopen the Rule 29.15 proceeding
”Smee Gehrke v. State, 280 S.W.3d 54, 57 n.3 (Mo. banc 2009) (citing Crenshaw v. State, 266 S.W.3d 257, 259
(MO. banc 2008)).

 

 

 

of the record, this Court is left with a definite and firm impression that a mistake has been
made.” I_d. An evidentiary hearing on the claims contained in the motion is warranted
When (l) the motion alleges facts, not conclusions, warranting relief; (2) the facts alleged
are not refuted by the record; and (3) the matters complained of resulted in prejudice to the
movant. Teer v. State, 198 S.W.3d 667, 669 (Mo. App. E.D. 2006) (citing Morrow v. State,
21 S.W.3d 819, 822-23 (Mo. banc 2000)).
Discussion

Movant argues that the motion court clearly erred in denying his amended Rule
29.15 motion without a hearing because he alleged unrefuted facts showing that his trial
counsel was ineffective for failing to explain the elements of first-degree robbery and of
accomplice liability, causing him to reject a more favorable plea offer. We discuss these
arguments together, and we find Movant was entitled to an evidentiary hearing

A defendant has the right to effective assistance of counsel during plea negotiations,
as it is a “critical stage” of the criminal proceeding Williams v. State, 367 S.W.3d 652,
654 (Mo. App. E.D. 2012) (citing Lafler v. Cooper, 566 U.S. ---, 132 S.C. 1376 (2012),
and Missouri v. Frye, 566 U.S. ---, 132 S.Ct. 1399 (2012)). In order to show his trial
counsel was ineffective, Movant had to allege unrefuted facts showing his counsel’s
performance fell below the standard of slriil, care, and diligence of a reasonably competent
attomey; and that Movant was prejudiced in that but for counsel’s errors, the outcome
would have been different Williams, 367 S.W.?)d at 655 (citing Strickland v. Washington,
466 U.S. 668, 687 (1984)). In the context of plea negotiations, to show prejudice, Movant
must allege unrefuted facts “demonstrate[ing] a reasonable probability [he] would have

accepted the earlier plea offer had [he] been afforded effective assistance of counsel.”

 

 

Joseph v. State, 482 S.W.3d 457, 460 (Mo. App. E.D. 2016) (quoting §13{§, 132 S.Ct. at
1409-10).

Here, I\/lovant’s amended motion contains two allegations that his trial counsel
ineffectively advised him regarding the State’s plea offer of 10 years. First, he argues his
trial counsel misadvised him that in order for Movant to be convicted of robbery in the first
degree, the State Would have to prove that Movant’s co-defendant used a gun to forcibly
take the victim’s property, with “bodily harm toward the victim,” when in fact the charge
of first-degree robbery only required a showing that one of them “[d]isplay[ed] or
threaten[ed] the use of what appear[ed] to be a deadly weapon or dangerous instrument.”
Section 569.020.1(4), RSMo. (2000). Second, Movant argues that his trial counsel failed
to advise him regarding the law of accomplice liability and that he could be convicted on
the basis of his co-defendant’s actions Both failures, he alleges, caused him to reject a
plea offer of 10 years.4

The motion court essentially found that Movant failed to allege prejudice because
he did not specifically allege that the lO-yeai‘ plea offer was for all of the charges, rather

than just first-degree robbery. However, the motion as a whole implies that the 10-year

 

“ We note that Movant maintains that he actually did not know of the plea offer, and this was the basis of his
claim of ineffective assistance of counsel in his pro se motion. He argued in his motion to amend the motion
court’s judgment that he was abandoned by post-conviction counsel because she changed the factual
allegations without consulting with liim. While Rule 29. 15 formerly required a movant to verify an amended
motion before filing, the Missouri Supreme Couit has since removed this requirement The Missouri
Supreme Court has limited the scope of abandonment claims to cases in which post-conviction counsel
essentially takes no action on a movant’s behalf or fails to file an amended motion in a timely manner, and
the court has repeatedly declined to expand its scope. Barnett v. State, 103 S.W.3d 765 , 7 74 (Mo. banc 2003)
(citing cases). Here, Movant’s counsel timely filed an amended motion containing cognizable claims. Thus,
Movant’s argument that his post-conviction counsel failed to consult with him and altered the factual
allegations in the amended motion does not constitute a claim of abandonment §e_e Winfield v. State, 93
S.W.3d 732, 738 (Mo. banc 2002) (noting “{t]here is no recognized constitutional right to counsel in a post-
conviction proceeding”; holding that movant’s argument that Rule 29.15 punishes him by binding him to
claims raised in amended motion and waiver of all others was not claim of abandonment). The motion court
did not err in denying Movant’s motion to amend the judgment

4

 

 

 

plea offer would have included all charges. For example, in alleging prejudice, he states
that had he received competent advice, he “would have been sentenced to ten (10) years of
incarceration instead of eighteen (18).” Giving Movant the benefit of the doubt regarding
his language, g Hatcher v. State, 4 S.W.3d 145, 148 (Mo. App. S.D. 1999), we find he
sufficiently alleged prejudice, and this allegation is not refuted by the record. If in fact the
State’s offer was only for the robbery charge, the State will have an opportunity to refute
Movant’s claim at the hearing At present, his claim that he would be serving 10 years
rather than 18 is not refuted by the record.5 v
Second, Movant alleged that he received inaccurate advice from his attorney
regarding the burden of proof the State had to carry at trial, both regarding the elements of
robbery in the first degree and regarding accomplice liability. The record does not refute
Movant’s claims that his attorney misadvised him in these respects6 ln fact, during
Movant’s sentencing hearing, when the trial court asked Movant about his counsel’s
representation, he answered every question negatively. Movant expressed that he felt his
counsel did not confer with him, was disloyal, did not answer all of his questions, and that
he had additional complaints but would include them in his motion. While this by no means

establishes Movant’s counsel Was ineffective, and we are cognizant of Movant’s prior

 

5 The State insists Movant’s motion nevertheless failed because Movant did not allege that the State would
not have withdrawn its offer or that the trial court would have accepted his guilty plea. Though these are
elements Movant would have to show to establish prejudice, this Court has held that omitting them from the
motion is not fatal. §§e Williams v. State, 367 S.W.3d 652, 657-58 (Mo. App. E.D. 2012) (noting that rules
encourage evidentiary hearin gs and that whether both prosecutor and trial court would uphold plea agreement
are questions that can be addressed at evidentiary hearing). We find similarly that Movant’s omission of
these specific elements is not fatal to his motion in this case.

6 However, as part of this argument, Movant points to statements his trial counsel made during Movant’s
sentencing hearing that allegedly illustrate his trial counsel’s lack of knowledge regarding the elements of
first-degree robbery When read in context, we agree with the motion court’s conclusion that Movant
misinterprets these statements Movant‘s trial counsel was arguing the verdicts were inconsistent, and he
admitted lacking knowledge regarding Movant’s prior out-of-state convictions that Movant failed to disclose
to him. Thus, this portion of Movant’s argument is without merit.

5

 

 

convictions and familiarity with the legal system,,7 the record here did not conclusively
refute Movant’s claims that his trial counsel was ineffective, and that he was prejudiced
thereby.

“In order to ensure that claims are decided accurately, the rules encourage
evidentiary hearings.” Williams, 367 S.W.3d at 657 (quoting Will<es v. State, 82 S.W.3d
925, 929 (l\/lo. banc 2002)). Courts should err on the side of having a hearing to allow
movants the full opportunity to present evidence which effectively permits thorough review
in both the trial and appellate courts. Holding a hearing, in and of itself, does not imply
merit to the motion, but is the better trial court practice

We conclude Movant was entitled to an evidentiary hearing on his claims under the
circumstances here. Points granted.

Conclusion

The motion court did not err in denying Movant’s motion to amend the judgment
However, Movant’s amended motion alleged unrefuted facts that Would, if true, entitle him
to relief; thus, the motion court clearly erred in failing to conduct an evidentiary hearing
on the claims in Movant’ s amended motion that his trial counsel misadvised him regarding
the elements of robbery and the proof necessary for accomplice liability, resulting in
prej udice. We reverse the motion court’s judgment on Movant’s 29. 15 motion and remand

for an evidentiary hearing on these claims.

   

Gary h?l irtner,\$§., Judge
J ames M. Dowd, P.J., concurs.

Kurt S. Odenwald, J., concurs.

 

 

7 The record also reflects that Movant failed to inform his trial counsel of out-of-state prior convictions,
possibly resulting in a higher sentence than his counsel would have anticipated in going to trial.

6

 

 

 

  

 

