 

In the Missouri Court of Appeals
Eastern District

DIVISION F()UR
VERNELL WHITLEY, ) ED1037l6
)
Appellant, ) Appeal from the Circuit Cotn't
) of the City of St. Louis
v. ) l422-CC09888
)
STATE OF MISSOURI, ) Honorable Julian L. Bush
)
Respondent. ) Filed: October IS, 2016

Introdnction
Vernell Whitley (Movant) appeals from the motion conrt’s judgment denying his
Rule 24.035l motion after an evidentiary hearing Movant claims that the motion court
erred in denying his request for post-conviction relief, because plea counsel was ineffective
for failing to advise him that by pleading guilty he would waive his right to appeal the trial
court’s ruling on his alleged speedy-trial Violation. We affirm
Factual and Procedural Background
The State charged Movant with two counts of first-degree robbery and two counts
of armed criminal action (ACA), stemming from a February 2012 incident in which

Movant forcibly stole the cell phones of two people and in doing so displayed what

 

l Ail rule references are to Mo. R. Crim. P. (20]6), unless otherwise indicated

 

appeared to be a deadly Weapon. At the time of his arrest on February 8, 2012, l\/lovant
was on probation for a 2011 conviction for possession of a controlled substance On
August 23, 2012, the trial court revoked Movant’s probation and sentenced him to five
years in the Missouri Department of Corrections.

On August 22, 2012, Movant filed a pro se speedy-trial motion on the robbery and
ACA charges; he filed a second speedy-trial motion in January of2013', and in September
of 2013, he filed a motion to dismiss fora violation of his right to a speedy trial. His case
was not scheduled for trial until January 21, 2014. The parties appeared for trial on January
21, 2014, whereupon the trial court heard arguments on Movant’s motion to dismiss for a
violation of his right to a speedy trial. The trial court determined that, while the overall
delay of nearly two years between his arrest and his trial was “appalling” and indicated a
“systemic failure,” 11.5 months of the 235-month delay was attributable to Movant’s
requests for continuances2 'l"he court overruled Movant’s motion to dismiss the
indictment, finding that the 12-month delay attributable to the State was not egregious and
not deliberate, and that the delay did not prejudice 1\/10vant.3

Trial began and after voir dire, Movant announced that he wished to Withdraw his
plea of not guilty and to enter a plea of guilty not pursuant to the State’s recommendation
of 15 years. The State stated that had the case gone to trial, it Would have proven Movant
approached John J ones and Gregory J ones with a gun, whereupon Movant and his

associates took a cell phone and U.S. currency from John Jones, and a cell phone from

 

2 Although Movant objected to at least one of the continuances requested by his counsel, a defendant is bound
by the actions of his attorney and the delays from defense-requested continuances are attributable to the
defendant in determining a speedy-trial violation State v. Holmes, 428 S.W.2d 571, 572 (Mo. 1968)`

3 The trial court reached this conclusion in part based on the fact that Movant would have been incarcerated
regardless, due to his probation revocation

 

Gregory Jones. Movant denied these facts, agreeing he was there but stating a robbery did
not occur. Nevertheless, he stated that although a crime had not occurred, he wished to
plead guilty. The trial court inquired if he wished to plead guilty pursuant to M.4

The court took a break for Movant’s counsel to explain an Aitl)rd plea to Movant,
alter which Movant again reiterated that he did not want to go to trial but wanted to plead
guilty. He agreed tlie State had sufficient evidence to prove its case because it would be
his word versus the two witnesses’ testimony, but he did not admit he committed the crimes
as charged The court listed the rights Movant would waive by pleading guilty, including
the right to appeal his guilty verdict, and accepted Movant’s guilty plea. The court
sentenced Movant to concurrent sentences of 15 years in the Department of Corrections on
each of the four counts.

Movaiit timely filed his pro se motion for post-conviction relief pursuant to Ruie
24.035. Through appointed counsei, he argued his plea counsel was ineffective for failing
to advise him that by pleading guilty he was waiving his right to challenge the trial court’s
ruling on his motion to dismiss for a speedy-trial violation. Had Movant known that by
pleading guilty he was waiving this right, he would not have pled guilty. He requested an
evidentiary hearing, which the motion court granted.

At the evidentiary hearing, l\/lovant’s plea counsel, Matthew Waltz (Waltz),
testified that although he did not specifically tell Movant that by pleading guilty he would
waive his right to appeal the court’s speedy-trial ruling, the trial court specifically told
Movant he Would be giving up his right to appeal and Waltz had discussed with Movant in

a “general sense” that he would not be able to file an appeal. Waltz stated that had the case

 

4 North Cai'olina v. Alfoi‘d, 400 U.S. 25 (1973).

 

gone to trial and resulted in a guilty verdict, he would have included the speedy-trial
argument in his motion for a new trial. Moreover, Waltz testified that l\/Iovant initiated the
decision to change his plea to guilty because he wanted to gamble on a sentence less than
the State’s recommendation of 15 years. l\/lovant also testified, saying that while Waltz
and the plea court had discussed that by pleading guilty Movant would waive his right to
appeal, he believed that the waiver only applied to the guilty verdict and not the speedy-
trial issue. He stated he pled guilty because he was hoping for a sentence of less than 15
years.

At the close of the evidentiary liearing, the motion court denied l\/lovant’s Rule
24.035.motion. The motion court stated that it “disbelieved” Movant’s testimony that he
would not have pled guilty if he had known he would have been unable to appeal the
speedy-trial issue, and thus Movant’s plea was not involuntary and he was not prejudicedl
This appeal followsl

Discussion

On appeal, Movant claims the motion court clearly erred in denying his Rule 24.035
motion after an evidentiary hearing, because Waltz was ineffective for failing to advise
Movant that by pleading guilty he was waiving his right to appeal the speedy-trial violation.
We disagree

Our review of the denial of a Rule 24.035 motion is “limited to a determination of
whether the findings and conclusions of the trial court are clearly erroneous.” Rule
24.035(1<); Weei<s v. State, 140 S.W.3d 39, 44 (Mo. banc 2004). Tliis court will find error
only if, after review of the entire record, we have a definite and firm belief that a mistake

has been inade. Weeks, 140 S.W.3d at 44. On review, the motion court’s findings and

 

conclusions are presumptively correct. Wilson v. State, 8l3 S.W.2d 833, 835 (Mo. banc
1991).

After a guilty plea, our review is limited to a determination of Whether the
underlying plea was knowing and voluntary, and counsel’s ineffectiveness is only relevant
to the extent it affects the voluntariness of the inovant’s piea. Wilkins v. State, 802 S.W.Zd

49l, 497 (Mo. banc 1991); Louderinilk v. State, 973 S.W.2d 551, 553 (Mo. App. E.D.

 

1998); see also Chaney v. State, 223 S.W.3d 200,'206 (l\/lo. App. S.D. 2007) (Alford plea
is treated same as guilty plea where defendant admits to committing crimes charged). The
movant bears the burden of proving his post-conviction claims by a preponderance of the
evidence, and to prove ineffective assistance of counsel, the movant must show both that

counsel’s representation fell below an objective standard of reasonableness and that the

movant was prejudiced as a result. Ervin v. State 423 S.W.3d 789, 793 (Mo. App. E.D.

 

2013). To show prejudice after a guilty plea, the movant must show that but for his
counsel’s alleged unreasonable conduct, there is a reasonable probability he would not have
pled guilty but would have insisted on going to trial. ld;

The motion court here “disbelieved” Movant’s testimony that he would not have
pled guilty had he known he could not pursue his claim for a speedy-trial violation on
appeal, and thus it concluded no prejudice occurred. “The motion court is free to believe
or disbelieve any evidence, whether contradicted or undisputed, including a movant’s
testiinony.” Simmons v. State, 429 S.W.3d 464, 466 (Mo. App. E.D. 2014). We defer to
the motion court’s credibility determinations D § Moreover, we agree with the motion
court that Movant’s plea was knowing and voluntary, and that he would not have gone to

trial even if Waltz had properly advised him. Movant argues the fact that he vigorously

 

pursued his speedy-trial violation raised the inference that he desired to pursue the matter
on appeal. However, the plea record shows that Movant specifically acknowledged he
would not be able to appeal from his guilty verdict and that counsel testified at the
evidentiary hearing he told Movant in a “general sense” pleading guilty would waive his
right to appeal. This Court can infer from these two warnings that Movant understood he
would not be able to appeal, regardless of the substance of the claim on appeal.

Further, while Movant argues he was reluctant to plead guilty, our review of the
plea transcript shows Movant Was adamant that he wanted to plead guilty despite
maintaining his iiinocence, and the plea court questioned him at length about his decision.
Movant knew of all the evidence against hiin_although he disagreed with it, and lie
testified that he pled guilty as part of a strategic gamble to receive a lesser sentence than
the State’s recommendation of 15 years. Where the record shows a movant Would have
pled guilty regardless of plea counsel’s alleged ineffective assistance, the movant is unable
to show prejudice from the asserted ineffectiveness B Er_vin, 423 S.W.Bd at 793 (citing
Voyles v. State, 272 S.W.3d 921, 924 (Mo. App. S.D. 2009)).

The motion court did not clearly err in denying l\/lovant’s request for post-

conviction relief after an evidentiary hearing Rule 24.035(11); Weeks, 140 S.W.3d at 44.

 

Point denied.
Conclusion

The judgment of the motion court is affirmed

idath

Gaw&‘tner, Jr.,\iiudge
Jaines M. Dowd, P. J., concurs.
Kurt S. Odenwald, I., concurs.

 

