 

In the Missouri Court ot` Appeals
Eastern District

DIVISION FOUR
TERRY 'l`. WATSON, ) ED103245
)
Appellant, ) Appeal from the Circuit Court
) ofthe City of St. Louis
v_ ) 1322-CC00457
)
STATE OF MISSOURI, ) Honorable Bryan L. Hettenbaeh
)
Respondent. ) Fiied: September 13, 2016

Introduction
Terry Watson (Movant) appeals the judgment of the motion court denying his
motion for post-conviction relief under Rule 29.15l 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 aetion, and the trial court sentenced Movant to a total of 18

 

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

 

 

years’ imprisonment This 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 ll, 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 of Movant’s claims. Movant filed a motion to amend the judgment
under Missouri Rule of Civil Procedure 78.07(c), 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 Movant’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 f`or post-conviction relief is
“limited to a determination of whether the findings of fact and conclusions of law are

clearly erroneous.” Hicl<ey v. State, 328 S.W.Bd 225, 227 (Mo. App. E.D. 2010) (citing

Rule 29.15(k)). 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 tile an amended motion, including a 30-day
extension, from counsel’s entry of appearance Under the facts here and Missouri Rule of Civil Procedure
44.0l(a), with an extension the ruie allowed until June 19, 2013, to file an amended motion. Though
Movant's post~conviction counsel requested a tlS-day extension and the parties disagree about the meaning
of the trial coult’s order granting it; because the amended motion was filed on May 30, 2013, and because
the trial conn accepted and ruled upon the motion, we consider it timely. _S_§§ Federhof`cr v. State, 462 S.W.3d
838, 841 (Mo. App. E.D` 2015) (citing cases) (amended motion considered timer 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 rule); 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 ru|e).

3 General|y, claims of abandonment are addressed by means of a motion to reopen the Rule 29. i 5 proceeding
§;e_e Gehrke v. State, 280 S.W.Ed 54, 57 n.3 (Mo. banc 2009) (citing Crenshaw v. State, 266 S.W.3d 25'7, 259
(Mo. banc 2008)).

 

of the record, this Court is left with a definite and firm impression that a mistake has been
made.” § 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 reeord; and (3) the matters complained of resulted in prejudice to the
movant. Teei' 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 iiability, 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 skill, care, and diligence of a reasonably competent
attorney; and that Movant was prejudiced in that but for counsel’s errors, the outcome
wouid have been different Williams, 367 S.W.3d 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 E;ye, 132 S.Ct. at
1409-10).

Here, Movant’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 inisadvised 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, l\/lovant 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 10-year plea offer was for all of the charges, rather

 

4 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 him. Whi|e Rule 29. 15 formerly required a movant to verify an amended
motion before filing, the Missouri Supreme Court 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 tile an amended motion in a timely manner, and
the coult has repeatedly declined to expand its scope. Barnett v. State, 103 S.W.3d 765, 774 (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 S_ee 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 judgmentl Moreover, here, because Movant will have
a hearing on the claims of ineffective assistance of counsel contained in his amended motion regarding his
trial counsel’s advice as it relates to the plea offer by the State, he will have an opportunity to clarify to the
motion court exactly what trial counse|’s advice was.

4

 

than just first-degree robbery. However, the motion as a Whole implies that the lO-year
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, sep 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. Any
clarification needed regarding the specific offer would come at an evidentiary hearing.
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 rnisadvised him in these respects.5 in 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
convictions and familiarity with the legal system,6 the record here did not conclusively
refute Movant’s claims that his trial counsel was ineffective, and that he was prejudiced

thereby. Thus, Movant was entitled to an evidentiary hearing on his claims. Points granted

 

5 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 elenrents 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 hinr. Thus, this portion ofMovant’s argument is without merit.

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

5

 

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
prejudice We reverse the motion court’s judgment on Movant’s 29. 15 motion and remand

for an evidentiary hearing on these claims.

 

 

James M. Dowd, P.J., concurs.
Kurt S. Odenwald, J., concurs.

 

