                                   Missouri Court of Appeals
                                               Southern District
                                                   Division One


HARRY L. BROOKE,                                       )
                                                       )
           Movant-Appellant,                           )
                                                       )
vs.                                                    )       No. SD35719
                                                       )
STATE OF MISSOURI,                                     )       Filed September 3, 2019
                                                       )
           Respondent-Respondent.                      )

                    APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                                        Honorable Thomas E. Mountjoy

AFFIRMED

           Harry L. Brooke (“Movant”) was charged with one count of the unlawful use of a

weapon for knowingly discharging a firearm at an inhabitable structure, a class B felony that

carries a mandatory fifteen-year term of imprisonment. See sections 558.011.1(2), 571.030.1(9),

and 571.030.9(1). 1 The State offered to amend the charge against him to a class D felony and

recommend a four-year term of imprisonment without any consideration of probation. Because

it did not provide an opportunity for a grant of probation, Movant rejected this offer. Instead, he

entered an “open” plea of guilty to the offense charged in order to provide himself an opportunity




1
    All statutory references are to RSMo Cum.Supp. 2014, and all rule references are to Missouri Court Rules (2019).

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to seek probation. The trial court sentenced him to the mandatory fifteen-year term of

imprisonment but denied his requested grant of probation.

       Thereafter, Movant timely sought post-conviction relief (“PCR”), see Rule 24.035, which

the motion court denied following an evidentiary hearing. Movant appeals the motion court’s

judgment, raising a single point alleging that he received ineffective assistance of counsel.

Finding no clear error in the motion court’s judgment as claimed, we affirm.

                              Factual and Procedural Background

       At Movant’s plea hearing during his testimony and when directed by the plea court to

“state the range of punishment,” the prosecuting attorney responded stating,

       Per the subsection that this count is filed under, this offense can carry a range of
       punishment of the minimum -- or the maximum term of years for a Class B
       felony, which is fifteen years in the Missouri Department of Corrections. While
       probation can be granted on that count, the probation backup sentence is
       required to be the maximum on the Class B felony, the fifteen years.

(Emphasis added). Nothing else was said about the range of punishment during the plea

hearing.

       At his subsequent sentencing hearing, after an extensive recitation of several factors

weighing in his favor, Movant requested that “the mandatory fifteen-year sentence be suspended

and that he be given a chance at probation.” (Emphasis added). The sentencing court, however,

ultimately agreed with the State that the nature of Movant’s offense weighed against granting

probation. The sentencing court, noting it had no discretion as to the length of the imprisonment

term to impose, sentenced Movant to serve the term mandated by statute—fifteen years.

       In his timely-filed amended PCR motion, Movant alleged, inter alia, that he received

ineffective assistance of counsel because his counsel, Lindsey Phoenix, “failed to inform Movant

of the statutory mandatory minimum sentence of fifteen years he would be sentenced to if he

plead [sic] guilty and insisted she could get him on probation if he pled guilty to the original

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charge.” He alleged that he was prejudiced because “had he known the offense carried a

mandatory minimum sentence of fifteen years and that everyone convicted of that charge was

sentenced to prison he would have pled guilty to the first offer presented by the [S]tate.”

       Phoenix testified at Movant’s evidentiary hearing on his PCR motion that during her

representation of Movant she did not advise him that he faced a mandatory imprisonment term of

fifteen years. She stated, “I thought, when I talked to him, that it was five to fifteen. That’s what

I told him every time I talked to him.” Phoenix further testified that the State had made a plea

offer in which it would amend the charge against Movant to a class D felony and recommend

four years’ imprisonment. It was her belief that

       95 percent of [Movant’s] decision to reject that was based on my advice to him. I
       thoroughly believed that he was worthy of probation. I thought the facts of the
       case were worthy of probation. I thought what he had done was worthier of
       probation. He -- I think he trusted me entirely, and I told him I really thought that
       that was what would happen.

According to Phoenix, she did not realize that she was mistaken about the range of punishment

Movant could receive until the sentencing court announced Movant’s sentence. Phoenix went on

to characterize her advice regarding Movant’s possible range of punishment as “the biggest

mistake that I’ve ever made in my career[.]”

       Movant was the only other witness to testify at the evidentiary hearing. His testimony

was in line with the previously recited testimony provided by Phoenix. In addition, he testified

that securing probation was important to him because he “really didn’t want to go to prison.” On

cross-examination, Movant stated that he wanted to receive a fifteen-year sentence with

probation granted and that Phoenix never promised him that he would receive probation.

       The motion court, which was also the plea and sentencing court, denied Movant post-

conviction relief. The motion court did “not find as credible” Movant’s claim that he rejected

the State’s offer and pleaded guilty due to confusion about the sentence he was facing. It found,
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instead, that Movant’s plea was made voluntarily, knowingly, and intelligently, noting, among

other things, the following:

         Movant’s claim that he was not aware of the range of punishment at the time of
         the plea is disingenuous.[ 2] First, he was advised that the range of punishment
         was 15 years at the time of the plea by the prosecuting attorney. No other term of
         years was mentioned. Movant testified at the hearing on this post-conviction
         relief action that he declined the 4 year plea offer on an amended charge because
         it required that he agree to go to prison, and he wanted to have the opportunity to
         ask for probation. He specifically stated that his decision was based [on] the fact
         that he “really didn’t want to” go to prison. Movant agreed that he wanted his
         counsel to ask for him to be given a 15 year sentence in the Department of
         Corrections with probation granted. He agreed that he wanted that sentence at the
         time of his plea. Movant clearly understood and appreciated that he faced the
         possibility of going to the Department of Corrections for a term of 15 years.

(Record citation omitted).

         The motion court further found that, in light of Movant’s testimony that he did not want

to go to prison but rather wanted to seek a fifteen-year sentence with probation, Movant was also

“not able to demonstrate that he was prejudiced” by Phoenix’ alleged ineffective assistance. It

reasoned that

         [a]t the hearing, Movant testified that he rejected the plea agreement on an
         amended charge not because he sought a lower term of years, but because he
         wanted to take a higher term of years and have an opportunity to request

2
 The record reflects that Movant was not represented by Phoenix at his plea hearing, but rather, by attorney Stuart
P. Huffman. Among other inquiries during his plea hearing, the court inquired of Movant:

         THE COURT: Now, the charge in the case is the Class B felony of unlawful use of a weapon. Is
         that the charge you intend to enter a plea of guilty to?
         THE DEFENDANT: Yes, sir.
         THE COURT: Have you had enough time to talk with Mr. Huffman about your case in general?
         THE DEFENDANT: Yes, sir.
         THE COURT: Have you had enough time to talk to him about your decision to plead guilty
         in the case?
         THE DEFENDANT: Yes, sir.
         THE COURT: Have you told Mr. Huffman everything he needs to know about your case so he
         can give you proper advice?
         THE DEFENDANT: Yes, sir.
         THE COURT: And are you satisfied with his services for you, as your attorney?
         THE DEFENDANT: Yes, sir.

Movant asserted no ineffective assistance claim in his amended PCR motion related to the legal advice provided to
him by Huffman.

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       probation. Movant testified that he wanted his attorney to ask for a 15 year
       probation granted sentence, which he also testified he knew was the maximum
       range of punishment. His attorney did do that. Movant’s testimony proves that
       he was fully aware that by rejecting the plea deal he faced a range of punishment
       that might result in his going to prison on a 15 year sentence. He testified that he
       made his decision based solely on the issue of probation. The sentence he was
       requesting was not outside the actual range of punishment of the offense he pled
       guilty to, and the sentence of 15 years that was imposed and executed was not
       outside the range of punishment he stated at the post-conviction hearing he
       thought was available to the court. Regardless of whether he understood the
       range of punishment to be 5-15 years or a straight 15 years, his decision about
       whether to try for 15 years with probation granted and reject the plea offer that
       required a 4 year sentence logically would have been the same based on his
       testimony about how the decision was made.

       Movant timely appeals the motion court’s denial of relief. Abandoning his claim that

Phoenix “insisted she could get him on probation if he pled guilty to the original charge[,]”

Movant asserts in his sole point relied on that the motion court clearly erred in denying his PCR

motion because he “established that he received ineffective assistance of guilty plea counsel in

that [Phoenix] failed to inform [him], prior to his guilty plea, that by statute the only sentence he

could possibly receive was fifteen years[’] imprisonment” and that “[h]ad [he] been properly

informed about the mandatory sentence he would have accepted the state’s prior offer.”

                                        Standard of Review

       Our review is limited to a determination of whether the motion court’s findings and

conclusions are clearly erroneous. Rule 24.035(k). “The motion court’s findings and

conclusions are clearly erroneous only if, after review of the record, the appellate court is left

with the definite and firm impression that a mistake has been made.” Roberts v. State, 276

S.W.3d 833, 835 (Mo. banc 2009). It is Movant’s burden to prove his claims by a preponderance

of the evidence. Rule 24.035(i). We presume that the motion court’s findings and conclusions

are correct, Butts v. State, 85 S.W.3d 132, 134 (Mo.App. 2002), and defer to the motion court on

issues of credibility. Clay v. State, 297 S.W.3d 122, 124 (Mo.App. 2009).


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                                            Discussion

       Where a defendant is offered a plea, he is entitled to effective assistance of counsel in

determining whether to accept that plea. Lafler v. Cooper, 566 U.S. 156, 168 (2012); Missouri

v. Frye, 566 U.S. 134, 144 (2012)). Where there is a plea of guilty, as there was in this case, a

claim of ineffective assistance of counsel is immaterial “except to the extent that the conduct

affected the voluntariness and knowledge with which the plea was made.” Worthington v. State,

166 S.W.3d 566, 573 (Mo. banc 2005).

       As with other claims of ineffective assistance of counsel, the test for determining whether

counsel was ineffective during plea negotiations is the two-prong test in Strickland v.

Washington, 466 U.S. 668 (1984). Williams v. State, 367 S.W.3d 652, 655 (Mo.App. 2012)

(citing Lafler and Frye). “Movant must show first, that his counsel’s performance was deficient,

and second, that Movant was prejudiced thereby.” Id. To establish prejudice in this context

where a plea offer has been rejected, Movant must demonstrate “‘a reasonable probability [he]

would have accepted the earlier plea offer had [he] been afforded effective assistance of

counsel,’ and a ‘reasonable probability that neither the prosecution nor the trial court would have

prevented the offer from being accepted or implemented.’” Smith v. State, 443 S.W.3d 730,735

(Mo.App. 2014) (quoting Frye, 566 U.S. at 147–48).

       Here, the motion court found that Movant’s claim failed because he did not establish (1)

that Phoenix’s alleged ineffective representation prevented him from entering a voluntary,

knowing, and intelligent plea of guilty; and (2) that he would have accepted the State’s plea offer

if not for Phoenix’s alleged ineffective representation. The latter finding, which alone is

sufficient to deny post-conviction relief, was not clearly erroneous and, therefore, we need not

address the former finding.



                                                 6
       This court addressed a situation similar to the one here in Noland v. State, 413 S.W.3d

684 (Mo.App. 2013). The crime Noland was charged with violating “carried a mandatory life

sentence,” but counsel misadvised him that “the punishment range was 10 to 30 years or life,

without probation or parole.” Id. at 685. Noland “rejected all plea offers and insisted that he

was innocent.” Id. at 685. The motion court found that, in light of Noland’s previous

representations to his counsel and to the trial court, his testimony at the post-conviction

evidentiary hearing that he would have accepted a plea offer was not credible. Id. at 686.

Recognizing that we defer to such credibility determinations, this court ruled that the motion

court did not clearly err in finding that Noland proved “no reasonable probability he would have

accepted the plea offer.” Id. (internal quotation marks omitted).

       Here, Movant claimed that he would have accepted the State’s plea offer if not for his

purported misunderstanding about the range of punishment he faced. Like in Noland, however,

the motion court disbelieved Movant, and we defer to that credibility determination. See Clay,

297 S.W.3d at 124. The motion court found credible and relied on Movant’s testimony that he

was seeking probation, which was not included in the State’s plea offer, and was aware that, in

rejecting the State’s plea offer, the result could be a fifteen-year sentence without probation. In

that context, as recognized by the motion court,

       Movant’s disappointment in the outcome of his sentencing may cause him to
       second-guess that decision, but it does not change that the record supports the
       factual finding that he was aware of the 15 year sentence he was facing and was
       simply willing to take a risk on the hopes that his attorney could argue for and
       receive probation on his behalf.

       We are not left, therefore, with a definite and firm impression that the motion court made

a mistake. See Roberts, 276 S.W.3d at 835. “This no-prejudice finding, not clearly erroneous,

justifies affirmance independently.” Noland, 413 S.W.3d at 687. Point denied.



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                                         Decision

      The motion court’s judgment is affirmed.



GARY W. LYNCH, P.J. – OPINION AUTHOR

NANCY STEFFEN RAHMEYER, J. – concurs

WILLIAM W. FRANCIS, JR., J. – concurs




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