                     In the Missouri Court of Appeals
                             Eastern District
                                      DIVISION THREE

JOSHUA HACKMAN,                              )       No. ED103334
                                             )
       Appellant,                            )       Appeal from the Circuit Court of
                                             )       St. Charles County, Missouri
vs.                                          )       1511-CC00004
                                             )
STATE OF MISSOURI,                           )       Honorable Ted House
                                             )
       Respondent.                           )       Filed: June 28, 2016

                                           OPINION

       Pursuant to an agreement with the State, Joshua Hackman entered an Alford plea 1 to first-

degree robbery arising out of an incident in which Hackman acted as a lookout while his

accomplices stole money and alcohol from a liquor store while displaying and threatening the use

of what appeared to be a deadly weapon in St. Charles County. Hackman was sentenced to ten

years’ imprisonment but his sentence was suspended and he was placed on five years’ probation.

While on probation Hackman was arrested and charged with drugs and weapons violations in the

City of St. Louis, and the State moved to revoke Hackman’s probation. Following an evidentiary

hearing, the trial court revoked Hackman’s probation and ordered execution of the previously

imposed ten-year sentence.




1
 Pursuant to an Alford guilty plea, the defendant does not admit the acts of the crime but admits
that in light of the State’s evidence against him, he is likely to be found guilty beyond a
reasonable doubt at trial. See North Carolina v. Alford, 400 U.S. 25, 37 (1970).
          Hackman filed a Rule 24.035 2 motion for post-conviction relief alleging that his trial

counsel was ineffective for failing to advise him prior to his plea that if his probation was revoked

he might not receive credit towards his sentence for the time he spent on probation. The motion

court denied the motion without an evidentiary hearing, finding that since granting credit for time

served on probation is discretionary with the trial court, it is a collateral consequence of a guilty

plea and plea counsel was not required to advise Hackman on the issue. Because we do not find

the motion court’s findings and conclusions to be clearly erroneous, we affirm.

                                                Law

          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. Taylor v.

State, 456 S.W.3d 528, 533 (Mo.App.E.D. 2015) (citing Woolridge v. State, 239 S.W.3d 151, 153-

54 (Mo.App.E.D. 2007)). Findings and conclusions are clearly erroneous if, after a review of the

entire record, we are left with the definite and firm impression that a mistake has been made.

Taylor, 456 S.W.3d at 533. We presume that the motion court’s findings are correct. Id. After a

guilty plea, our review is limited to a determination of whether the movant’s plea was knowing

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

Moreover, an Alford plea is treated the same as a guilty plea. O’Neal v. State, 236 S.W.3d 91, 95

(Mo.App.E.D. 2007) (citing Nguyen v. State, 184 S.W.3d 149, 152 (Mo.App.W.D. 2006)).

          An evidentiary hearing is not required on every Rule 24.035 motion. See Rule 24.035(h).

To be entitled to an evidentiary hearing, a movant must: (1) allege facts, not conclusions, which if

true would warrant relief; (2) these facts 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



2
    All Rule citations are to the Missouri Supreme Court Rules (2016) unless otherwise indicated.
                                                  2
v. State, 103 S.W.3d 765, 769 (Mo.banc 2003) (citing State v. Brooks, 960 S.W.2d 479, 497

(Mo.banc 1997)). Where a movant alleges ineffective assistance of counsel following a guilty plea

and an examination of the guilty plea proceedings directly refute that movant’s plea was

involuntary, movant is not entitled to an evidentiary hearing. Taylor, 456 S.W.3d at 533.

       The two-pronged Strickland test is applied in cases where a movant claims post-conviction

relief based upon ineffective assistance of trial counsel. See Strickland v. Washington, 466 U.S.

668, 687 (1984); Zink v. State, 278 S.W.3d 170, 175-76 (Mo.banc 2009). The movant must prove

the following two elements by a preponderance of the evidence: (1) that counsel’s performance

did not conform to the degree of skill and diligence of a reasonably competent attorney; and (2)

that as a result thereof, the movant was prejudiced. Zink, 278 S.W.3d at 175. The movant must

overcome a strong presumption that counsel’s performance was reasonable and effective to meet

the first prong. Id. at 176. To satisfy the second prong, the movant must show that there was a

reasonable probability that, but for counsel’s alleged errors, the outcome would have been

different. Id.

                                            Discussion

       A. The motion court did not clearly err in denying Hackman’s ineffective assistance

           claim because it is not ineffective assistance of counsel to fail to advise regarding

           collateral issues such as possible probationary credits prior to a guilty plea.

       Hackman claims that prior to his guilty plea his counsel erroneously failed to advise him

that if he violated his probation, he might not get credit for the time he was on probation. We deny

this point because Hackman’s factual allegations do not warrant relief. Plea counsel had no duty

to inform Hackman that he may not receive credit for the time he was on probation if he violated

his probation and his sentence was imposed, and we decline Hackman’s invitation to ignore current



                                                 3
Missouri law on ineffective assistance of plea counsel claims regarding advising about the

collateral consequences of pleading guilty.          See Voegtlin v. State, 464 S.W.3d 544, 555

(Mo.App.E.D. 2015) (noting that the well-established principle that plea counsel is not ineffective

for failing to inform a defendant of the collateral consequences of a guilty plea is unaffected by

Padilla v. Kentucky, 559 U.S. 356 (2010)).

          While plea counsel has a duty to discuss the possible consequences involved in a guilty

plea, plea counsel’s obligation is limited to informing a defendant of the direct consequences of

guilty plea, not collateral consequences. Haddock v. State, 425 S.W.3d 186, 189-90 (Mo.App.E.D.

2014). Direct consequences are those which definitely, immediately, and often automatically

follow the entry of a guilty plea. Barmore v. State, 117 S.W.3d 113, 115 (Mo.App.E.D. 2002).

Examples of direct consequences of a guilty plea are set forth in Rule 24.02(b) and include the

range of possible punishment a defendant faces, that the defendant has the right to a jury trial, and

that by pleading guilty, the defendant waives the right to a trial. 3 Brown v. State, 67 S.W.3d 708,

711 (Mo.App.E.D. 2002).



3
    Rule 24.02(b) sets forth:

          (b) Advice to Defendant. Except as provided by Rule 31.03, before accepting a
          plea of guilty, the court must address the defendant personally in open court, and
          inform defendant of, and determine that defendant understands, the following:

          1. The nature of the charge to which the plea is offered, the mandatory minimum
             penalty provided by law, if any, and the maximum possible penalty provided
             by law; and

          2. If the defendant is not represented by an attorney, that defendant has the right
             to be represented by an attorney at every stage of the proceedings against
             defendant and, if necessary, one will be appointed to represent defendant; and

          3. That defendant has the right to plead not guilty or to persist in that plea if it
             has already been made, and that defendant has the right to be tried by a jury
             and at that trial has the right to assistance of counsel, the right to confront and
                                                    4
         Plea counsel has no duty to inform a defendant of the collateral consequences of a guilty

plea. Haddock, 425 S.W.3d at 190. Examples of collateral consequences of a guilty plea include

parole eligibility, the right of a crime victim or family member of victim to be heard at sentencing,

and sentencing after probation revocation. Brown, 67 S.W.2d 710 n.1. Accordingly, the failure

to advise a defendant regarding collateral consequences of a guilty plea cannot rise to the level of

ineffective assistance of counsel. Id.

         In Barmore, this Court held that re-sentencing following a probation violation was a

collateral consequence of a guilty plea. Barmore, 117 S.W.3d at 115. In Brown, this Court held

that the probation provisions of section 559.115.2 which permit the circuit court to grant probation

to a defendant anytime up to 120 days after a defendant has been delivered to the Missouri

Department of Corrections are collateral consequences of a guilty plea. Brown, 67 S.W.3d at 711.

In Haddock, this Court held that because the probation provisions of section 559.115 are collateral

consequences of a guilty plea, plea counsel was not required to advise the defendant that he could

be denied probation if he failed to successfully complete the shock incarceration program.

Haddock, 425 S.W3d at 191.

         At issue here is whether the probation provision of section 559.100.2 4 is a direct or

collateral consequence of a guilty plea. Section 559.100.2 provides that the circuit court may, in

its discretion, credit any period of probation as time served on a sentence, but a defendant is not

entitled to credit for time served on probation. Accordingly, section 559.100.2 does not definitely,



             cross-examine witnesses against defendant, and the right not to be compelled
             to incriminate himself or herself; and

         4. That if defendant pleads guilty there will not be a further trial of any kind, so
            that by pleading guilty defendant waives the right to a trial.
4
    All citations to section 559.100 are to RSMo. Supp. (2014).
                                                   5
immediately, or automatically follow the entry of a guilty plea, and it is therefore a collateral

consequence of a guilty plea about which plea counsel need not have advised Hackman. See

Brown, 67 S.w.3d at 711; Barmore, 117 S.W.3d at 115; Haddock, 425 S.W.3d at 190. In fact, the

court did not even consider whether to grant Hackman any probationary credit until Hackman

violated his probation. Barmore, 117 S.W.3d at 115; Haddock, 425 S.W.3d at 190. Plea counsel

had no obligation to inform Hackman that he may or may not receive credit for the time he spent

on probation if he violated his probation and was re-sentenced, and this alleged failure does not

render Hackman’s guilty plea involuntary. Barmore, 117 S.W.3d at 116; Haddock, 425 S.W.3d

at 190-91. Point denied.

                                          Conclusion

       The motion court’s judgment is affirmed.




                                                           James M. Dowd, Judge

Robert M. Clayton III, P.J., and
Lawrence E. Mooney, J., concur.




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