                                                    In the
                               Missouri Court of Appeals
                                          Western District
 JASON A. KAESSER,                                        )
                                                          )
                     Appellant,                           )    WD83216
                                                          )
 v.                                                       )    OPINION FILED: August 25, 2020
                                                          )
 STATE OF MISSOURI,                                       )
                                                          )
                    Respondent.                           )

                  Appeal from the Circuit Court of Henry County, Missouri
                            The Honorable James K. Journey, Judge

Before Division Three: Gary D. Witt, Presiding Judge, Lisa White Hardwick, Judge and
                            Thomas N. Chapman, Judge


        Jason A. Kaesser ("Kaesser") appeals the judgment of the Circuit Court of Henry

County, Missouri ("motion court"), denying his Rule 24.0351 motion for post-conviction

relief without an evidentiary hearing. Kaesser pleaded guilty to one count of assault of a

corrections officer in the second degree, Section 565.0822 Kaesser contends that the




        1
           All rule references are to Missouri Supreme Court Rules (2019).
        2
           Section 565.082 of the Missouri Revised Statutes has been repealed but was in effect on July 13, 2011,
the date of the alleged incident giving rise to the charge. A similar version of the statute was in effect on
October 18, 2012, the date of Kaesser's guilty plea and sentencing.
motion court erred in denying his motion without an evidentiary hearing because his

motion alleges facts which, if true, showed that his guilty plea was involuntary. We affirm.

                                 Factual and Procedural Background

       On July 13, 2011 Kaesser was incarcerated in the Henry County jail on unrelated

charges arising out of Jasper County. Kaesser repeatedly pressed the emergency button in

the cellblock. Officer Travis Heard ("Officer Heard") and two other officers entered

Kaesser's cell. While Officer Heard was attempting to handcuff Kaesser, he resisted, called

Officer Heard some obscene names, and several times attempted to strike Officer Heard

with his forehead, commonly referred to as a "head-butt." The three officers were

witnesses to these events.

       On October 18, 2012, Kaesser entered an Alford3 plea to one count of assaulting a

corrections officer in the second degree. Kaesser did not admit guilt and acknowledged at

his plea hearing that his plea counsel advised him that counsel did not believe there was

sufficient evidence for Kaesser to be found guilty if he were to go to trial. Plea counsel

recommended that Kaesser seek a bench trial if he went to trial because of his criminal

record. At the plea hearing Kaesser testified he would have liked to have gone to trial on

the charge, but did not want to take the risk of being found guilty due to the disparity

between his potential sentence if he were found guilty and that being offered in the plea

agreement.




       3
           North Carolina v. Alford, 400 U.S. 25 (1970).

                                                           2
         As part of his plea, the State agreed to recommend a sentence of six years

imprisonment, consecutive to the sentence Kaesser was already serving, but that the

sentence on this matter would be suspended, and Kaesser would be placed on a five-year

term of probation. If Kaesser had not pleaded guilty but was found guilty following a trial,

he could have received a sentence of up to fifteen years, consecutive to the sentence he was

already serving, due to his criminal history.4 Kaesser's original counsel (who had been

appointed prior to Kaesser retaining plea counsel) advised him that a six-year sentence

"running wild"5 was the best plea offer that Kaesser would receive. Kaesser thought that

accepting the plea offer was the best decision for his family, despite his plea counsel's

advice and recommendation.

         On March 19, 2015, Kaesser's probation was revoked, and his six-year sentence was

executed. Kaesser filed a pro-se motion for post-conviction relief on May 14, 2015.

Appointed counsel filed an amended motion on December 16, 2015. In his amended

motion, Kaesser claims that his guilty plea was "not entered knowingly, intelligently, and

voluntarily, because it was induced by fear that if he took his case to trial, he would be

convicted and sentenced to a much longer term of years that the state was offering in

exchange for is [Alford] plea." Kaesser alleged that he would not have pleaded guilty if he

had not been "intimidated" by the advice his prior public defender gave him (about six-

years being the best offer he would receive) before he retained his private plea counsel.


         4
           At the time of the plea hearing, Kaesser was also participating in a long-term treatment program for
substance abuse, and was due to be released within a year if he was successful in completing the program. Had
Kaesser been found guilty and received a longer sentence, it would have affected the release date of his current
sentence. (L.F. Doc. 11, p. 16).
         5
           A phrase indicating a prison sentence that is consecutive to another sentence.

                                                         3
       On August 13, 2019, the motion court issued findings of fact and conclusions of law

denying Kaesser's motion for postconviction relief without holding an evidentiary hearing.

Kaesser appeals.

                                   Standard of Review

       This court's review of the denial of a Rule 24.035 motion "is limited to a

determination of whether the motion court's findings of fact and conclusions of law are

clearly erroneous." Garris v. State, 389 S.W.3d 648, 650 (Mo. banc 2012) (quoting Cooper

v. State, 356 S.W.3d 148, 152 (Mo. banc 2011)). We presume the motion court's rulings

are correct unless we are "left with the definite and firm impression that a mistake has been

made." Davis v. State, 486 S.W.3d 898, 905 (Mo. banc 2016). "The appellant has the

burden of proving error by a preponderance of the evidence." Westergaard v. State, 436

S.W.3d 593, 597 (Mo. App. E.D. 2014).

                                        Discussion

       In a single point on appeal, Kaesser argues the motion court clearly erred in

overruling his 24.035 motion without an evidentiary hearing. Specifically, Kaesser claims

that he pleaded facts, not conclusively refuted by the record, showing that his first

(appointed) counsel was constitutionally ineffective in telling Kaesser that a six-year

sentence, "running wild," was the best plea offer that he would receive, and that this,

combined with his fear of a much longer sentence if he went to trial, coerced Kaesser into

pleading guilty unknowingly and involuntarily.

       When a criminal defendant pleads guilty, a "claim of ineffective assistance of

counsel is immaterial except to the extent it impinges upon the voluntariness and

                                             4
knowledge with which the guilty plea was made." Roberts v. State, 276 S.W.3d 833, 836

(Mo. banc 2009) (internal quotations omitted). To establish ineffective assistance of

counsel, a movant must show that: (1) his plea counsel’s performance failed to conform

to the degree of skill, care, an diligence of a reasonably competent attorney under similar

circumstances; and (2) the movant was prejudiced by that failure. Id.; See also Strickland

v. Washington, 466 U.S. 668, 687 (1984). A movant alleging ineffective assistance of

counsel after a guilty plea has the burden of showing that a "serious dereliction of duty that

materially affected his substantial rights and further show that his guilty plea was not an

intelligent or knowing act." Meadors v. State, 571 S.W.3d 207, 211 (Mo. App. E.D. 2019).

"A plea of guilty is not made voluntarily if the defendant is misled, or is induced to plead

guilty by fraud or mistake, by misapprehension, fear, persuasion, or the holding out of

hopes which prove to be false or ill founded." Roberts, 276 S.W.3d at 836 (internal

quotation omitted). To establish prejudice, the movant "must show that but for counsel’s

errors, he would not have pleaded guilty but would have insisted on going to trial." Bastain

v. State, 560 S.W.3d 894, 896-97 (Mo. App. E.D. 2018).

       An evidentiary hearing is not warranted for every 24.035 motion, especially where

the motion and files of the case conclusively show that the movant is not entitled to relief.

Ban v. State, 554 S.W.3d 541, 544 (Mo. App. E.D. 2018); Rule 24.035(h). In order to be

entitled to an evidentiary hearing, the movant must: (1) allege facts, not conclusions,

warranting relief; (2) allege facts that are not refuted by the files and records of the case;

and (3) have suffered prejudice resulting from the alleged facts. Roberts, 276 S.W.3d at

835.

                                              5
       In this case, Kaesser's claims that he was improperly coerced by his first counsel

into pleading guilty are conclusively refuted by the record. The only allegation Kaesser

makes as to any representation his first counsel made to him is that counsel told him that a

six-year sentence, "running wild," was the best plea offer that Kaesser would receive.

Kaesser has not shown that this representation was untrue. He did, in fact, receive a six-

year sentence for the charge of assaulting a corrections officer following his guilty plea.

"An attorney is not coercing his or her client by fully advising the client of the range of

punishments available to the court and offering legal advice to the client based on the

attorney's experiences." State v. Knox, 553 S.W.3d 386, 396 (Mo. App. W.D. 2018).

Appointed counsel's advice was not mistaken or false, and counsel's communication of the

possible sentence does not constitute coercion even if the defendant may find that potential

outcome frightening. Robertson v. State, 502 S.W.3d 32, 36 (Mo. App. W.D. 2016).

       Kaesser does allege that he accepted the guilty plea because he was afraid he would

receive a much longer sentence if he went to trial and was found guilty, but he does not

allege that either his first counsel or his second (retained) plea counsel did anything

improper to cause unreasonable fear. On the contrary, Kaesser's retained plea counsel

advised Kaesser that he did not believe the State had sufficient evidence to secure a

conviction if Kaesser went to trial. That Kaesser did risk the possibility of receiving a

fifteen-year sentence if he were to have been found guilty was due to Kaesser's own

criminal history which rendered him a persistent offender. The State's offer of six years,

with suspended execution in favor of probation, probably reflected the State's perceived

weakness of the evidence against him.

                                             6
      Kaesser's brief also alleges that he did not believe his plea counsel was ready for

trial, because "Kaesser had not seen all the reports in the case and neither attorney had

interviewed or investigated all of the correctional officers involved in the incident."

Although this allegation is not part of Kaesser's point on appeal, this allegation is also

conclusively refuted by the record. At Kaesser's Alford plea hearing, the following

testimony was presented.

      Plea Counsel: Mr. Kaesser, I've been your attorney for approximately two
      months. Is that a fair statement?

      Kaesser: Yes, your Honor—sir.

      Counsel: And during that period of time, I've had an opportunity not only to
      provide you with the copy of the reports, but for you and I to discuss at length
      on many different occasions over the telephone regarding the facts of the
      case; is that correct?

      Kaesser: Definitely.

      Counsel: And you have indicated to me that you did not in any way, shape,
      or form attempt to or intend to cause any injury to any of the jailers at the
      Henry County Sherriff's Department; is that correct?

      Kaesser: That's correct.

      Counsel: And you and I have went over both of the statutes, one is 565.083,
      which requires that you knowingly cause or attempt to cause physical contact
      with a corrections officer—

      Kaesser: Uh-huh.

      Counsel: --and in order for you to be found guilty of a misdemeanor.
      Correct?

      Kaesser: Yes.




                                             7
      Counsel: An that’s a Class A misdemeanor. And then there's also—you've
      been charged with the Class C felony for which you’re charge[d]; is that
      correct?

      Kaesser: Yes.

      Counsel: You've had an opportunity to view all of the reports that I mailed
      you shortly after I received them and go over those with me; is that true?

      Kaesser: Yes.

      Counsel: And you understand that Officer Heard indicates that he felt that
      you were acting in an aggressive manner before he could completely cuff
      you while you were inside your cell; is that correct?

      Kaesser: Yes.

      Counsel: With respect to the other two officers, Officer Thomas, he indicates
      the same thing, and Officer—or Jailer Nikie Thenner (phonetic spelling)
      indicates that you made a swift [gesture] as if you were trying to pull away
      from Officer Heard.

      Kaesser: Yes.

      Counsel: Do you understand that it’s the State's burden to prove beyond a
      reasonable doubt all of the elements, and that is that you attempted to cause
      physical injury, not just contact, but injury, in order for you to be found guilty
      of the Class C felony as you’re charged?

      Kaesser: Yes.

      Counsel: Do you understand that I've advised you that I do not believe, at
      least in my opinion, that there were sufficient facts or evidence for you to be
      found guilty if we were to have a trial by judge or have a trial by jury?

      Kaesser: Several times.

      Kaesser's own plea hearing testimony refutes his claims. He acknowledged having

received the reports, having discussed them with his counsel, having knowledge as to what

the evidence against him would be, and having been advised by his counsel that counsel


                                              8
did not believe the State had sufficient evidence to prove the case against him. Clearly,

Kaesser does not allege any facts, other than the plea offer itself, that would have induced

him into pleading guilty. Indeed, Kaesser did not challenge the voluntariness of his plea

until he violated the terms of his probation, his probation was thereby revoked, and his

sentence was executed. His claim that his plea was involuntary after he received the benefit

of the plea agreement (the probation) is not well taken.

                                       Conclusion

       Because Kaesser does not show that the motion court clearly erred in denying his

Rule 24.053 motion for post-conviction relief without an evidentiary hearing, the judgment

of the motion court is affirmed.




                                          __________________________________
                                          Gary D. Witt, Judge

All concur




                                             9
