                       In the Missouri Court of Appeals
                               Eastern District
                                             DIVISION TWO


    MIA TOWNSEND,                                         )   No. ED103550
                                                          )
           Movant/Appellant,                              )   Appeal from the Circuit Court of
                                                          )   St. Louis County
    vs.                                                   )
                                                          )   Honorable Robert S. Cohen
    STATE OF MISSOURI,                                    )
                                                          )   Filed: August 2, 2016
           Respondent.                                    )

                                                Introduction

          Mia Townsend (Movant) appeals the motion court’s denial, without an evidentiary hearing,

of her Rule 24.0351 amended motion for post-conviction relief. In her sole point relied on, Movant

contends the motion court erred by denying her motion without an evidentiary hearing because

Movant pleaded facts, unrefuted by the record, that her plea counsel was ineffective for promising

she would receive probation in exchange for making a blind2 Alford3 plea. We affirm.

                                           Factual Background

          In June 2012, Movant acted with her mother and co-defendant, Cheryl Moore, and her

sister, Ronnica Moore, in forcibly entering an apartment where Ronnica Moore’s estranged

husband, C.W., and his girlfriend, T.D. were residing. The State alleged that all three women


1
  Unless otherwise noted, all references to Rules are to Missouri Supreme Court Rules (2015).
2
  Movant’s plea was “blind” because there was no plea agreement between Movant and the State.
3
  Alford is in reference to North Carolina v. Alford, 400 U.S. 25 (1970).
kicked and pushed T.D. and that Movant hit her with a metal baseball bat. Movant was charged

with one count of first-degree burglary, a Class B felony, and one count of second-degree assault,

a Class C felony. In October 2013, Movant entered a blind Alford plea to both counts, and the plea

court accepted the plea.

       Movant failed to appear for her sentencing hearing scheduled for November 2013 and a

warrant was issued. Movant then appeared at a later hearing in May 2014. At the hearing, the

sentencing court stated it reviewed a letter in which Movant discussed her expectation of a

probation sentence and her representation issues with plea counsel. After questioning Movant, the

sentencing court found no probable cause for ineffective assistance of counsel and sentenced

Movant to concurrent terms of seven years’ imprisonment on Count I of burglary in the first degree

and seven years on Count II of assault in the second degree.

       In October 2014, Movant filed a pro se Rule 24.035 motion seeking post-conviction relief.

Counsel was appointed and subsequently filed an amended motion alleging that plea counsel’s

performance was ineffective because he told Movant “she would receive the suspended imposition

or suspended execution of sentence and probation in exchange for her blind, Alford plea to the

charges.” The motion court denied the motion without an evidentiary hearing, finding that Movant

“entered her plea knowingly and voluntarily,” because she was “examined extensively on these

issues by the Court during her plea of guilty at the time of sentencing.” This appeal follows.

                                       Standard of Review

       We review the denial of a Rule 24.035 post-conviction motion to determine whether the

findings of fact and conclusions of law of the motion court are clearly erroneous. Rule 24.035(k).

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. Mullins v. State, 262 S.W.3d




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682, 684 (Mo. App. E.D. 2008). In order to be entitled to an evidentiary hearing on a Rule 24.035

motion, the following must be satisfied: (1) Movant must allege facts which, if true, would warrant

relief; (2) the facts must not be refuted by the record; and (3) the matters complained of must have

resulted in prejudice to the movant. Smith v. State, 353 S.W.3d 1, 3 (Mo. App. E.D. 2011). If the

motion court determines the record conclusively establishes the movant is not entitled to relief, the

motion court shall deny an evidentiary hearing. Rule 24.035(h).

                                            Discussion

       In her sole point, Movant contends the motion court clearly erred by denying her motion

for post-conviction relief without an evidentiary hearing because plea counsel was ineffective for

promising that Movant would receive a suspended imposition or suspended execution of sentence

in exchange for her blind Alford plea. She argues plea counsel’s promise rendered her plea

unknowing, involuntary, and unintelligent, and but for plea counsel’s ineffectiveness, there is a

reasonable probability that she would not have pleaded guilty and would have gone to trial. In

response, the State asserts that because Movant failed to appear for her sentencing hearing in

November 2013, the escape rule should apply, waiving her right to appeal. In the alternative, the

State argues the motion court did not clearly err by denying Movant’s motion without an

evidentiary hearing because the record refutes Movant’s claim that counsel rendered ineffective

assistance.

                                          I. Escape Rule

       The State asserts that because Movant failed to appear for her sentencing hearing in

November 2012, Movant waived her right to appeal under the “escape rule.” Movant does not

address the escape rule in her brief.




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       The judicially-created “escape rule” operates to deny the right of appeal to a defendant who

escapes justice. Harvey v. State, 150 S.W.3d 128, 129 (Mo. App. E.D. 2004). “Whether or not to

use the escape rule to dismiss an appellant’s claims of error rests within the sound discretion of

the appellate court.” Id. Although we do not condone Movant’s failure to appear for sentencing,

this Court chooses not to invoke the escape rule. We will address Movant’s point on its merits.

                               II. Ineffective Assistance of Counsel

       Movant contends the motion court clearly erred by denying her motion for post-conviction

relief without an evidentiary hearing because plea counsel was ineffective for promising she would

receive a suspended imposition or suspended execution of sentence in exchange for her blind

Alford plea. She argues plea counsel’s promise rendered her plea unknowing, involuntary, and

unintelligent, and but for plea counsel’s ineffectiveness, there is a reasonable probability that she

would not have pleaded guilty and would have gone to trial. In response, the State argues the

motion court did not clearly err by denying Movant’s motion without an evidentiary hearing

because the record refutes Movant’s claim that counsel rendered ineffective assistance.

       Movant’s testimony at her plea hearing directly refutes her claim that her plea was

involuntary. Even if plea counsel told Movant she would receive probation in exchange for her

guilty plea, the record demonstrates it was not reasonable to believe his alleged statements.

       “To prevail on a claim of ineffective assistance of plea counsel, a movant must show that

(1) counsel’s performance did not conform to the degree of skill, care, and diligence of a

reasonably competent attorney, and (2) counsel’s deficient performance prejudiced the movant.”

Burnett v. State, 311 S.W.3d 810, 817 (Mo. App. E.D. 2009). “When pleading guilty, a defendant

waives any claim that defense counsel was ineffective except to the extent that counsel’s conduct

affected the voluntariness and knowledge with which the plea was made.” Nichols v. State, 409




                                                 4
S.W.3d 566, 569 (Mo. App. E.D. 2013) (citations and quotations omitted). To establish prejudice

where a movant has pleaded guilty, the movant must show that but for counsel’s errors, he would

not have pleaded guilty and would instead have insisted on proceeding to trial. Smith, 353 S.W.3d

at 3. When Movant has alleged that he was misled by plea counsel, he must show that his belief in

his plea counsel’s statements was reasonable. Shackleford v. State, 51 S.W.3d 125, 129 (Mo. App.

W.D. 2001). “A defendant’s mistaken belief about the terms of his sentence can vitiate his sentence

only if it results from a positive representation upon which he is entitled to rely.” Id. Further,

“[m]ere prediction or advice of counsel will not lead to a finding of legal coercion rendering a

guilty plea involuntary.” Nesbitt v. State, 335 S.W.3d 67, 69 (Mo. App. E.D. 2011).

       Movant relies on Brown v. Gammon, 947 S.W.2d 437 (Mo. App. W.D. 1997) and Reed v.

State, 114 S.W.3d 871 (Mo. App. W.D. 2003). In both cases, the Western District vacated the

movant’s conviction, holding the movant had a mistaken but reasonable belief regarding his

sentence. In Brown, the movant’s plea agreement included an offer to place him on probation after

120 days of imprisonment if he completed a substance abuse program while in prison. 947 S.W.2d

at 438. Despite the movant’s completion of the program, the trial court denied his probation. Id.

The Western District determined the movant “was not questioned during sentencing concerning

his understanding of the court’s proposal, and at no time was he advised that the granting of

probation at the end of 120 days was entirely within the discretion of the trial court.” Id. at 441.

The court vacated the movant’s sentence and remanded to the trial court to provide the movant the

opportunity to withdraw his guilty plea. Id.

        In Reed, the court told the movant that if he successfully completed a “boot camp”

program, he would be put on probation. 114 S.W.3d at 873. However, the camp was full, so the

movant was unable to perform his part of the plea bargain and the plea court denied his probation.




                                                 5
Id. The Western District vacated Movant’s conviction, holding that Movant based his guilty plea

on a reasonable mistake of fact and was entitled to rely upon that representation. Id. at 877.

       Unlike in Brown and Reed, in the present case, Movant’s claim that her plea was

involuntary is refuted by the record, as it was unreasonable for Movant to rely on plea counsel’s

alleged statements. During Movant’s plea hearing, the plea court questioned her extensively on

whether she understood her range of punishment if she pleaded guilty. The following exchange

occurred:

       [THE COURT]: Okay….Now, the sentence could be something that you think is

       very acceptable and you like. It might not be exactly what you want. There’s this

       degree of uncertainty in connection with it, but as I understand it, for sure you don’t

       want what the State has recommended, and you’re hoping for a better result…

                                         *       *       *

       [MOVANT]: I don’t really have any questions, but my concern is I thought we

       were entering an Alford plea for five years SIS sentence.

       [THE COURT]: Okay. Well, that’s a good question. I would say….I think [plea

       counsel’s] hoping…that would happen….[plea counsel] knows that that’s not the

       State’s recommendation….So [plea counsel’s] hoping that by a plea of guilty to the

       Court –

       [MOVANT]: Okay.

       [THE COURT]: --that the Court will consider that.

       [MOVANT]: Okay.




                                                 6
       [THE COURT]: And my…response to that is, yes, I would consider that, but I have

       to consider all the options as well. And although that’s what you and [plea counsel]

       are looking for and hoping for, I cannot promise you that now.

       [MOVANT]: Understood.

The plea court accepted Movant’s Alford plea and Movant affirmed it was made “voluntarily and

with an understanding of the nature of the charges.”

       At Movant’s sentencing hearing, the sentencing court discussed a letter written by Movant

which detailed her representation issues with plea counsel. Regarding plea counsel’s performance,

Movant testified as follows:

       [THE COURT]: Did you have enough time to talk to [plea counsel] before you

       entered your plea of guilty?

       [MOVANT]: Yes.

       [THE COURT]: Did he answer your questions to your satisfaction?

       [MOVANT]: Yes, sir.

       [THE COURT]: Did he do everything for you that you asked him to do?

       [MOVANT]: I don’t know. I wasn’t in chambers. I asked him a couple of things.

       I don’t know if it was discussed or not.

       [THE COURT]: Were there any witnesses that you wanted him to contact for you

       in this matter?

       [MOVANT]: My mother and my sister.

       [THE COURT]: Was there anything else that you wanted [plea counsel] to do to

       prepare and investigate this case?

       [MOVANT]: No.




                                                  7
       [THE COURT]: Do you claim that anyone made any threats to you or any promises

       to you to cause you to plead guilty?

       [MOVANT]: No. [Plea counsel] just said if we entered a blind plea we were going

       to get probation.

       [THE COURT]: Do you agree I never told you that?

       [MOVANT]: I definitely agree.

       [THE COURT]: Do you have any other complaints or criticisms about [plea

       counsel’s] representation?

       [MOVANT]: No.

       [THE COURT]: Let the record show that the Court finds there is no probable cause

       to believe that ineffective assistance of counsel exists.

       Movant’s answers to the court’s questions at both the plea and sentencing hearings directly

refute her assertion that her plea was involuntary, unknowing, and unintelligent. Her belief about

her potential sentence did not result from a positive representation upon which she was entitled to

rely. After Movant stated she completely understood that her sentencing was up to the court’s

discretion, it was unreasonable for her to believe any representation from plea counsel that she was

entitled to receive a suspended imposition of sentence. See Lynn v. State, 417 S.W.3d 789, 795

(Mo. App. E.D. 2013) (holding that the movant’s belief that he would receive a specific sentence

per his plea counsel’s advice was not reasonable after the movant confirmed he understood that

the court had discretion to determine the sentence). When Movant stated she expected to receive

a suspended imposition of sentence, the plea court clarified repeatedly that it had discretion to

consider other options, and that there was no guarantee of probation. Even if plea counsel provided




                                                 8
Movant with a mistaken belief regarding her possible sentence, the record demonstrates that any

reliance on this statement was not reasonable.

       Further, at the sentencing hearing, Movant affirmed she had sufficient time to discuss the

case with plea counsel before deciding to plead guilty. She affirmed she had not been threatened

or promised anything to plead guilty. Although Movant said plea counsel stated that if she entered

a blind plea she would get probation, she affirmed she understood that the plea court never

guaranteed her probation.

       Therefore, the record clearly refutes Movant’s claim that her plea was rendered

involuntary, unknowing, and unintelligent due to ineffective assistance of counsel. Accordingly,

the motion court did not err by denying Movant’s post-conviction motion without an evidentiary

hearing. Movant’s point is denied.

                                           Conclusion

       The judgment is affirmed.




                                             _______________________________
                                             Philip M. Hess, Chief Judge

Gary M. Gaertner, Jr., J. and
Angela T. Quigless, J. concur.




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