              IN THE MISSOURI COURT OF APPEALS
                      WESTERN DISTRICT
RONALD TAYLOR,                 )
                    Appellant, )
                               )
v.                             )               WD78411
                               )
STATE OF MISSOURI,             )               FILED: August 23, 2016
                   Respondent. )
                               )
                   Appeal from the Circuit Court of Clinton County
                       The Honorable Daren L. Adkins, Judge

           Before Division Four: Alok Ahuja, P.J., and Thomas H. Newton
                           and Anthony Rex Gabbert, JJ.
       Appellant Ronald Taylor pleaded guilty to three charges of burglary in the

second degree under § 569.170,1 based on break-ins at three school buildings in

Plattsburg in July 2009. Taylor was sentenced to three consecutive seven-year

sentences, and placed on probation. After his probation was revoked and the

sentences executed, Taylor moved for post-conviction relief under Supreme Court

Rule 24.035. Taylor’s amended Rule 24.035 motion alleged that his guilty pleas

were involuntary because they were coerced by the State’s initial filing of charges of

burglary in the first degree, for which the prosecution lacked probable cause.

Taylor also contended that his appointed plea counsel was incompetent for failing to

advise Taylor of the lack of a factual basis to support the first-degree burglary

charges, or to otherwise challenge those charges.

      1      Unless otherwise indicated, statutory citations refer to the 2000 edition of the
Revised Statutes of Missouri, as updated through the 2008 Cumulative Supplement.
      The circuit court denied relief without conducting an evidentiary hearing.

Because we conclude that Taylor’s amended postconviction relief motion alleged

facts which would entitle him to relief, and which were not conclusively refuted by

the record, we reverse, and remand to the circuit court for an evidentiary hearing on

Taylor’s claims.

                                      Background
      Taylor’s convictions stem from break-ins at a Plattsburg elementary school,

middle school, and high school on the morning of Sunday, July 5, 2009. Property

was damaged or stolen at each location. Taylor was arrested after he attempted to

sell property taken from the high school to a confidential informant.

      Taylor was initially charged by information in separate cases with three

counts of burglary in the first degree under § 569.160. Burglary in the first degree

is a Class B felony. § 569.160.2. Under the statutes then in effect, Class B felonies

were punishable by a term of imprisonment “not less than five years and not to

exceed fifteen years.” § 558.011.1(2).

      Pursuant to a plea agreement, the State agreed to amend the three charges

to burglary in the second degree under § 569.170. Burglary in the second degree is

a Class C felony, § 569.170.2, which at the time was punishable by imprisonment
for “a term of years not to exceed seven years.” § 558.011.1(3).

      On January 8, 2010, Taylor pleaded guilty to three counts of burglary in the

second degree. At his sentencing hearing, the prosecution asked the court to impose

the maximum sentence of seven years on each count, and to run the sentences

consecutively to one another.2 The circuit court followed the State’s


      2        It appears that the prosecutor’s advocacy of maximum sentences on each
count violated the terms of the parties’ written plea agreement. A written one-page
“Memorandum of Plea Bargain,” signed by Taylor, his counsel, and an assistant prosecutor,
states that the prosecution will “TAKE[ ] NO POSITION ON LENGTH OF SENTENCE.”
And at his guilty-plea hearing, the court explained to Taylor that, under the plea
agreement, the State would “stand silent regarding the range of punishment.” Taylor did


                                            2
recommendation, and sentenced Taylor to seven years’ imprisonment – the

maximum authorized sentence – on each count, with the sentences ordered to run

consecutively. Execution of the sentences was suspended and Taylor was placed on

probation.

       The circuit court revoked Taylor’s probation and executed the sentences on

October 5, 2012. Following the revocation of his probation, Taylor moved for

postconviction relief under Supreme Court Rule 24.035. The Amended Motion filed

by appointed counsel contends that Taylor’s guilty pleas were coerced and

involuntarily because the prosecutor initially charged and threatened Taylor with

prosecution for burglary in the first degree, even though the prosecutor lacked

probable cause for the first-degree burglary charges. Taylor further alleged that the

pleas were coerced and involuntary due to the ineffective assistance of his plea

counsel, who failed to advise Taylor of the lack of a factual basis for the first-degree

burglary charges, and failed to investigate or challenge the initial charges before

advising Taylor to accept the plea agreement. Taylor alleged that he would not

have pleaded guilty, but would have insisted on going to trial, were it not for

prosecution’s initial filing of the baseless first-degree burglary charges, and his

counsel’s incompetent response to those charges.
       The Circuit Court of Clinton County denied the Amended Motion without an

evidentiary hearing. The motion court concluded that Taylor’s allegations were

refuted by the record. It explained:

       The record in this case shows that Movant specifically denied that he
       had been threatened or coerced into pleading guilty. Specifically,
       during his guilty plea, Movant was questioned by the Court as to the
       voluntariness of his plea and the assistance of his counsel, including
       whether Movant had “been threatened or coerced in any manner to

not raise any claim concerning the prosecution’s apparent breach of the plea agreement in
his amended postconviction relief motion or on appeal, however, and “there is no plain error
review in an appeal from a post-conviction judgment for a claim that was not presented in
the post-conviction motion.” Mallow v. State, 439 S.W.3d 764, 769-70 (Mo. banc 2014).


                                             3
      cause [him] to plead guilty[, including a] . . . threat of further
      prosecution, dismissal of other charges, or anything that is not now
      before the Court.” The record shows that Movant gave no answers to
      the Court indicating that his plea was anything other than voluntary,
      or that he was in any way dissatisfied with his counsel. The record
      refutes Movant’s allegations that he was coerced to plead guilty
      through the threat of additional or allegedly improper charges, so
      Movant is not entitled to a hearing on his claims.
(Record citation omitted.)

      Taylor appeals.

                                     Discussion
                                          I.
      Before addressing the merits of Taylor’s claims on appeal, we are required to

determine whether his Amended Motion for postconviction relief was timely filed.

See, e.g., Childers v. State, 462 S.W.3d 825, 827 (Mo. App. E.D. 2015) (citing Moore
v. State, 458 S.W.3d 822 (Mo. banc 2015)).
      The State argues that the Amended Motion was filed a day late, and that the

case must therefore be remanded to the motion court to determine whether Taylor

was abandoned by post-conviction counsel or instead whether the untimely filing

was Taylor’s fault. We disagree.

      Taylor initially filed a timely pro se motion for postconviction relief on

January 11, 2013. Counsel was appointed to represent him on January 17, 2013.
Taylor’s guilty plea and sentencing transcripts were filed in the circuit court on

April 15, 2013. With a 30-day extension which was granted at the request of

appointed counsel, Taylor’s amended Rule 24.035 motion was due on July 14, 2013.

      On July 19, 2013, Taylor’s counsel filed a motion confessing his abandonment

of Taylor due to counsel’s failure to file a timely amended motion. Counsel asserted

that his abandonment was caused by his failure to calendar the due date for the

amended motion. Counsel requested that the motion court find that Taylor had




                                           4
been abandoned, re-appoint counsel, and permit him additional time within which

to file an amended motion.

      On July 22, 2013, the motion court granted counsel’s motion, found that

Taylor had been abandoned, and re-appointed counsel to represent Taylor. The

Court’s July 22, 2013 order “ORDERED that Movant file his amended motion for

post-conviction relief within ninety days of the date of counsel’s reappointment.”

      The 90th day following the July 22, 2013 order was Sunday, October 20, 2013.

Accordingly, the State and Taylor agree that the Amended Motion was due on

Monday, October 21, 2013. See Rule 44.01(a). The motion court’s judgment states

that the Amended Motion was filed on October 22, 2013 – one day beyond the

deadline specified in the court’s July 22, 2013 order. Further, the Clerk’s file stamp

indicates that the Amended Motion was filed on October 22. Based on these facts,

the State argues that the Amended Motion was untimely, necessitating that the

case be remanded to the motion court for an abandonment inquiry.

      What the State neglects, however, is that the copy of the Amended Motion in

the circuit court’s file bears a facsimile transmission time stamp indicating that it

was received by the court at 3:27 p.m. on October 21, 2013 – the date the Motion

was due. The Forty-Third Circuit’s Local Rule 3.3 in effect in October 2013 states:

             Facsimile transmissions of pleadings are permissible in any
      situation. No filing by facsimile shall be processed by the clerks until
      the appropriate filing fees have been received.
             Time of receipt of any pleading shall be governed by the time
      affixed on the facsimile transmission and shall be filed accordingly, if
      the appropriate filing fees have been received.
      No filing fees were due with the Amended Motion. Because it was received

by the circuit court by facsimile transmission during business hours on October 21,

2013, the Amended Motion was timely filed. As a result, there was no need for the




                                           5
motion court to conduct an abandonment inquiry, and we proceed to the merits of

Taylor’s arguments on appeal.3

                                            II.
       “Review of the denial of a post-conviction motion under Rule 24.035 is

limited to a determination of whether the motion court’s findings of fact and

conclusions of law are clearly erroneous.” Dodson v. State, 364 S.W.3d 773, 776 (Mo.

App. W.D. 2012). “The motion court’s findings and conclusion 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.” Id.

       The circuit court denied Taylor relief on his postconviction relief motion

without conducting an evidentiary hearing. “To show he was entitled to an

evidentiary hearing on his Rule 24.035 motion, Movant must show that (1) he

alleged facts, not conclusions, warranting relief; (2) the facts alleged raise matters

not refuted by the files and record of his case; and (3) the matters complained of

resulted in prejudice to him.” Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc

2009). Regarding the second requirement, “an evidentiary hearing may only be

denied when the record conclusively shows that the movant is not entitled to relief.”

Id. “In reviewing the motion court’s dismissal [of a Rule 24.035 motion without an
evidentiary hearing], this Court is required to assume every pled fact as true and

give the pleader the benefit of every favorable inference which may be reasonably

drawn therefrom.” Wooldridge v. State, 239 S.W.3d 151, 154 (Mo. App. E.D. 2007).

                                            A.
       In his Amended Motion, Taylor alleged that his guilty pleas were not

knowing and voluntary because the State initially charged him with offenses for


      3      The State’s appellate brief addresses only the timeliness issue. We therefore
address the merits of Taylor’s postconviction relief motion without the benefit of any
argument by the State.


                                            6
which it lacked probable cause, and his counsel failed to advise him of that fact, or

challenge the factually unfounded charges. If true, those allegations would warrant

a finding that Taylor’s guilty pleas were involuntary, and that he should be entitled

to withdraw them.

      A defendant must enter a guilty plea knowingly and voluntarily. Hill v.

Lockhart, 474 U.S. 52, 56 (1985). In its seminal decision in Bordenkircher v. Hayes,
434 U.S. 357 (1978), the Supreme Court of the United States held that a defendant

could enter a voluntary guilty plea even though prosecutors threatened the

defendant with charges carrying greater punishment, or offered to reduce charges,

during plea negotiations. The Court stressed, however, that its endorsement of

these practices depended on the fact that the prosecution had a good-faith basis for

the harsher charges. The Court explained:

             Plea bargaining flows from “the mutuality of advantage” to
      defendants and prosecutors, each with his own reasons for wanting to
      avoid trial. Defendants advised by competent counsel and protected
      by other procedural safeguards are presumptively capable of
      intelligent choice in response to prosecutorial persuasion, and unlikely
      to be driven to false self-condemnation. Indeed, acceptance of the basic
      legitimacy of plea bargaining necessarily implies rejection of any
      notion that a guilty plea is involuntary in a constitutional sense simply
      because it is the end result of the bargaining process. By hypothesis,
      the plea may have been induced by promises of a recommendation of a
      lenient sentence or a reduction of charges, and thus by fear of the
      possibility of a greater penalty upon conviction after a trial.
             While confronting a defendant with the risk of more severe
      punishment clearly may have a discouraging effect on the defendant's
      assertion of his trial rights, the imposition of these difficult choices is
      an inevitable – and permissible – attribute of any legitimate system
      which tolerates and encourages the negotiation of pleas. It follows
      that, by tolerating and encouraging the negotiation of pleas, this Court
      has necessarily accepted as constitutionally legitimate the simple
      reality that the prosecutor's interest at the bargaining table is to
      persuade the defendant to forgo his right to plead not guilty.
            It is not disputed here that Hayes was properly chargeable
      under the recidivist statute [which the prosecution had threatened to
      invoke during plea negotiations], since he had in fact been convicted of
      two previous felonies. In our system, so long as the prosecutor has


                                           7
       probable cause to believe that the accused committed an offense
       defined by statute, the decision whether or not to prosecute, and what
       charge to file or bring before a grand jury, generally rests entirely in
       his discretion.
Id. at 363-64 (emphasis added; citations and internal quotation marks omitted). As
we explained in State v. Sapien, 337 S.W.3d 72 (Mo. App. W.D. 2011), “[a]s long as

the charges are supported by probable cause, a prosecutor can raise the prospect of
enhanced or additional charges in order to induce a guilty plea, just as the

prosecutor can bring such charges at the outset and offer to reduce or drop them.”

Id. at 80 (emphasis added); see also, e.g., State v. Molinett, 876 S.W.2d 806, 809
(Mo. App. W.D. 1994) (citing Bordenkircher; “If the state has probable cause to

believe that the accused committed a crime as defined by statute, the decision

whether or not to prosecute and what charges to file generally rests entirely within

the prosecutor's discretion.”).4



       4        In a related context, courts have held that a defendant’s guilty plea may be
rendered involuntary where it is based on prosecutorial threats to prosecute other
individuals (often family members), and the prosecution lacks probable cause to charge the
third parties. See, e.g., United States v. Howard, 549 Fed. Appx. 164, 167 (4th Cir. 2013)
(where defendant claimed that his plea was involuntarily induced by prosecution’s threat to
prosecute his mother, defendant “was charged with showing that there was no probable
cause to charge his mother with a crime”); United States v. Vest, 125 F.3d 676, 680 (8th Cir.
1997) (“A plea agreement containing . . . a condition [that another individual would be
permitted to plead guilty and avoid the death penalty only if defendant pleaded guilty] is
proper so long as the government acts in good faith based upon probable cause to file
charges against or to prosecute the third party named in the agreement.”); Miles v. Dorsey,
61 F.3d 1459, 1468 (10th Cir. 1995) (“The government acts in good faith when it offers
leniency for an indicted third party or threatens to prosecute an unindicted third party in
exchange for a defendant's plea when the government has probable cause to prosecute the
third party.”); United States v. Wright, 43 F.3d 491, 499 (10th Cir. 1994) (“To lawfully
threaten third persons with prosecution during the course of plea negotiations, the
government must have probable cause that those third persons committed the crime that
the government threatens to charge.”).
       Missouri’s ethical rules have long prohibited prosecutors from filing charges for
which they lack probable cause. Supreme Court Rule 4-3.8(a), part of the current Rules of
Professional Conduct, instructs that “[t]he prosecutor in a criminal case shall . . . refrain
from prosecuting a charge that the prosecutor knows is not supported by probable cause.”
Predecessor rules contained a similar prohibition. See State v. Johnson, 702 S.W.2d 65, 69
(Mo. banc 1985) (earlier Disciplinary Rules “prohibit a prosecuting attorney from
instituting criminal charges without probable cause”).


                                              8
      In addition, a defendant is entitled to the effective representation of counsel

in connection with the negotiation of a plea agreement. “[T]he negotiation of a plea

bargain is a critical phase of litigation for purposes of the Sixth Amendment right to

effective assistance of counsel.” Padilla v. Ky., 559 U.S. 356, 373 (2010) (citations

omitted). “Before deciding whether to plead guilty, a defendant is entitled to ‘the

effective assistance of competent counsel.’” Id. at 356 (citation omitted); see also,

e.g., Mo. v. Frye, 132 S.Ct. 1399, 1405 (2012); Lafler v. Cooper, 132 S.Ct. 1376, 1384
(2012). Effective assistance in plea negotiations requires counsel to conduct a

reasonable investigation before advising a client to accept a plea:

             To aid the defendant in reaching a decision, defense counsel,
      after appropriate investigation, should advise the defendant of the
      alternatives available and address considerations deemed important
      by defense counsel or the defendant in reaching a decision. Defense
      counsel should not recommend to a defendant acceptance of a plea
      unless appropriate investigation and study of the case has been
      completed.
ABA STANDARDS FOR CRIMINAL JUSTICE, PLEAS OF GUILTY, Standard 14-3.2(b) (3d

ed. 1999).5 An appropriate investigation by counsel is necessary to ensure a

defendant makes a knowing and voluntary decision to accept a guilty plea, because

prior to pleading guilty, “[a] defendant needs to know, for example, the probability

of conviction in the event of trial. Because this requires a careful evaluation of
problems of proof and of possible defenses, few defendants can make this appraisal

without the aid of counsel.” Id., Standard 14-3.2, Commentary at 118. Where a

defendant can show that plea counsel’s failure to conduct an adequate investigation

“‘affect[ed] the voluntariness and understanding with which the plea of guilty was


        5      Although they are not controlling, the Supreme Court of the United States
has recognized that “codified standards of professional practice . . . can be important
guides” in determining whether defense counsel’s performance was constitutionally
sufficient. Frye, 132 S.Ct. at 1408 (citing ABA STANDARDS FOR CRIMINAL JUSTICE, PLEAS
OF GUILTY); Padilla, 559 U.S. at 367 (“‘[p]revailing norms of practice as reflected in
American Bar Association standards and the like’” “may be valuable measures of the
prevailing professional norms of effective representation”; citation omitted).


                                            9
made,’” the defendant may state a viable claim for postconviction relief. Voegtlin v.

State, 464 S.W.3d 544, 553 (Mo.App. E.D. 2015) (citation omitted); see also, e.g.,
Ervin v. State, 423 S.W.3d 789 (Mo. App. E.D. 2013) (reversing circuit court’s denial
of postconviction relief based on inadequate investigation by plea counsel); Schafer

v. State, 256 S.W.3d 140 (Mo. App. W.D. 2008) (remanding claim of inadequate
investigation by plea counsel to the circuit court for evidentiary hearing).

      Thus, if Taylor can establish that his guilty pleas were induced by the threat

of prosecution for charges for which the State lacked probable cause, and that his

plea counsel did not advise him of the baselessness of the original charges or take

action to challenge them, he would establish the involuntariness of his pleas, and be

entitled to withdraw them. Taylor’s Amended Motion adequately alleged facts to

support these claims. As noted in Taylor’s Amended Motion, the State initially

charged him with three counts of burglary in the first degree. Section 569.160.1

provides that

             A person commits the crime of burglary in the first degree if he
      knowingly enters unlawfully or knowingly remains unlawfully in a
      building or inhabitable structure for the purpose of committing a crime
      therein, and when in effecting entry or while in the building or
      inhabitable structure or in immediate flight therefrom, he or another
      participant in the crime:
             (1)    Is armed with explosives or a deadly weapon or;
            (2)   Causes or threatens immediate physical injury to any
      person who is not a participant in the crime; or
             (3)    There is present in the structure another person who is
      not a participant in the crime.
By contrast, “[a] person commits the crime of burglary in the second degree when he

knowingly enters unlawfully or knowingly remains unlawfully in a building or

inhabitable structure for the purpose of committing a crime therein.” § 569.170.1.

      Thus, to prosecute Taylor for burglary in the first degree, the State was
required to show not only that he unlawfully entered or remained in the school


                                          10
buildings for the purpose of committing a crime, but that in connection with the

offense, (1) Taylor was armed, (2) he caused or threatened physical injury to a third

party, or (3) a third party was present in the buildings.

      As Taylor’s Amended Motion alleges, none of the charging instruments filed

by the State alleged the existence of the additional circumstances necessary to

support a charge of first-degree – as opposed to second-degree – burglary. Instead,

the original information in each case charged only the facts necessary to sustain a

charge of second-degree burglary: each information alleged that Taylor “knowingly

entered and remained unlawfully in an inhabitable structure, . . . for the purpose of

committing stealing [or vandalism] therein.” Notably, the information in each case

appears to be based on the pattern charge for burglary in the second degree

(MACH-CR 23.54), rather than the pattern charge for burglary in the first degree,

which requires the prosecution to specify the additional circumstances which justify

the higher charge. See MACH-CR 23.52.

      Further, the Affidavits of Probable Cause attached to each Information

similarly fail to recite facts which would support a charge of first-degree burglary,

and cast doubt on whether such circumstances in fact existed. Each affidavit was

submitted by Plattsburg Police Officer Eddy J. Gilpin. The offenses occurred on
July 5, 2009 – the Sunday of the 4th of July holiday weekend (and presumably

during the schools’ summer recess). The affidavit relating to the break-in at the

high school states that Taylor “can be observed” (presumably on a video surveillance

recording) entering the school at 6:23 a.m., and remaining inside the school until

7:38 a.m. According to Gilpin’s affidavit, Taylor “can be observed . . . walking

throughout the High School for approximately one hour and fifteen minutes,”

during which time Taylor picked up a backpack containing a laptop computer and

iPod, which he attempted to sell to a confidential informant at approximately noon
on July 5. With respect to the elementary school break-in, Gilpin’s affidavit states


                                          11
that Taylor entered the school building between 7:38 and 11:00 a.m., forcibly

entered several classrooms (causing damage to door frames and locking

mechanisms), damaged two computer monitors, and discharged a fire extinguisher

in the Principal’s Office. With respect to the middle school, Gilpin’s affidavit states

that Taylor gained access by prying open a lock on the exit door, broke an interior

window in the School Secretary’s office, and attempted to gain access to a safe in the

office by prying the hinges loose.6

       None of the affidavits refer to Taylor being armed, or injuring or threatening

to injure any individual; nor do any of the affidavits refer to other persons being

present in the school buildings. The nature of Taylor’s actions described in the

affidavits (including wandering through the high school building for more than an

hour, and entering multiple classrooms in the elementary school), suggest that

other persons were not present. Certainly, none of the affidavits suggest that

Taylor was interrupted in media res; instead, it appears that he was arrested

following all three burglaries, when he attempted to sell electronic equipment he

had stolen from the high school. The likelihood that the buildings were vacant is

increased by the fact that the burglaries targeted school buildings on the Sunday

morning of a holiday weekend during the summer vacation period.
       Notably, although Gilpin’s affidavits are attached to Informations which

charge first-degree burglary, the first paragraph of each Affidavit of Probable Cause

recites:

       I have probable cause to believe that on 07/05/2009 the Suspect,
       Ronald Shane Taylor a white male, DOB: [specified], SOC: [specified]


       6      With respect to the break-in at the middle school, Gilpin’s affidavit states
that the unlawful entry occurred “[o]n [Sunday,] 06/28/2009 . . . between the hours of 1600
and 0800.” The information to which this affidavit is attached charges Taylor with a first-
degree burglary occurring on July 5, however, and statements during the guilty-plea and
sentencing hearings likewise indicate that all three burglaries occurred on the morning of
July 5, 2009.


                                             12
      who was last know[n] to reside at [address] committed one or more
      criminal offense(s).
      Burglary in the Second Degree (§569.170 RSMo) A Class C Felony
(Emphasis in original.)

      Besides referring to the charging documents and Affidavits of Probable

Cause, Taylor’s Amended Motion also alleges that “[t]here was no indication in the

discovery that another person was present in any of the school buildings or any

other basis to warrant a charge of burglary in the first degree.”

      We also note that during Taylor’s guilty-plea hearing, he testified that the

three burglaries occurred on “the morning of the 5th, but it all happened on the

night of the 4th of July,” substantially diminishing the likelihood that anyone was

in the buildings at the time. During the guilty-plea hearing the court asked both

Taylor and the prosecution to describe the events as known to them; neither Taylor

nor the State identified any facts which would support a charge of first-degree

burglary with respect to any of the three offenses.

       Taylor’s Amended Motion alleges that his appointed counsel “advised

Movant to waive his preliminary hearings, never contested the lack of probable

cause or factual allegations to support the first degree burglary charges, never

advised Movant concerning the lack of any factual basis for the first degree burglary

charges, and proceeded throughout the case as if there was some basis for the first

degree burglary charges.” The Motion also alleges that, “[b]ased on the threat of a

potential prosecution for the three class B felonies, Movant agreed to plead guilty,”

that his guilty pleas were involuntary because they “were induced by a threat to

prosecute Movant for offenses he did not commit,” and that, but for his counsel’s

failure to address the baseless charges, “Movant would not have pleaded guilty, but

would have proceeded to trial.”




                                          13
      The nature of the plea agreement negotiated by Taylor’s counsel also

suggests that the viability of the first-degree burglary charges was a critical factor

in Taylor’s decision to plead guilty. Because the prosecution did not adhere to its

written agreement to make no sentencing recommendation (see note 2, above, and

because Taylor was ultimately sentenced to consecutive, maximum-length

sentences for the three charges, it appears that the only meaningful concession he

won in the plea agreement was the State’s agreement to reduce the charges from

first- to second-degree burglary. Unless Taylor faced a legitimate prospect of

conviction for first-degree burglary, it appears that he ultimately received little or

nothing in exchange for his waiver of his right to trial.

      In these circumstances, we conclude that Taylor’s Amended Motion

sufficiently “alleged facts, not conclusions, warranting relief,” and alleged that “the

matters complained of resulted in prejudice to him.” Roberts v. State, 276 S.W.3d

833, 835 (Mo. banc 2009). To determine whether he was entitled to an evidentiary

hearing, the remaining issue is whether the facts alleged in his Amended Motion

“raise matters not refuted by the files and record of his case.” Id.

                                           B.
      The motion court concluded that Taylor’s allegations were refuted by the
record based on his answers to questions from the Court during his guilty-plea

hearing. We disagree.

      The motion court first cited Taylor’s response to a question concerning

threats which may have induced his plea. The relevant exchange from his guilty-

plea hearing was transcribed as follows:

            Q.     . . . Have you been threatened or coerced in [an]y manner
      to cause you to plead guilty here today?
            And that would include a threat of physical violence to you, your
      friends; a threat of further prosecution, dismissal of other charges, or
      anything that is not now before the Court.


                                           14
             A.     (Inaudible response.)
             Q.     Have you been promised anything to cause you to plead
      guilty other than the amendment of the three charges and that the
      state will make no mention of – make no recommendation as to the
      range of punishment but only that it be run consecutive?
             That’s all you’ve been told?
             A.     Yes.
      We assume that in response to the first question, Taylor indicated that he

had not been threatened or coerced, although the transcript records no response.

Even on this assumption, however, this colloquy is insufficient to refute Taylor’s

current claim. The general reference to threats or coercion, with the examples of “a

threat of physical violence” or further prosecution “that is not now before the

Court,” was insufficient to prompt Taylor to address any defects in the charges filed

in the three cases themselves. Moreover, the court’s very next question specifically

referred to the State’s promise to amend the charges in the three cases to second-

degree burglary, indicating that the amendment of the charges (or the withholding

of that amendment if Taylor did not plead guilty) was not the sort of threat or

coercion to which the court was referring.

      The motion court also referred to Taylor’s failure during the guilty-plea

hearing to indicate “that he was in any way dissatisfied with counsel.” The court

made only general inquiries of Taylor concerning his satisfaction with counsel’s

performance, however. Taylor’s failure to express dissatisfaction with his counsel in

response to very general questioning at his guilty-plea hearing is insufficient to

conclusively refute his ineffective-assistance claim, particularly where there is no

indication that Taylor would have been aware of his present claim at the time. See

Webb v. State, 334 S.W.3d 126, 130 (Mo. banc 2011) (“a negative response to a
routine inquiry [concerning satisfaction with counsel’s services] has not been
considered sufficient to refute the record”).




                                            15
                                    Conclusion
      The judgment of the circuit court is reversed, and the case is remanded for

further proceedings consistent with this opinion.




                                              Alok Ahuja, Judge
All concur.




                                         16
