                     In the Missouri Court of Appeals
                             Eastern District
                                      DIVISON FOUR

LONNIE BRILEY,                               )     No. ED101689
                                             )
       Appellant,                            )     Appeal from the Circuit Court of
                                             )     St. Francois County
vs.                                          )
                                             )
STATE OF MISSOURI,                           )     Honorable Kenneth W. Pratte
                                             )
       Respondent.                           )     Filed: June 23, 2015

                                       Introduction

       Lonnie Briley (Movant) appeals the judgment of the Circuit Court of St. Francois County

denying without an evidentiary hearing his Rule 24.035 motion for post-conviction relief.

Movant claims the motion court clearly erred in denying his claim that plea counsel provided

ineffective assistance by misinforming and failing to explain to him the meaning of the terms

“consecutive” and “concurrent.” We affirm.

                             Factual and Procedural Background

       On October 3, 2012 Movant pleaded guilty in two cases. In the first case, the State

charged Movant with tampering in the first degree and misdemeanor stealing. In the second

case, the State charged Movant with burglary in the second degree.
       At the plea hearing,1 the trial court reviewed the essential elements and ranges of

punishment of each of the charged offenses. Movant affirmed that he understood that the range

of punishment for first-degree tampering and second-degree burglary was “up to seven years in

the state Department of Corrections or a county jail term of up to one year or a fine of up to

$5,000.00 or a combination of fine and confinement.” The prosecutor announced that the parties

had entered a plea bargain agreement, pursuant to which the State was recommending that the

plea court sentence Movant to seven years’ imprisonment for tampering and thirty days’ jail time

for stealing in the first case, with suspended execution of sentence and five years’ supervised

probation. As to the second case, the State recommended “also a sentence of seven years to the

Department of Corrections to run consecutive to the sentence in the other case, and five years’

supervised probation.”

       After the plea court found that Movant entered his pleas of guilty voluntarily and

intelligently and accepted his pleas, the plea court announced Movant’s sentence as follows:

                  [The first case], Count I, it is the sentence, judgment, and order of the
          Court that the defendant be confined to the State Department of Corrections for
          a period of seven years for the class C felony of tampering in the first degree.
                  Court orders that the execution of that sentence be suspended and
          places the defendant on five years[’] supervised probation with the State Board
          of Probation and Parole.
               As to Count II, the Court sentences the defendant to thirty days in the
          county jail with credit for time served. It is my understanding he has enough
          time to meet that, so no additional time is to be served.
               In [the second case], it is the sentence, judgment, and order of the Court
          that he be confined to the State Department of Corrections for a period of
          seven years for the class C felony of burglary in the second degree.
               This sentence is to run consecutive to the seven years imposed [the first
          case], for a total sentence of fourteen years to the Department of Corrections.
               Again, the Court suspends execution of the sentence, places the defendant
          on a concurrent five year probation with the State Board of Probation and
          Parole.

1
  The plea court conducted a group guilty plea at which five additional defendants pleaded guilty
to offenses unrelated to Movant’s.
                                                2
(emphasis added). Prior to the conclusion of the hearing, the plea court advised: “Mr. Briley,

you have a couple of felony convictions here. Seven and seven running consecutive for fourteen

years. If you violate probation, that’s going to be the sentence that you serve. Understood, sir?”

Movant assured the plea court that he understood.

          On June 3, 2013, Movant appeared before the plea court on two new cases (third case and

fourth case) and an alleged probation violation. The plea court first conducted a plea hearing for

the third case, which charged Movant with committing two counts of second degree burglary

(Counts I and II) on January 13, 2013.2        The plea court recited the essential elements of the

charges and informed Movant that the range of punishment on second-degree burglary “is up to

seven years in the State Department of Corrections or a county jail term of up to one year or a

fine of up to $5,000.00 or a combination of fine and confinement.” The plea court asked

Movant, “And do you understand it pertains individually to each of your charges, Mr. Briley,”

and Movant answered, “Yes.”

          The plea court then asked the prosecutor to announce the parties’ plea bargain and

explain “how it factors into his probation cases, also.” The prosecutor stated: “On Count I and

II, it would be seven years each, Missouri Department of Corrections to run consecutively, for a

total of fourteen years. That fourteen years is to run concurrent with his probation violation.

Further, we will be dismissing [the fourth case].” This exchange followed:

             [COURT]: Now, let me ask you this. Does he already have a sentence
             imposed? I think you said there [were] two probation cases. Does he already
             have a sentence or –
             [PROSECUTOR]: He already has a sentence, Your Honor. Both SES, seven
             years on one and seven years on the other to run consecutive.
             [COURT]: And those are already run consecutive for fourteen?
             [PROSECUTOR]: Yes, Your Honor.

2
    This plea hearing was also a group plea.
                                                  3
             [COURT]: And this new fourteen is to run concurrent with that?
             [PROSECUTOR]: Yes, Your Honor. . . . And then Judge, further, the State
             will be dismissing [the fourth case].

Movant assured the plea court that he understood the plea agreement and did not have any

questions.

       After accepting Movant’s guilty pleas, the plea court announced that it was sentencing

Movant to consecutive terms of seven years’ imprisonment for Counts I and II. The plea court

explained: “The sentence under Count II is to run consecutively to the sentence imposed under

Count I, for a total sentence of fourteen years.        And then this fourteen years is to run

concurrently with what I have been told are two probation violation cases, where you already

have sentences imposed. And I believe those total fourteen years, also.” (emphasis added).

       The plea court proceeded to address Movant’s probation violations. Movant admitted

that he violated a condition of his probation “by commission of the new offenses that [he] just

pled guilty to . . . two counts of burglary in the second degree,” and the plea court revoked his

probation. This exchange followed:

             [COURT]: Now, Mr. Briley, since these two sentences preceded your new
             ones, in other words, you were already subject to those sentences in
             accordance with your plea bargain, I ordered the new sentences totaling
             fourteen years to run concurrent with these. Do you understand?
             [MOVANT]: Yes.
             [COURT]: So I have met your plea bargain agreement. Do you understand
             that, sir?
             [MOVANT]: Yes.

In accordance with the plea agreement, the plea court executed Movant’s fourteen-year sentence

for the 2012 burglary and tampering convictions. The plea court then examined Movant to

affirm his understanding of the proceedings:

             [COURT]: And you are the same Lonnie Leon Briley who on your probation
             violation cases, who appeared before me on October 3, 2012, pled guilty to
             tampering in the first degree in one case and burglary in the second degree in

                                                 4
          the other case. I sentenced you to seven years to the Department of
          Corrections on each of the cases and ordered them to run consecutive to each
          other, suspended those sentences, and placed you on probation. Today I found
          that you have violated your probation, revoked it, and I have ordered those
          sentences executed. Are you with me so far, sir?
          [MOVANT]: Yes.
          [COURT]: And then, of course, you also appeared before me today in your
          new case, [third case], and pled guilty to two class C felonies of burglary in the
          second degree, and those – on those, in accordance with your plea bargain, you
          received seven years on each count to run consecutive to each other, for a total
          of fourteen, but that is to run concurrent with this fourteen years you were
          already obligated to serve. Do you understand your sentences, sir?
          [MOVANT]: Yes.
          [COURT]: And how they run?
          [MOVANT]: Yes.

(emphasis added).

       Movant filed a pro se Rule 24.035 motion for post-conviction relief, which counsel

amended. In his amended motion, Movant alleged that “plea counsel were ineffective for

misinforming, and failing to explain and ensure that Movant understood, what the terms

‘consecutive’ and ‘concurrent’ meant when explaining the plea agreements in this case.” The

motion court denied Movant’s Rule 24.035 motion without an evidentiary hearing because it

found the record conclusively refuted his claim that he did not understand “that consecutive

sentences of seven years meant he would serve fourteen years . . . .” Movant appeals.

                                       Standard of Review

       Our review of the motion court’s denial of post-conviction relief pursuant to Rule 24.035

is limited to a determination of whether the motion court’s findings and conclusions are clearly

erroneous. Rule 24.035(k). As the motion court’s findings and conclusions are presumed to be

correct, they will be deemed clearly erroneous only if, upon a review of the record, we are left

with the firm impression that a mistake has been made. Roberts v. State, 276 S.W.3d 833, 835




                                                5
(Mo. banc 2009). A movant has the burden to show by a preponderance of the evidence that the

motion court clearly erred in its ruling. Id.

                                                Discussion

         In his sole point on appeal, Movant claims the motion court clearly erred in denying his

Rule 24.035 motion without an evidentiary hearing because the record does not refute his

allegations that plea counsel were ineffective for misinforming and failing to explain to Movant

the meanings of the terms “consecutive” and “concurrent.” Movant further asserts that, but for

plea counsels’ ineffectiveness, he would not have pleaded guilty. The State counters that the

motion court did not clearly err in denying Movant’s Rule 24.035 motion without an evidentiary

hearing because Movant’s allegations were refuted by the record.

         A movant is entitled to an evidentiary hearing on a motion for post-conviction relief only

if: (1) he alleges facts, not conclusions, warranting relief; (2) the facts alleged are not refuted by

the record; and (3) the matters complained of prejudiced the movant. Roberts, 276 S.W.3d at

835. “If the court shall determine the motion and the files and records of the case conclusively

show that the movant is entitled to no relief, a hearing shall not be held.” Mo. Sup. Court Rule

24.035(h). “When the requested evidentiary hearing involves a claim of ineffective assistance of

counsel, the movant must allege facts, unrefuted by the record, that (1) trial counsel’s

performance did not conform to the degree of skill, care and diligence of a reasonably competent

attorney and (2) he was thereby prejudiced.” Webb v. State, 334 S.W.3d 126, 128 (Mo. banc

2011).

         When a movant enters a plea of guilty, ineffective assistance of counsel is relevant only

to the extent it affected the voluntariness of the plea. Burnett v. State, 311 S.W.3d 810, 817

(Mo.App.E.D. 2009).       “Mistaken beliefs about sentencing affect a defendant's ability to



                                                    6
knowingly enter a guilty plea if the mistake is reasonable and the mistake is based upon a

positive representation upon which the movant is entitled to rely.” Dorsey v. State, 115 S.W.3d

842, 845 (Mo. banc 2003). When a movant claims that he pleaded guilty due to a mistaken

belief about the sentence, the test is whether a reasonable basis existed in the record for that

belief. Evans v. State, 315 S.W.3d 404, 405 (Mo.App.E.D. 2010). Importantly, a movant’s

guilty plea is voluntary “even though his attorney gave him erroneous advice if the court’s

questioning of the defendant at the plea proceeding thoroughly disabused him of any

preconceived notions regarding the consequences of a guilty plea.” Allen v. State, 233 S.W.3d

779, 783 (Mo.App.E.D. 2007) (internal quotation omitted) (emphasis in original).

       In this case, the record reveals that the plea court “thoroughly disabused [Movant] of any

preconceived notions” about the consequences of his guilty pleas and the total length of his

sentence. At the plea hearings in October 2012 and June 2013, the plea court repeatedly

informed Movant that his total sentence would equal fourteen years. At the October 2012 plea

hearing, the plea court stated that Movant’s seven-year sentence on the second case “is to run

consecutive to the seven years imposed in [the first case], for a total sentence of fourteen years to

the Department of Corrections.” The plea court further clarified the consequences of Movant’s

guilty pleas, stating: “[Y]ou have a couple of felony convictions here. Seven and seven running

consecutively for fourteen years. If you violate probation that’s going to be the sentence you

serve.” When the plea court inquired whether Movant understood the sentence, Movant assured

the plea court that he did.

       At the June 2013 plea hearing on the two second-degree burglary charges, the prosecutor

explained that the State was recommending seven years’ imprisonment for each charge “to run

consecutively, for a total of fourteen years.” The prosecutor further stated that the fourteen-year



                                                 7
sentence for the 2013 burglaries would run “concurrent” with the fourteen-year sentence the plea

court would execute for the 2012 offenses. Movant affirmed the prosecutor’s recitation of the

plea bargain agreement, denied having any questions, and stated that he still wished to enter a

guilty plea. When the plea court announced Movant’s sentence on the 2013 burglaries, it stated

three times that Movant’s sentence would total fourteen years: “The sentence under Count II is

to run consecutively to the sentence imposed under Count I, for a total sentence of fourteen

years. And then this fourteen years is to run concurrently with what I have been told are two

probation violation cases, where you already have sentences imposed. And I believe those total

fourteen years, also.”

       During the probation revocation portion of the June 2013 hearing, the plea court again

explained the court’s sentencing decision and offered Movant the opportunity to ask questions.

When it revoked Movant’s probation on the 2012 burglary and tampering convictions and

executed the previously imposed sentence, it reiterated that Movant would serve seven years on

each of the 2013 burglary counts “for a total of fourteen years, but that is to run concurrent with

this fourteen years you were already obligated to serve.” Prior to concluding the hearing, the

plea court asked Movant whether he understood the sentences and “how they run,” and Movant

assured the court that he understood.

       Based on our review, we conclude that the record refutes Movant’s claims that “he did

not know the seven-year sentences would run one after the other” and “he did not understand the

difference between a concurrent and a consecutive sentence until after all of his sentences were

executed on June 3, 2013.” We further hold that any mistaken belief Movant had regarding the

manner in which the plea court ran his sentences was unreasonable. At the October 2012 hearing

on the burglary and tampering charges, the plea court twice advised Movant that his two seven-



                                                8
year sentences would run consecutively for a total of fourteen years. Movant neither questioned

the meaning of “consecutive sentences” nor the stated total of fourteen years. At the June 2013

plea hearing relating to the 2013 burglaries, Movant affirmed his understanding that, pursuant to

the plea bargain agreement, the State was recommending consecutive seven-year terms for each

count “for a total of fourteen years.” The plea court stated at least five additional times that the

two seven-year sentences for the 2012 burglary and tampering convictions would run

consecutively with each other and concurrently with the two consecutive seven-year sentences

for the two 2013 burglary charges, for a total sentence of fourteen years’ imprisonment.3

        “Where there is no reasonable basis for the movant’s belief in light of the guilty plea

record, the movant is not entitled to relief.”        Kennell v. State, 209 S.W.3d 504, 508

(Mo.App.E.D. 2006). The motion court properly denied Movant an evidentiary hearing on his

allegations that he did not understand the plea agreements because the record conclusively

establishes that his pleas were knowingly and voluntarily entered. Point denied.

                                           Conclusion

       The judgment of the motion court is affirmed.




3
  Movant claims that his alleged confusion regarding the total length of his sentence was
reasonable because the 2012 and 2013 plea proceedings “were conducted where he was part of a
group of unrelated criminal defendants.” He correctly asserts that “the use of group pleas is a
problematic practice” disfavored by our courts. Wright v. State, 411 S.W.3d 381, 387
(Mo.App.E.D. 2013). However, the Supreme Court has rejected the argument that group pleas
should be “deemed automatically invalid or declared impermissible.” Roberts v. State, 276
S.W.3d 833, 837 n.5 (Mo. banc 2009). Although the instant case involved group plea
proceedings, there exists an adequate record to conclusively refute Movant’s claim that he did
not understand the plea agreements.
                                                 9
                                     Patricia L. Cohen, Presiding Judge

Roy L. Richter, J., and
Robert M. Clayton III, J., concur.




                                       10
