                          In the Missouri Court of Appeals
                                  Eastern District
                                                DIVISION TWO

CARENZO PITTMAN                                            )       No. ED103324
                                                           )
           Appellant,                                      )       Appeal from the Circuit Court of
                                                           )       the City of St. Louis
vs.                                                        )
                                                           )
STATE OF MISSOURI,                                         )
                                                           )       Honorable Elizabeth B. Hogan
                                                           )
           Respondent.                                     )       Filed: May 17, 2016

                                                 I. Introduction

           Carenzo Pittman (“Movant”) appeals from the judgment of the motion court denying his

Rule 24.035 1 post-conviction relief motion (“Rule 24.035 motion”) without an evidentiary

hearing. While the record is unclear as to when the complete transcript was filed, which is

required to determine the timeliness of an amended motion, we find the motion court considered

whether abandonment occurred under Moore v. State, 458 S.W.3d 822, 825 (Mo. banc 2015).

Further, the motion court entered findings of fact and conclusions of law on all claims in

Movant’s pro se motion and amended motion, making remand unnecessary. See Childers v.

State, 462 S.W.3d 825, 828 (Mo. App. E.D. 2015). Thus, we affirm the motion court’s judgment

as its findings and conclusions are not clearly erroneous.




1
    Rule reference is to Missouri Supreme Court Rules (2015).

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           Movant pleaded guilty to one count of robbery in the first degree, in violation of Section

569.020, RSMo (2000). 2 Movant asserts two points on appeal. In Point I, Movant claims the

motion court erred in denying his claim that counsel was ineffective for advising him that if he

entered a plea of guilty, the court would only sentence him to ten years’ imprisonment. In Point

II, Movant claims the motion court erred in denying his claim that counsel was ineffective for

failing to correct the sentencing court’s recitation of the facts because the sentencing court

incorrectly recalled the facts that Movant pleaded guilty to at his guilty plea hearing. We find the

motion court’s findings of fact and conclusions of law are not clearly erroneous and affirm.

                                   II. Factual and Procedural Background

           Movant pleaded guilty to one count of robbery in the first degree. During the plea

hearing, Movant acknowledged he understood that by pleading guilty he was giving up his right

to a jury trial. Movant stated no one made any threats or promises to him in exchange for the

guilty plea. Movant acknowledged he was pleading guilty of his own free will with a full

understanding of the charges and consequences of the guilty plea. The State recited the factual

basis for the plea as: Movant and Defendant Walter Bell forcibly stole a purse in the possession

of Jaroslawa Williams, an eighty-five-year-old woman, and in the course thereof caused serious

injury to Ms. Williams. During the incident, Movant put Ms. Williams in a chokehold, and Ms.

Williams fell down the steps as she struggled for her purse. Ms. Williams suffered fractures to

her facial bones, a separated shoulder, and several other injuries, which have left her homebound.

Movant acknowledged the acts set out by the State as true.

           The plea court informed Movant that his range of punishment for the crime was

anywhere from a minimum of ten years to thirty years or life imprisonment. Movant

acknowledged he understood. The plea court informed Movant that the State was recommending
2
    All further statutory references are to RSMo 2000 as supplemented, unless otherwise indicated.

                                                           2
a sentence of seventeen years’ imprisonment. Movant acknowledged he understood. Movant also

informed the court that plea counsel told him that the State was recommending a sentence of

seventeen years’ imprisonment. Movant further acknowledged that: he reviewed the police report

with plea counsel; he discussed with plea counsel whether to go to trial or plead guilty; plea

counsel complied with all of his requests; and he was satisfied with plea counsel’s services. The

plea court accepted Movant’s guilty plea, finding it to have been made voluntarily and

intelligently.

           During the sentencing hearing, Movant’s aunt, Kesha Pittman, asked to address the court

on Movant’s behalf. The court told Movant’s aunt that he pleaded guilty to “choking and

repeatedly striking the victim to the extent that then [sic] she nearly died and was in intensive

care.” Movant again reiterated that he had no complaints concerning counsel’s representation.

Movant further acknowledged that his attorney explained the range of punishment for the crime

was ten to thirty years’ imprisonment. The court found that “there is no probable cause to find

ineffective assistance in this case.” The court then sentenced Movant to seventeen years’

imprisonment in the Missouri Department of Corrections.

           On March 14, 2014, Movant timely filed a pro se Rule 24.035 motion. On September 5,

2014, counsel entered her appearance and requested an additional thirty days to file an amended

Rule 24.035 motion. The court granted counsel’s request for additional time. A September 29,

2014 docket entry for the trial court states, “The above-referenced case 3 was heard on November

18, 2013 and January 24, 2014 and has been transcribed and is now maintained by: [the St. Louis

City court reporter].” 4 It is unclear from the record when the complete transcript was filed in the

trial court.


3
    Case number 1322-CR01502.
4
    The plea hearing took place on November 18, 2013, and the sentencing hearing took place on January 24, 2014.

                                                          3
       On June 10, 2015, counsel filed an amended Rule 24.035 motion. On July 8, 2015, the

motion court entered its findings of fact, conclusions of law, and order, finding Movant timely

filed the amended motion and denying Movant’s motion without an evidentiary hearing. Movant

appeals.

                                    III. Standard of Review

       Our review of the denial of a Rule 24.035 motion is “limited to a determination of

whether the findings and conclusions of the trial court are clearly erroneous.” Rule 24.035(k);

Weeks v. State, 140 S.W.3d 39, 44 (Mo. banc 2004). The motion court’s findings of fact and

conclusions of law are deemed clearly erroneous only if, after reviewing the entire record, we are

left with a definite and firm impression that a mistake has been made. Brooks v. State, 242

S.W.3d 705, 708 (Mo. banc 2008). “A movant has the burden to show by a preponderance of the

evidence that the motion court clearly erred in its ruling.” Roberts v. State, 276 S.W.3d 833, 835

(Mo. banc 2009).

       To succeed in a post-conviction claim for ineffective assistance of counsel, Movant must

demonstrate by a preponderance of the evidence that: (1) counsel failed to exercise the

customary skill and diligence of a reasonably competent attorney under similar circumstances;

and (2) counsel’s deficient performance prejudiced him. Smith v. State, 370 S.W.3d 883, 885

(Mo. banc 2012); Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy the first prong,

Movant must “overcome a strong presumption that counsel’s conduct was reasonable and

effective” by pointing to “specific acts or omissions of counsel that, in light of all the

circumstances, fell outside the wide range of professional competent assistance.” Zinc v. State,

278 S.W.3d 170, 176 (Mo. banc 2009) (internal citation omitted). To satisfy the second prong,




                                                4
Movant must prove that, “absent the claimed errors, there is a reasonable probability that the

outcome would have been different.” Id.

       To show he is entitled to an evidentiary hearing on his Rule 24.035 motion, Movant must

demonstrate that (1) his motion alleged facts, not conclusions, warranting relief; (2) the facts

alleged are not refuted by the record; and (3) the allegations resulted in prejudice. Wilkes v. State,

82 S.W.3d 925, 928 (Mo. banc 2002). By pleading guilty, a movant waives “any claim that

counsel was ineffective except to the extent that the conduct affected the voluntariness and

knowledge with which the plea was made.” Worthington v. State, 166 S.W.3d 566, 573 (Mo.

banc 2005). If an examination of the guilty plea proceedings directly refutes a movant’s claim

that his plea was involuntary, then the movant is not entitled to an evidentiary hearing. Guynes

v. State, 191 S.W.3d 80, 83 (Mo. App. E.D. 2006); see also Rule 24.035(h).

                                           IV. Discussion

                                         A. Abandonment

       Before this Court can review the merits of the appeal, we must first determine whether

we are required to remand this case to the motion court for an independent abandonment inquiry.

When post-conviction counsel is appointed to an indigent movant, an amended motion filed

beyond the deadline in Rule 24.035(g) can constitute abandonment of the Movant. See Moore,

458 S.W.3d at 825 (Mo. banc 2015); Price v. State, 422 S.W.3d 292, 298 (Mo. banc 2014). Rule

24.035(g) provides that an amended motion shall be filed within sixty days of the earlier of:

       (1) The date both a complete transcript consisting of the guilty plea and
       sentencing hearing has been filed in the trial court and counsel is appointed or (2)
       the date both a complete transcript has been filed in the trial court and an entry of
       appearance is filed by any counsel that is not appointed but enters an appearance
       on behalf of movant.




                                                  5
Rule 24.035(g) (emphasis added). The rule further provides, “The court may extend the time for

filing the amended motion for one additional period not to exceed thirty days.” Id.

       When counsel files an untimely motion, the motion court has a duty to conduct an

independent inquiry to determine whether abandonment occurred. Moore, 458 U.S. at 825. If the

motion court finds Movant has not been abandoned, the court should not permit the filing of the

amended motion and should adjudicate Movant’s initial pro se motion. Id. If the motion court

finds Movant was abandoned by counsel, the court must permit the untimely filing. Id. However,

when an independent abandonment inquiry is required but is not conducted, we must remand the

case because “the motion court is the appropriate forum to conduct such an inquiry.” Id. at 826.

       Here, counsel’s entry of appearance was filed on September 5, 2014. It is unclear from

the record, however, the date that the complete transcript was filed as required under Rule

24.035(g). The only reference to the transcript in the record is a docket entry for September 29,

2014, which states, “The above-referenced case was heard on November 18, 2013 and January

24, 2014 and has been transcribed and is now maintained by: [the St. Louis City court reporter].”

We cannot ascertain from this docket entry whether the transcript was actually filed with the

court on September 29, 2014. Further, there is no file stamp date on the certified copy of the

original transcript in the record on appeal.

       Under these circumstances, the motion court is required to make an independent inquiry

into whether Movant was abandoned by counsel. See Moore, 458 U.S. at 825. After reviewing

the motion court’s findings of fact, conclusions of law, and order, we find the motion court

considered the abandonment. The motion court wrote:

              Movant has timely filed a motion pursuant to Rule 24.035. Counsel
       entered her appearance on behalf of movant on September 5, 2014. The transcript
       of movant’s guilty plea and sentencing was not filed with the Court and lodged in
       the court file, and counsel filed an amended motion on June 10, 2015.

                                                6
In a footnote, the motion court further noted:

               Rule 24.035(g) provides that the time limit for filing an amended motion
       is triggered by the date both a complete transcript has been filed in the court and
       an entry of appearance is filed by any counsel that is not appointed but enters an
       appearance on behalf of movant. This Court finds that the amended motion in this
       case was timely filed.

The record supports an inference that the motion court reached an independent abandonment

inquiry as required under Moore and determined that because the complete transcript was never

filed, the time to file the amended motion had yet to begin. Thus, we find the motion court

properly determined that the amended motion was timely filed.

       Even if we find the motion court did not conduct an independent abandonment inquiry,

remand would be unnecessary because the motion court adjudicated all claims in Movant’s pro

se motion and amended motion. See Childers, 462 S.W.3d at 828; Mann v. State, 475 S.W.3d

208, 211-12 (Mo. App. E.D. 2015). The abandonment inquiry resolves the issue of which claim

should be adjudicated, the claims raised in pro se motion or the amended motion. Childers, 462

S.W.3d at 828. In Childers, this Court found movant’s amended motion was untimely filed but

proceeded to the merits of the case because the motion court entered its judgment, making

written findings of fact and conclusions of law on each of the claims in movant’s pro se motion

and amended motion. Id. This Court found that “in situations where all of the claims in both the

pro se and amended motion have been adjudicated with written findings of fact and conclusions

of law, remand would be pointless.” Id. (emphasis in original).

       Here, like Childers, we find the motion court adjudicated all of the claims in Movant’s

pro se motion and amended motion. In its findings of fact and conclusions of law, the motion

court addressed both claims of ineffective assistance of counsel in Movant’s amended motion,

finding the claims were without merit and denying an evidentiary hearing. The motion court also

                                                 7
reviewed each claim in Movant’s pro se motion, and made express written findings and

conclusions that those claims too were without merit. Thus, we find that remand would be

pointless and proceed to review the merits of Movant’s appeal.

                                            B. Point I

       In his first point on appeal, Movant argues the motion court erred in denying his Rule

24.035 motion without an evidentiary hearing because he alleged facts, not refuted by the record,

which would entitle him to relief on his claim that plea counsel was ineffective for advising him

that if he entered a plea of guilty, the court would sentence him to ten years’ imprisonment.

       In his motion, Movant alleged that he wanted to proceed to trial, but plea counsel told

him he could be sentenced to a maximum of thirty years or life imprisonment. Movant alleged

that plea counsel told him that if he entered a plea of guilty, the court would only sentence him to

ten years’ imprisonment. Movant alleged that he was prejudiced by plea counsel’s advice

because had he known the court would sentence him to seventeen years’ imprisonment, he would

not have pleaded guilty but would have insisted on going to trial. We disagree.

       We find Movant fails to establish his guilty plea was involuntary because the claim is

directly refuted by the record of the guilty plea proceeding and the sentencing proceeding. A

movant’s claim that counsel misled him as to his sentence is unsupported by the record when

movant affirmatively states at the plea hearing that he is fully aware of the consequences of his

plea. See Cain v. State, 859 S.W.2d 715, 717 (Mo. App. E.D. 1993). “Receiving a longer

sentence than hoped does not render a plea involuntary.” Id. The record of the plea proceeding

reflects that both plea counsel and the plea court specifically informed Movant of the range of

punishment. The following colloquy occurred at the plea hearing:

       COURT: Do understand you [sic] are charged with a Class A felony in this case?
       MOVANT: Yes, ma’am.

                                                 8
       COURT: What is your understanding of the range of punishment for a Class A
       felony?
       MOVANT: What I think to be my punishment?
       COURT: Not what you think your time should be, what the law says your time
       should be, what the range is?
       MOVANT: Thirty to life.
       COURT: Anywhere from 10 years in the Missouri Department of Corrections at
       a minimum up to 30 years or life imprisonment. Do you understand that?
       MOVANT: Yes, ma’am.
       COURT: The State is recommending you spend 17 years in the Missouri
       Department of Corrections. You understand that?
       MOVANT: Yes, ma’am.
       COURT: Because it’s an open plea the Court can consider the entire range of
       punishment, which means anywhere from ten years suspended execution of
       sentence all the way up to 30 years or life in the Missouri Department of
       Corrections. Do you understand that?
       MOVANT: Yes, ma’am.

Movant also informed the court that plea counsel told him the State was recommending a

sentence of seventeen years. When asked whether Movant was still requesting that the court

accept his guilty plea, Movant responded, “yes, ma’am.” Movant acknowledged no one made

any threats or promises to him in exchange for his guilty plea. Further, during the sentencing

hearing, Movant reiterated that plea counsel had explained that the range of punishment was

from ten to thirty years. Even after the court sentenced Movant to seventeen years’

imprisonment, Movant confirmed he had no complaints with plea counsel’s representation.

Accordingly, we find Movant was fully aware of the consequences of his plea, and Movant’s

claim that plea counsel was ineffective is without merit. Therefore, the motion court did not

clearly err in denying Movant’s claim. Point I is denied.

                                           C. Point II

       In his second point on appeal, Movant argues the motion court erred in denying his Rule

24.035 motion without an evidentiary hearing because he alleged facts, not refuted by the record,

which would entitle him to relief on his claim that plea counsel was ineffective for failing to



                                                 9
correct the sentencing court’s recitation of the facts because the court incorrectly recalled the

facts that Movant pleaded guilty to at his guilty plea hearing.

       In his motion, Movant alleged that at the sentencing proceeding, his aunt asked to address

the court. The court told Movant’s aunt that her nephew pleaded guilty to “choking and

repeatedly striking the victim to the extent that then [sic] she nearly died and was in intensive

care.” Movant alleged that he did not plead guilty to these facts at the guilty plea hearing. At the

guilty plea hearing, Movant pleaded guilty to putting Ms. Williams in a chokehold, and, during

the course of the struggle, she fell down the steps. Movant alleged that he was prejudiced by

counsel’s failure because had counsel corrected the court regarding the recitation of the facts, the

court would not have had grounds to sentence him to seventeen years’ imprisonment. We

disagree.

       During sentencing, the court must consider the nature and circumstances of the offense,

and the history and character of the defendant in order to render an appropriate sentencing

judgement. Section 557.036 RSMo. This provision “imposes upon the courts of this state the

duty to undertake a case by case, defendant by defendant evaluation in order to fashion an

appropriate punishment ‘which not only fits the crime but which also fits the criminal.’” State v.

Brewster, 836 S.W.2d 9, 15 (Mo. App. E.D. 1992) (citing Thurston v. State, 791 S.W.2d 893,

897 (Mo. App. E.D. 1990)).

       Here, the sentencing court based its decision on the nature of the crime, including the

undisputed seriousness of the injuries the victim suffered. The court also looked to the history

and character of the defendant, stating:

       [Y]ou had just gotten out for the exact same conduct. In addition, you were the
       initial aggressor. And you not only destroyed the victim’s life, you also destroyed
       your supposed friend’s life by picking another person who was susceptible to



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          doing what you told him to do and now he’s going to the penitentiary for ten
          years.

Further, the court relied on the sentencing assessment report and the State’s sentencing

recommendation to reach its decision. Thus, we find the court did have grounds to sentence

Movant to seventeen years’ imprisonment, and Movant’s claim that he was prejudiced is without

merit. Accordingly, the motion court did not clearly err in denying Movant’s claim. Point II is

denied.

                                          V. Conclusion

          Finding no error, we affirm the motion court’s order denying Movant’s Rule 24.035 post-

conviction relief motion without an evidentiary hearing.




                                                            ____________________________
                                                            Angela T. Quigless, Judge


Philip M. Hess, P.J., and
Gary M. Gaertner, Jr., J., Concurs.




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