JOSEPH J. SAVICK,                           )
                                            )
              Movant-Appellant,             )
                                            )
v.                                          )       No. SD33303
                                            )       Filed: 5-19-15
STATE OF MISSOURI,                          )
                                            )
              Respondent-Respondent.        )

           APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                     Honorable Thomas E. Mountjoy, Circuit Judge

AFFIRMED

       Joseph Savick (Savick) appeals from an order denying his amended Rule 29.15

motion to set aside four convictions and sentences imposed after a jury trial.1 Because

the motion court’s decision to deny relief after an evidentiary hearing was not clearly

erroneous, we affirm.

       Savick was charged by information with committing the following crimes on

September 28, 2006:     the class D felony of driving while revoked, in violation of

§ 302.321 (Count I); the class B felony of driving while intoxicated as a chronic offender


       1
         All rule references are to Missouri Court Rules (2015). All statutory references
are to RSMo Cum. Supp. (2006) unless otherwise indicated.
in violation of § 577.010 RSMo (2000), § 577.023.1(2) and § 577.023.5 (Count II); the

class C felony of assault on a law enforcement officer, in violation of § 565.082 (Count

III); and the class D felony of resisting arrest, in violation of § 575.150 (Count IV). Only

Count III charged Savick as a prior and persistent offender.

       Thereafter, Savick entered into a plea agreement. In exchange for Savick’s plea

of guilty to each of the four counts, the prosecutor agreed to recommend concurrent

sentences of four years on the two class D felonies and five years on the other two

counts.2

       At the plea hearing, the prosecutor began to outline the factual basis for the pleas

by summarizing the evidence that could be presented to prove the charges. Defense

counsel Anissa Bluebaum (Bluebaum) immediately interrupted and asked if they could

“take a break” so she could talk to Savick. After a recess, Bluebaum informed the court

that Savick was withdrawing his plea and wanted a trial setting.          Based upon that

announcement, the prosecutor revoked his plea offer. Thereafter, the prosecutor amended

the information to allege in Counts I, II and IV that Savick was a prior and persistent

offender.

       At trial, a jury found Savick guilty of all four counts. At sentencing, Bluebaum

noted that the prosecutor had made an offer to recommend certain sentences if the

charges were resolved by guilty plea. As Bluebaum reminded the court, however, “that

was not anything [Savick] would consider because he was not guilty.” Bluebaum also


       2
          The four-year and five-year terms were within the range of punishment for the
class D, C and B felonies originally charged. See § 558.011.1(4) (class D felony, a term
not to exceed four years); § 558.011.1(3) (class C felony, a term not to exceed seven
years); § 558.011.1(2) (class B felony, a term not less than five years); see also
§ 558.016.7(3) (enhancing a persistent offender from a class C to B felony).



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told the court that, after the trial, Savick had said he was glad he did not plead guilty

because he had stood up for himself. Savick likewise addressed the court and said, “I

couldn’t plead guilty to the charges I wasn’t guilty of.” The court sentenced Savick as a

persistent offender to concurrent sentences of seven years for driving while revoked,

seven years for resisting arrest, 10 years for assault on a law enforcement officer and 10

years for driving while intoxicated.     This Court affirmed Savick’s convictions and

sentences on direct appeal. State v. Savick, 347 S.W.3d 147 (Mo. App. 2011).

       Savick sought post-conviction relief via timely filed pro se and amended Rule

29.15 motions.3 The amended motion alleged that trial counsel had been ineffective for

“misadvising [Savick] as to the terms of the original plea offer” with respect to “the prior

and persistent offender status.”    The motion further alleged that, had trial counsel

properly advised Savick, he “would have entered his pleas of guilty pursuant to the

agreement” and would have been sentenced accordingly.

       The motion court conducted an evidentiary hearing on the motion. Savick and

Bluebaum both testified.     In Bluebaum’s testimony, she denied that she misadvised

Savick about the terms of his plea offer. Bluebaum said Savick backed out of the plea

agreement because he believed he was not guilty:

       He was very adamant throughout the representation that he wanted a jury
       trial. Throughout the course of the representation, I had told Mr. Savick
       several times that he was offered a very good deal, based on what he was
       facing or could be facing, but it was one of those situations where my


       3
          Savick filed his pro se motion on September 2, 2011. Mandate issued in his
direct appeal on September 6, 2011. Therefore, the pro se motion was filed within the
90-day time period set by Rule 29.15(b). Counsel was appointed September 13, 2011.
After receiving a 30-day extension, appointed counsel filed the amended motion on
Monday, December 12, 2011, which was within the 90-day total limit required under
Rule 29.15(g). See also Rule 44.01(a).



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       review of the evidence and talking with him, he wanted a trial; he wanted
       to take his chances at trial.

In Savick’s testimony, he admitted that Bluebaum said he should take the plea offer and

that he decided not to do so. According to him, he was “confused” about the offer

because Bluebaum told him “there would not be prior and persistent offender status

placed on [him].”

       Thereafter, the motion court entered its findings of fact, conclusions of law and

order denying relief. The court found Bluebaum’s testimony “credible.” The motion

court believed Bluebaum’s testimony that she counseled Savick to take the offer and that

he rejected the offer because he believed “he was innocent and wanted to take the case to

trial.” The motion court concluded Savick failed to establish that: (1) trial counsel

provided incompetent advice; and (2) Savick rejected the plea offer on the basis of

ineffective assistance of counsel. This appeal followed.

       Savick bore the burden of proving his allegations. Rule 29.15(i). “A strong

presumption exists that trial counsel was effective and an appellant bears a heavy burden

of overcoming that presumption by a preponderance of the evidence.” State v. Tokar,

918 S.W.2d 753, 761 (Mo. banc 1996). Our review is “limited to a determination of

whether the findings and conclusions of the trial court are clearly erroneous.”

Rule 29.15(k); Williams v. State, 168 S.W.3d 433, 439 (Mo. banc 2005). This Court will

determine that such clear error exists only if, after reviewing the entire record, we are left

with “the definite and firm impression that a mistake has been made.” Williams, 168

S.W.3d at 439. On a claim of ineffective assistance of counsel, the motion court is free to

believe or disbelieve any evidence, whether contradicted or undisputed. Vanzandt v.




                                              4
State, 212 S.W.3d 228, 231 (Mo. App. 2007). “This Court defers to the motion court on

matters of credibility.” Id.

       The test for determining whether defense counsel was ineffective during plea

negotiations is the two-prong test laid out in Strickland v. Washington, 466 U.S. 668

(1984). See Lafler v. Cooper, --- U.S. ----, 132 S.Ct. 1376 (2012); Missouri v. Frye, ---

U.S. ----, 132 S.Ct. 1399 (2012); Williams v. State, 367 S.W.3d 652, 654 (Mo. App.

2012). “Movant must show first, that his counsel’s performance was deficient, and

second, that Movant was prejudiced thereby.” Williams, 367 S.W.3d at 654; see

Strickland, 466 U.S. at 687.4 Savick could not establish Strickland prejudice unless he

first proved there was a reasonable probability, but for counsel’s error, that he would

have accepted the prosecutor’s plea offer. See Lafler, 132 S.Ct. at 1385; Noland v. State,

413 S.W.3d 684, 684 (Mo. App. 2013); see also Smith v. State, 443 S.W.3d 730, 735-36

(Mo. App. 2014).

       Savick’s single point contends the motion court clearly erred in denying his

motion for post-conviction relief because Bluebaum provided ineffective assistance of

counsel “by failing to adequately explain to [him] the terms of the State’s plea offer.”

Savick argues that he rejected the plea offer “based on counsel’s assurance that he would

not be sentenced as a prior and persistent offender, and [he] was ultimately sentenced to a

total of ten years in prison following his trial.” We find no merit in this argument.

       Savick failed to prove that he was prejudiced by Bluebaum’s allegedly inadequate

explanation of the plea offer. The motion court did not believe Savick’s explanation for


       4
            Savick must satisfy both the performance and prejudice prongs of the
Strickland test to obtain relief. State v. Kinder, 942 S.W.2d 313, 335 (Mo. banc 1996).
If either prong is not met, the claim fails. Marschke v. State, 185 S.W.3d 295, 302 (Mo.
App. 2006). Consideration of the other prong is unnecessary. Id.

                                             5
why he rejected the offer. The motion court believed Bluebaum, who testified that

Savick rejected the plea offer because he believed he was innocent and wanted a jury

trial. Bluebaum’s testimony in this regard is also corroborated by the statements made by

Bluebaum and Savick at the sentencing hearing. The motion court simply did not believe

the contrary testimony given by Savick at the motion hearing, and we defer to the court’s

determination of credibility. Vanzandt, 212 S.W.3d at 231; see, e.g., Noland, 413 S.W.3d

at 686 (deferring to motion court’s credibility determination that movant would not have

pled guilty because according to counsel and the trial transcript, he did not want to plead

but proceed to trial). Therefore, Savick did not prove that he rejected the plea offer

because of Bluebaum’s allegedly inadequate explanation of its terms.

       For all of these reasons, Savick failed to prove that he was prejudiced as a result

of his allegation that he received ineffective assistance of counsel. Because Savick failed

to meet the prejudice prong of the test, we need not consider the performance prong. See

Marschke v. State, 185 S.W.3d 295, 302 (Mo. App. 2006). Accordingly, the motion

court did not clearly err in denying post-conviction relief to Savick. Point denied.

       After reviewing the entire record, we do not have a definite and firm impression

that a mistake was made. Therefore, the findings and conclusions of the motion court are

not clearly erroneous. See Rule 29.15(k); Williams, 168 S.W.3d at 439. The motion

court’s order denying Savick’s amended Rule 29.15 motion is affirmed.



JEFFREY W. BATES, J. – OPINION AUTHOR

DANIEL E. SCOTT, J. – CONCUR

WILLIAM W. FRANCIS, JR., C.J./P.J. – CONCUR




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