                  In the Missouri Court of Appeals
                          Eastern District

                                   DIVISION TWO



MICKEY H. MITCHELL,                      )      No. ED100563
                                         )
      Movant/Appellant,                  )      Appeal from the St. Louis County
                                         )      Circuit Court
vs.                                      )
                                         )       Honorable Michael T. Jamison
STATE OF MISSOURI,                       )
                                         )      Filed: August 26, 2014
      Respondent.                        )


                                      Introduction

      Mickey H. Mitchell (Movant) appeals the motion court‟s denial, without an

evidentiary hearing, of his Rule 24.035 amended motion for post-conviction relief.     In

his sole point relied on, Movant contends that the motion court erred by denying his

motion without an evidentiary hearing because counsel pressured him into entering his

guilty plea, thereby rendering his plea involuntary, and that, but for counsel‟s deficient

performance, Movant would not have pleaded guilty but would have proceeded to trial.

We affirm.
                                             Factual Background

           In December 2003, Movant had deviate sexual intercourse with an eight-year-old

victim. Once the victim disclosed the abuse, police contacted Movant and Movant, after

receiving his Miranda1 rights, confessed to the sexual contact. Movant was indicted in

April 2010 and, in May 2011, Movant entered a blind plea of guilty to first-degree

statutory sodomy.2 The circuit court accepted the plea and, at a later hearing, sentenced

Movant to 15 years‟ imprisonment in the Department of Corrections.

           In August 2011, Movant filed a pro se Rule 24.035 motion seeking post-

conviction relief. Subsequently, appointed counsel filed an amended motion alleging that

defense counsel‟s performance was “ineffective for pressuring [Movant] to enter a plea of

guilty even though [Movant] wanted to proceed to trial to prove his innocence” and that

“[b]ut for counsel‟s ineffectiveness, [Movant] would not have entered a plea of guilty,

but would have insisted on going to trial.” The motion court denied the motion without

an evidentiary hearing, finding that “the record clearly refutes Movant‟s claim that he

was pressured into pleading guilty . . . .” This appeal followed.

                                             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




1
    Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966).
2
    Movant‟s plea was “blind” because there was no plea agreement between the State and Movant.


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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 682, 684 (Mo. App. E.D. 2008).

                                       Discussion

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

his motion for post-conviction relief without an evidentiary hearing because counsel

rendered deficient performance by pressuring Movant into pleading guilty.          Movant

maintains that counsel‟s performance rendered his guilty plea involuntary, unknowing,

and unintelligent and, but for counsel‟s advice, Movant would not have pleaded guilty

and would have proceeded to trial. In response, the State asserts that 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 performance.

       “In order to be entitled to an evidentiary hearing on a Rule 24.035 motion, the

movant must satisfy a three-prong test: (1) he must allege facts not conclusions 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 that the record

conclusively establishes that the movant is not entitled to relief, then the motion court

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

       “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).


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“When pleading guilty, a movant 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 S.W.3d 566, 569 (Mo. App. E.D. 2013)

(citation 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.

       Further, a movant is not entitled to a post-conviction evidentiary hearing on an

ineffective assistance of counsel claim if the guilty plea proceedings directly refute the

movant‟s claims that the plea was involuntary. Wilder v. State, 301 S.W.3d 122, 127

(Mo. App. E.D. 2010). “To justify the denial of an evidentiary hearing on an ineffective

assistance of counsel claim, the record must be „specific enough to refute conclusively

the movant‟s allegation.‟” Nichols, 409 S.W.3d at 569 (citation omitted). “[A] motion

court properly denies an evidentiary hearing on a motion for post-conviction relief where

the movant repeatedly assured the plea court that he was satisfied with counsel‟s

representation and that counsel did everything he requested and the movant was given

ample opportunity to express his duress to the court.” Id. at 570 (citation and quotations

omitted).

       At the plea hearing, Movant indicated that defense counsel had “advised [Movant]

as to all aspects of this case, including [Movant‟s] legal rights” and that Movant had had

“enough time before deciding” that he wanted to plead guilty. When asked whether he

had had “sufficient time” to discuss the case with his attorney, Movant initially answered,

“Not really,” but then clarified that he had had enough time to “just now” discuss the case


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with his attorney. Movant also repeatedly confirmed that he understood that, by pleading

guilty, he was waiving his rights to a jury trial, to be presumed innocent, and to present

and confront witnesses. After the State announced the evidence against Movant, which

Movant affirmed to be substantially true and correct, the following colloquy occurred:

       THE COURT: Do you understand that the Court will not accept a plea of
       guilty from anyone who claims to be innocent?

       [MOVANT]: Yes, your honor.

       THE COURT: Have any threats or promises been made to you to induce
       you to plead guilty?

       [MOVANT]: No, Your Honor.

After Movant again admitted to the circuit court that he committed the offense, the circuit

court asked defense counsel whether there was “any reason why the Court should not

accept [Movant‟s] plea of guilty?” to which defense counsel responded, “No, Your

Honor.” When the circuit court asked Movant whether he had any questions, Movant

responded, “No, Your Honor.” The circuit court then accepted Movant‟s plea as “freely,

voluntarily and intelligently made with a full understanding of the charge and the

consequences of the plea . . . .”

       Two months later at the sentencing hearing, the circuit court asked Movant

whether he had anything to say before the court announced the sentence, to which

Movant responded, “No.”         Regarding counsel‟s performance, Movant testified as

follows:

       THE COURT: Did you have sufficient time to discuss this case with your
       attorney prior to entering your plea of guilty in this matter?



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      [MOVANT]: Yeah.

      THE COURT: Did your attorney do the things that you asked him to do
      prior to entering your plea of guilty?

      [MOVANT]: Yes.

                                     *     *      *

      THE COURT: Other than the plea, did your attorney communicate any
      threats or promises to you to induce you to enter your plea of guilty?

      [MOVANT]: No.

      THE COURT:        Are you satisfied with the services rendered by your
      attorney?

      [MOVANT]: Yes.

      THE COURT: Is there anything you wish to add concerning the assistance
      you received from your attorney?

                                     *     *      *

      [MOVANT]: No. He did good.

      THE COURT: Is there anything that you wish me to consider concerning
      your representation by your attorney before I determine whether or not
      probable cause exists to believe that you received ineffective assistance of
      counsel?

      [MOVANT]: No. I‟m okay.


      Movant‟s answers to the circuit court‟s questions at both the plea and sentencing

hearings directly refute Movant‟s assertion that defense counsel pressured Movant to

enter his plea of guilty. At the plea hearing and again at the sentencing hearing, Movant

indicated that he had had sufficient time to discuss the case with defense counsel before

deciding to plead guilty. Movant also confirmed at both hearings that no threats or


                                           6
promises had been made to induce him to enter his guilty plea, which directly refutes

Movant‟s claim that his plea was the result of pressure from counsel. Moreover, the

circuit court gave Movant repeated opportunities at both the plea and sentencing hearings

to inform the court that he had been pressured into pleading guilty. Movant, however,

never indicated that his plea was the result of coercion or “pressure” and instead

unequivocally indicated that he was fully satisfied with counsel‟s performance.

       Despite Movant‟s repeated assertions that he was satisfied with counsel‟s

performance and that his plea had not been induced by threats or promises, Movant

asserts that the facts of the instant case warrant relief because the circuit court did not

specifically ask him whether he had been “pressured” into entering his plea. This fact

does not nullify the abundant evidence on the record directly refuting Movant‟s claim

that his plea was involuntarily made. It is true that “[a] negative response to a routine

inquiry regarding whether any promises or threats had been made to induce a guilty plea

is too general to encompass all possible statements by counsel to his client.” Conger v.

State, 356 S.W.3d 217, 222 (Mo. App. E.D. 2011) (citation and quotations omitted).

However, in a case like the present, where Movant repeatedly indicated that his plea was

not induced by threats or promises, affirmed that he was satisfied with counsel‟s

assistance, made assurances that counsel did everything Movant requested, and made no

complaints despite being given “ample opportunity to express his duress” to the court, an

evidentiary hearing is properly denied. See id. (citation omitted).

       Under the circumstances, the record clearly refutes Movant‟s claim that counsel

pressured him into pleading guilty. Accordingly, no evidentiary hearing was required


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and the motion court did not err by denying Movant‟s post-conviction motion without an

evidentiary hearing. Point denied.

                                     Conclusion

       The judgment is affirmed.


                                       ________________________________
                                       Philip M. Hess, Judge


Sherri B. Sullivan, P.J. and
Mary K. Hoff, J. concur.




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