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DIVISION FOUR
THOMAS VENTIMIGLIA, ) No. ED101900
)
Appellant, ) Appeal from the Circuit Court
) ofthe City of St. Louis
vs. )
)
STATE OF MISSOURI, ) Hon. David L. Dowd
)
Respondent. ) FILED: August 25, 2015

Introduction

Appellant Thomas Ventimiglia (“Ventimiglia”) appeals from the judgment of the motion
court denying his Rule 24.035I motion for post—conviction relief without an evidentiary hearing.
Ventimiglia pleaded guilty to all charges in two cases brought against him and was sentenced to
twenty years’ imprisonment by the trial court. On appeal, Ventimiglia contends that the motion
court erred in denying his Rule 24.035 motion without an evidentiary hearing because he alleged
facts warranting relief that were not clearly refuted by the record. First, Ventimigiia contends
that plea counsel rendered ineffective assistance of counsel by assuring Ventimiglia if he entered
blind guilty pleas on all counts in both cases against him, the trial court would sentence him to

the long-term drug treatment program pursuant to Section 217 362.2 Second, Ventimiglia avers

1 All rule references are to M0. R. Civ. P. (2014).
2 All statutmy references are to RSMo. 2000.

 

 

that plea counsel rendered ineffective assistance by pressuring Ventimiglia to plead guilty even
though Ventimiglia wanted to proceed to trial. Ventimiglia maintains that plea counsel’s
ineffective assistance rendered his guilty plea involuntary, unknowing, and unintelligent.
Because Ventiiniglia’s claim that his guilty plea was involuntary is directly refuted by the guilty
plea record, we afﬁrm the judgment of the motion court.
Factual and Procedural History

On April 26, 2012, Ventimiglia pleaded guilty to one count of second-degree robbery,
two counts of second-degree robbery, one count of stealing over $500, and one count of resisting
arrest in Cause No. l lZZ-CR02470—01. Ventimiglia also pleaded guilty to one count of second-
degree burglary and two counts of stealing over $500 in Cause No. ll22-CR5426-01. On June
21, 2012, the trial court sentenced Ventimiglia as a persistent felony offender to a total of twenty
years’ imprisonment.

Ventimiglia pleaded guilty to each of the charges in both causes of action on April 26,
2012. At the outset of the plea hearing, the trial court clariﬁed, and plea counsel conﬁrmed, that
Ventimiglia intended to enter blind guilty pleas “with the understanding that the Court is going
to ask for a Pre-Sentence Investigation Report.” Plea counsel informed the trial court that
Ventimiglia planned to plead guilty and would request a sentencing assessment report (“SAR”)
as well as screening for the long-term drug treatment program. Plea counsel conﬁrmed with the
trial court that the drug court already had agreed to accept Ventimiglia into the post—plea drug
court treatment program, but that the trial court had “rejected that option.” Plea counsel stated
that she had discussed the trial court’s decision with Ventiiniglia, and that he fully understood

that the trial court had rejected the drug court treatment program option.

 

Following a guilty plea, ineffective assistance of counsel is only relevant to the extent it
affects the voluntariness of a movant’s plea. Ventimiglia is not entitled to an evidentiary hearing
if an examination of the guilty plea proceedings directly refutes that his plea was involuntary.
CLin, 859 S.W.2d at 717. Further, where a movant claims a mistaken belief about a sentence, the
relevant test is whether there is a reasonable basis in the record to support that belief. Allen v.
gage, 403 S.W.3d 678, 680-81 (Mo. App. ED. 2013). Mistaken beliefs about sentencing may
affect a movant’s ability to knowingly enter a plea of guilty, but only if the belief is reasonable
and is based upon a positive representation upon which the movant is entitled to rely. Jenkins v.
gate, 9 S.W.3d 705, 708 (Mo. App. SD. 1999).

Here, the plea and sentencing hearing transcripts directly refute Ventimigiia’s assertion
that his guilty plea was involuntary. To the contrary, Ventimiglia’s responses to the trial court’s
numerous and speciﬁc inquiries demonstrate that his guilty plea was made voluntarily and with a
full understanding of the attendant consequences, which included the possibility of long-term
incarceration. The trial court explained that the purpose of the SAR was to assist the court in
determining whether to sentence Ventimiglia to prison or to place him on probation or in a drug
treatment program. The trial court also explicitly asked Ventimiglia whether he understood that
it was “entirely up to {the trial court]” to decide whether he would be sentenced to prison or
placed on probation following receipt of the SAR. Ventimiglia not only conﬁrmed he
understood this, but also stated he understood that even if the SAR recommended probation or
drug treatment, the trial court was not required to follow that recommendation and could still
sentence Ventimiglia to prison. In addition to these statements, Ventimiglia plainly and clearly
denied that anyone had promised that he would receive probation or any certain sentence if he

pleaded guilty. Ventimiglia openly confirmed that he understood he could not “take back” his

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guilty plea should the trial court decide not to place him on probation or in a drug program, but
instead sentence him to prison. Ventimiglia also stated that no threats or promises had been
made to him to induce his guilty plea, a statement he repeated at the sentencing hearing.
Ventimiglia additionally conﬁrmed that he understood the constitutional rights he was giving up
by pleading guilty, and assured the trial court, before entering his plea, that he was doing so
voluntarily and of his own free will.

Our review of the plea hearing and sentencing transcripts reveals there was no reasonable
basis in the record for Ventimiglia to believe he was in any way guaranteed that he would be
sentenced to the long-term drug treatment program if he pleaded guilty. We agree with the
conclusion reached by the motion court— that the trial court “could not have made it more clear,
prior to the acceptance of the pleas, that [Ventimiglia] was not assured of such a disposition even
if the sentencing assessment report recommended his placement in the program and even if he
was accepted into the program.” The record unequivocally reﬂects that Ventimiglia understood
this stark reality prior to entering his guilty plea. The trial court speciﬁcally explained to
Ventimiglia that the purpose of obtaining an SAR was to assist the court in deciding whether to
sentence Ventimiglia to prison or to probation and drug treatment. The trial court also
explained, and Ventimiglia confirmed he understood, that the sentencing decision was “entirely
up to [the trial court}?I Finally, Ventimiglia explicitly stated he understood the trial court could
choose to sentence him to prison rather than the drug treatment program, even if the SAR report
recommended such a sentence and even if the program accepted him. We find nothing in the
record supporting a conclusion that Ventimiglia’s belief that he would be sentenced to the long-

term drug treatment program upon pleading guilty was reasonable. Instead, the record clearly

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reﬂects that Ventimiglia understood the trial court retained complete discretion to decide his
sentence, with no particular sentence guaranteed to him.

The guilty plea proceedings directly refute both Ventimiglia’s claim that his plea was
involuntary and his claim that he reasonably believed he would be sentenced to the long-term
drug treatment program if he pleaded guilty. Accordingly, Ventimiglia was not entitled to an
evidentiary hearing on his claim of ineffective assistance of counsel and the motion court did not
clearly err in denying his Rule 24.035 motion without an evidentiary hearing. Point One is
denied.

II. Point Two — Pressure to Plead Guilty

Ventimiglia contends in Point Two that plea counsel was ineffective when, due to her
own lack of preparation, she pressured Ventimiglia to plead guilty when Ventimiglia wanted to
proceed to trial. Ventimiglia maintains that plea counsel’s conduct in pressuring him to plead
guilty rendered his guilty plea involuntary and that the motion court erred in denying his Rule
24.035 motion without an evidentiary hearing. We disagree.

Again, when a movant enters a guilty plea, a claim of ineffective assistance of counsel is
relevant only to the extent it affects the voluntariness of a movant’s plea. Ventimiglia is
therefore not entitled to an evidentiary hearing if an examination of the guilty plea proceedings
directly refutes that his plea was involuntary. gin, 859 S.W.2d at 717. “Statements made by
the defendant during sentencing refute ineffective assistance of counsel claims if the questions

and responses are ‘speciﬁc enough to refute conclusively the movant’s allegations.m Johnson v.
State, 921 S.W.2d 48, 51 (Mo. App. W.D. 1996) (quoting State v. Driver, 912 S.W.2d 52, 56

(Mo. banc 1995)).

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Here, Ventimiglia’s responses to the speciﬁc inquiries posed by the trial court at both the
plea and sentencing hearings directly refute Ventimiglia’s claim that his guilty plea was
involuntary due to pressure from plea counsel for Ventiiniglia to plead guilty. Ventimiglia
consistently assured the trial court that plea counsel had rendered satisfactory representation, and
repeatedly conﬁrmed that he was pleading guilty voluntarily and with a full understanding of the
charges against him and the legal effect of his guilty plea. At both the plea and sentencing
hearings, Ventimiglia confirmed that he had sufﬁcient time to discuss the charges with plea
counsel; that plea counsel had explained his legal rights to him and answered all of his questions;
that plea counsel did everything he asked her to do; and that he had no complaints about plea
counsel and was satisﬁed with her representation. Additionally, Ventimiglia stated that no
threats or promises had been made to induce him to plead guilty and assured the trial court that
he was entering his guilty plea voluntarily and of his own free will. Ventimiglia also confirmed
at the plea hearing that he understood his constitutional rights, including the right to trial, and
understood he was giving up those rights by virtue of pleading guilty. We further note that
Ventimigiia repeated his satisfaction with counsel’s effort and conduct in representing him at the
sentencing hearing, after Ventirniglia learned he had been denied probation and entry into a drug
treatment program and sentenced to twenty years in prison.

The guilty plea proceedings directly refute Ventimiglia's claim that his plea was rendered
involuntary as a result of plea counsel’s pressure and conduct. Accordingly, Ventiiniglia was not
entitled to an evidentiary hearing on his claim of ineffective assistance of counsel and the motion
court did not clearly err in denying his Rule 24.035 motion without an evidentiary hearing. Point

Two is denied.

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ow

The judgment of the motion court is afﬁrmed.

KiERT S. ODENWALD, Judge

Sherri B. Sullivan, P.J., concurs.
Patricia L. Cohen, J., concurs.

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During the plea hearing, plea counsel again informed the trial court that she would be
“requesting an SAR as well as screening for the long-term treatment program.” The trial court
explained to Ventimiglia how the SAR process would work, and explained that the purpose of
the SAR was to assist the trial court in deciding whether to “sentence [Ventimiglia] to the
Missouri Department of Corrections or place [him] on probation under the supervised
supervision of the Board of Probation and Parole or any drug treatment programs that they
recommend.” The trial court then asked Ventimiglia whether he understood that it was “entirely
up to [the trial court]” as to whether Ventimiglia was sentenced to a prison term or placed on
probation following receipt of the SAR. Ventimiglia conﬁrmed that he understood. Ventimiglia
also conﬁrmed he understood that even if the SAR recommended he be placed on probation or in
a drug treatment program, the trial court was not required to follow that recommendation and
could still sentence Ventimiglia to prison. The following exchange then occurred between the
trial court and Ventimiglia:

Trial Court: Has anyone promised you that you will get probation?

Ventimiglia: No, sir.

Trial Court: Has anyone promised you what sentence you will receive?

Ventimiglia: No, sir.

Triai Court: You understand that you cannot take back your guilty plea if I

decide not to put you on probation or place you in a drug program
and instead sentence you to a prison term? You understand that?

Ventimiglia: Yes, sir.

Trial Court: Is there anything at all about this that you don’t understand or have
questions about?

Ventimiglia: I understand everything fully.

 

Trial Court: Do you still want to proceed with your plea of guilty on these two
cases?

Ventimiglia: Yes, sir.

The trial court recited the charges against Ventimiglia, which Ventimiglia conﬁrmed he
understood. Ventimiglia also confirmed that he had sufﬁcient time to discuss the charges with
plea counsel. The prosecutor proceeded to describe the evidence the State would present with
respect to each of Ventimiglia’s cases should a trial he held. Ventimiglia stated that the
prosecutor accurately described the facts of each case and what he had done concerning each
charge against him.

The trial court then made a finding that Ventimiglia was a persistent offender based on
the prosecutor’s description of Ventimiglia’s prior convictions and his admission to those
convictions. The prosecutor outlined the range of punishment available for each charge against
Ventimiglia in each case. Ventimiglia conﬁrmed he understood the range of punishment for
each charge. The trial court proceeded to ask Ventimiglia a series of questions regarding plea
counsel’s representation:

Trial Court: You’ve had enough time to discuss both cases with your attorney
and all possible defenses you might have at trial?

Ventimiglia: Yes, sir.

Trial Court: Has your attorney explained all your legal rights to you?
Ventimiglia: Yes, Your Honor.

Trial Court: Has your attorney answered all your questions?

Ventimiglia: Yes, sir.

Trial Court: Has your attorney refused to do anything that you asked her to do?

Ventilniglia: No, sir.

 

 

 

Trial Court: Do you have any complaints with your attorney?

Ventimiglia: No, sir.

Trial Court: Are you satisﬁed with her services?

Ventimigiia: Yes, sir.

The trial court outlined the various constitutional rights Ventimiglia was relinquishing by
pleading guilty instead of proceeding to trial. Ventimiglia indicated he understood. Ventimiglia
conﬁrmed that he understood he was giving up those rights by pleading guilty. Ventimiglia
denied that anyone had threatened him or members of his family in order to induce him to plead
guilty, and stated that he was pleading guilty voluntarily and of his own free will to all of the
charges in both cases against him. Ventimiglia stated that he did not have any questions to ask
the trial court or plea counsel, and proceeded to enter his guilty plea. The trial court accepted
Ventimiglia’s guilty plea, found a factual basis for the plea, and concluded that the plea was
made “voluntarily and intelligently with a full understanding of the charges.”

Ventimiglia appeared before the trial court for sentencing on June 21, 2012. At the
sentencing hearing, the State’s sentencing recommendation was twenty years’ imprisonment for
each case, to run concurrently. Conversely, plea counsel requested that Ventimiglia be given the
opportunity to complete the tong—term drug treatment program. Plea counsel noted that
Ventimiglia had been screened and deemed to qualify for the drug court program. Plea counsel
alternatively requested a ten-year prison sentence. The trial court sentenced Ventimiglia to a
total of twenty years’ imprisonment.

The trial court explained Ventimiglia’s rights under Rule 24.035. When asked whether
he understood, Ventimigiia initially stated “I thought I could take these cases to trial if I got 20

years... I didn’t know I was going to be sentenced to 20 years.” The trial court reminded

 

Ventimiglia of his extensive testimony to the contrary at the plea hearing and further explained

Rule 24.035 in detail. Ventimiglia indicated he understood his rights under Rule 24.035.

Finally, the trial court asked Ventilniglia a series of questions concerning plea counsel’s

assistance. Ventimiglia confirmed that he had enough time to discuss his case fully with plea

counsel before pleading guilty, that he believed plea counsel represented him to the best of her

ability, and that plea counsel answered all of his questions. Ventimiglia additionally stated that

plea counsel did what he asked her to do and fuily explained his rights to him. The trial court

then had the following exchange with Ventimiglia regarding plea counsel’s performance:

Trial Court:

Ventimiglia:

Trial Court:

Ventimiglia:

Trial Court:

Ventimiglia:

Triai Court:

Ventimiglia:

Do you think she’s done a good job for you? Of course I recall
that [plea counsel} actually convinced the drug court to accept you
into drug court.

Yes, sir.

She asked the Probation and Parole [to] screen you for {the} long-
term drug treatment program. You understand she’s done that for
you? The Court rejected those options. Has your attorney made
any threats or promises to you to get you to plead guilty?

No, sir.

Do you have any complaints with your attorney?

No, sir.

Is there anything else you want to tell me about your attorney’s
representation before I decide whether or not I believe you’ve

received effective assistance of counsel?

No, sir.

The trial court found that Ventimiglia had been informed of and understood his rights under Rule

24.035, and found no probable cause to believe that Ventimiglia received ineffective assistance

of counsel.

Ventimiglia subsequently ﬁled a pro se Rule 24.035 motion for post~conviction relief.
Appointed counsel ﬁled an amended motion alleging that plea counsel was ineffective, rendering
Ventimiglia’s guilty plea involuntary and unknowing, in that plea counsel (I) assured
Ventimiglia he would be sentenced to the long—term drug treatment program if he entered blind
guilty pleas on all counts in both cases against him, and (2) pressured Ventimiglia to plead guilty
even though he wanted to proceed to trial. Ventimigiia also requested an evidentiary hearing.

In support of his ﬁrst allegation of ineffective assistance, Ventimigiia claimed that based
on his conversations with plea counsel, Ventimiglia reasonably believed he would be sentenced
to the long-term drug treatment program upon entering a blind guilty plea. Ventimiglia
maintained that he entered a guilty plea “because he truly believed he would be sentenced to the
long-term treatment program.” Ventimiglia insisted that although he told the trial court no one
had promised him a particular sentence to induce his guilty pica, he nevertheless believed that he
would be sentenced to the long—term drug treatment program. In support of his second allegation
of ineffective assistance, Ventimiglia asserted that he discussed with plea counsei his desire not
to plead guiity to one charge of second-degree robbery and one charge of second-degree
burgiary. Ventimiglia alleged that, prior to advising him to plead guilty, plea counsel had not
filed any motions or taken any depositions in preparation for trial or discussed the strengths and
weaknesses of the case with Ventimiglia. Ventimiglia maintained that after plea counsei told
him he could not win his cases, he reluctantly followed her advice and pleaded guilty because he
felt pressured, believing he had no other choice because plea counsei was not willing to “ﬁght
for him.”

On July 16, 2014, the motion court entered its Findings of Fact, Conciusions of Law and

Order den in Ventimi lia’s amended motion without an evidentiar hearin . The motion court
y g g Y 2%

 

concluded Ventimiglia’s ﬁrst claim was without merit, reasoning there was “no basis in the
record for [Ventimiglia] to have believed he would be sentenced to the long-term drug treatment
[program] if he pleaded guilty.” The motion court noted that the trial court “could not have
made it more clear, prior to the acceptance of the pleas, that [Ventimiglia] was not assured of
such a disposition even if the sentencing assessment report recommended his placement in the
program and even if he was accepted into the program.” The motion court also found
Ventimiglia’s second claim to be refuted by the record and without merit, reasoning that
Ventimiglia told the trial court he had no complaints against plea counsel and plea counsel had
fully explained his rights and done everything he asked her to do. The motion court noted that
“[c]ounsel is not ineffective for advising his client of the strength of the state’s case and that
conviction is likely, and where, as a result of the counsel’s advice, the movant pleads guilty.”
This appeal follows.
Points on Appeal

Ventimiglia presents two points on appeal, each asserting that the motion court erred in
denying his Rule 24.035 motion for post—conviction relief without an evidentiary hearing. First,
Ventimiglia contends that plea counsel rendered ineffective assistance of counsel by assuring
Ventimiglia if he entered blind guilty pleas on all counts in both cases against him, the trial court
would sentence him to the long-term drug treatment program pursuant to Section 217.362.
Ventimiglia maintains that plea counsel’s ineffective assistance rendered his guilty plea
involuntary, unknowing, and unintelligent, and that he would not have pleaded guilty had he
known the trial court would not sentence him to the long-term drug treatment program. Second,
Ventimiglia avers that plea counsel rendered ineffective assistance by pressuring Ventimiglia to

plead guilty, due to her own lack of preparation, even though Ventimiglia wanted to proceed to

 

trial. Ventimiglia maintains that plea counsel’s ineffective assistance rendered his guilty plea
involuntary, unknowing, and unintelligent. Ventimiglia argues that the facts alleged in his
motion for post-conviction relief are not refuted by the record, thereby mandating an evidentiary
hearing on his claims.
Standard of Review

Appellate review of the denial of a Rule 24.035 motion is limited to a determination of
whether the motion court's findings, conclusions, andjudgment are clearly erroneous.
Wooldridge v. State, 239 S.W.3d 151, 153-54 (Mo. App. ED. 2007). The motion court's
findings and conclusions are presumptively correct and will be overturned only when this court,
after reviewing the entire record, is left with a “definite and ﬁrm impression that a mistake has
been made.” Vaca v. State, 314 S.W.3d 331, 334 (Mo. banc 2010). After a guilty plea, our
review is limited to a determination of whether the movant’s plea was knowing and voluntary.
Loudermilk v. State, 973 S.W.2d 551,553 (Mo. App. ED. 1998).

Moreover, to be entitled to an evidentiary hearing on a post-conviction relief claim, a
movant must (1) allege facts, not conclusions, that, if true, would warrant relief; (2) the facts
alleged must raise matters not refuted by the record and ﬁles in the case; and (3) the matters

complained of must have resulted in prejudice to the movant. Barnett v. State 103 S.W.3d 765,

 

769 (Mo. banc 2003). An evidentiary hearing is not required if the ﬁles and records of the case
conclusively show that the movant is entitled to no relief. I_d. Where a movant alleges
ineffective assistance of counsel following a guilty plea, “[i]f an examination of the guilty plea

proceedings directly refute that movant’s plea was involuntary, movant is not entitled to an

evidentiary hearing.” Cain v. State, 859 S.W.2d 715, 717 (Mo. App. ED. 1993).

Discussion

In order to prevail on a claim of ineffective assistance of counsel, a movant must show by
a preponderance of the evidence (1) that his attorney failed to exercise the customary skill and
diligence that a reasonably competent attorney would perform under similar circumstances, and
(2) that he was prejudiced thereby. Sanders V. State, 738 S.W.2d 856, 857 (Mo. banc 1987)
(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). When a ciaim of ineffective
assistance of counsel follows a guilty plea, the claim of ineffective assistance is “immaterial
except to the extent it impinges on the voluntariness and knowledge with which a [movant] pled
guilty.” CLin, 859 S.W.Zd at 717. Prejudice exists if the movant can show that, but for counsel’s
ineffective assistance, he would have not pleaded guilty and instead would have insisted upon
going to trial. May v. State, 309 S.W.3d 303, 306 (Mo. App. ED. 2010).

In the context of a guilty plea, analysis of an ineffective assistance of counsel claim is
limited to whether the alleged ineffective assistance impinged on the defendant's ability to make
a knowing and voluntary plea of guilty. Evans v. State, 921 S.W.Zd 162, 164 (Mo. App. W.D.
1996). In other words, in order to prevail on an ineffective assistance of counsel claim following
a guilty plea, a movant “must establish a serious dereliction of duty that materially affected his
substantial rights and further Show that his guilty plea was not an intelligent or knowing act.” Id,
1. Point One — Drug Treatment Program

Ventimiglia’s ﬁrst point on appeal focuses on his allegation that plea counsel assured him
that the trial court would sentence him to the long-term drug treatment program if he entered a
blind guilty plea. Ventimiglia maintains that plea counsel's assurances rendered his guilty plea
involuntary and that the motion court erred in denying his Rule 24.35 motion without an

evidentiary hearing. We are not persuaded.

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