Martin v. State, SD 35498

568 S.W.3d 78

Jodi Danielle MARTIN, Movant-Appellant,

v.STATE of Missouri, Respondent-Respondent.

No. SD 35498

Missouri Court of Appeals, Southern District, Division One.

Filed: Feb. 21, 2019

MALEANER R. HARVEY, St. Louis, Mo, for Appellant.

ROBERT J. BARTHOLOMEW, JR., Jefferson City, Mo, for Respondent.

DON E. BURRELL, P.J.

Jodi Danielle Martin ("Movant") appeals the denial, without an evidentiary hearing, of her Rule 24.035¹ motion for post-conviction relief. In two points on appeal, Movant claims the trial court clearly erred in denying relief without holding an evidentiary hearing because: (1) "she alleged facts, not conclusions, which if proven," would establish that there was no factual basis for her conviction and therefore it was not knowing and voluntary; and (2) her plea counsel was ineffective for advising her to plead guilty without informing her of the nature of the charge and what the State would need to prove at trial. Because the record conclusively refutes Movant’s claims, we affirm.

Background

On November 13, 2013, the State charged Movant by information with eleven counts of the class-C felony of forgery, see section 570.090, and eleven counts of the class-C felony of passing a bad check, see section 570.120. On April 3, 2014, Movant pleaded guilty to the twelfth count of the information ("Count XII"), which charged the following:

[Movant], ... in violation of Section 570.120, ... committed the Class C Felony of passing bad checks , ... in that on or about March 21, 2013, in the County of Bollinger, State of Missouri, [Movant], with the purpose to defraud, passed and/or made a check in the amount of $60.00, drawn upon a nonexistent account with 1st State Midwest Bank, payable to Country Mart knowing that it would not be paid.

In exchange for her guilty plea, the State dismissed the other 21 charges.

The plea court’s description of the Count XII charge was:

[T]he State has alleged that on or about March 21^st of 2013 in Bollinger County, Missouri, you committed the Class C felony of passing bad checks in that you, with the purpose to defraud , passed or made a check in the amount of sixty dollars and drawn upon a non-existent account with First State Midwest Bank payable to Country Mart knowing that it would not be paid. (Emphasis added.)

The plea court then proceeded to question Movant about alleged facts that would support the elements of the charge. During that exchange, Movant told the court that she wrote the check on her grandmother’s account, that she received gas and cash in exchange for the sixty-dollar check, and it cost her nothing because it was a worthless check. Movant acknowledged that the account: (1) was in her grandmother’s name; (2) had been frozen since her grandmother’s death; (3) was the equivalent of "non-existent" because it was inactive; (4) no one could write a check on it; and (5) it did not exist for purposes of writing and paying checks. The plea court then accepted Movant’s plea of guilty, finding that she had admitted to conduct that satisfied all of the elements of the charged offense.

The plea court sentenced Movant to five years in the Department of Corrections, but it suspended execution of that sentence and placed Movant on a five-year term of probation. Movant’s probation was later revoked, and her sentence was executed on February 2, 2017. Movant’s amended motion for post-conviction relief was timely filed on October 4, 2017.² That motion included the same claims Movant now presents on appeal.

On March 28, 2018, the motion court found that Movant’s claims were conclusively refuted by the records and files in the case and denied her amended motion without granting an evidentiary hearing. Movant now timely appeals that decision.

Standard of Review

"Appellate review of the motion court’s denial of a Rule 24.035 motion is ‘limited to a determination of whether the findings and conclusions of the [motion] court are clearly erroneous.’ " Thompson v. State , 449 S.W.3d 53, 57 (Mo. App. W.D. 2014) (citing Rule 24.035(k) ). "We presume that the motion court’s findings are correct; thus, the appellant bears the burden of demonstrating clear error." Thompson , 449 S.W.3d at 57.

If "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." Rule 24.035(h). A movant "is entitled to an evidentiary hearing only if: (1) he alleges facts that, if true, would warrant relief; (2) the allegations are not refuted by the record; and (3) the movant was prejudiced by the alleged errors." Thompson , 449 S.W.3d at 58 (internal citation omitted).

Analysis

Point 1

Movant’s first point claims:

The motion court erred in denying [Movant]’s Rule 24.035 motion for post-conviction relief without an evidentiary hearing because she alleged facts, not conclusions, which if proven, would warrant relief and are not conclusively refuted by the files and records. [Movant] was deprived of her rights to due process of law as guaranteed by the Fifth and Fourteenth Amendments to the United State Constitution and Article I, Section 10 of the Missouri Constitution in that the State failed to present sufficient facts at [Movant]’s guilty plea hearing to establish she committed one count of passing a bad check in violation of [section] 570.120, RSMo 2000 (Count XII), and the plea court accepted a plea of guilty from [Movant] where there was no factual basis established as required by Rule 24.02(e).

To the extent that Movant claims the plea court failed to establish a factual basis for Movant’s plea of guilty to passing a bad check as required by Rule 24.02(e), her claim is not cognizable in a post-conviction proceeding.

Our high court recently made clear that "a sufficient factual basis is not constitutionally required." Booker v. State , 552 S.W.3d 522, 528 (Mo. banc 2018). See also Rule 24.035(a) (allowing claims that "the conviction or sentence imposed violates the constitution and laws of this state or the constitution of the United States"). Rather, the essential inquiry in a guilty plea proceeding is whether the plea was knowing and voluntary. Booker , 552 S.W.3d at 527 (citing McCarthy v. United States , 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969) ), and State v. Shafer , 969 S.W.2d 719, 731 (Mo. banc 1998).

As noted in Booker , "Missouri courts have routinely used ‘factual basis’ synonymously and interchangeably with a ‘knowing and voluntary plea.’ " 552 S.W.3d at 527-28. However, "while a sufficient factual basis can be an important factor in a voluntariness determination, whether a plea is knowing and voluntary is determined from the record as a whole." Id. at 528 (citing Wilson v. State , 813 S.W.2d 833, 838 (Mo. banc 1991) ). Given the improper conflation of these two distinct inquiries in the case law extant at the time Movant filed her brief, we construe and analyze Movant’s claim as an assertion that her plea was unknowing and involuntary because she did not understand the elements of the crime she admitted committing.

On appeal, a reviewing court examines whether the case record, as a whole, supports a finding that the plea was knowingly and voluntarily entered. Wilson , 813 S.W.2d at 838. A reviewing court can look outside the "four corners of the transcript of the plea hearing" and consider sources of information that are "still part of the record" such as transcripts from the arraignment or other preliminary proceedings in order to make the determination that a plea was knowingly and voluntarily entered as constitutionally required. [United States v. ] Vonn , 535 U.S. [55,] 74-75, 122 S.Ct. 1043, 152 L.Ed.2d 90 [ (2002) ].

Booker , 552 S.W.3d at 528.

Movant was charged with passing a bad check in violation of section 570.120. Under section 570.120.1(1):

A person commits the crime of passing a bad check when: (1) With purpose to defraud, the person makes, issues or passes a check or other similar sight order or any other form of presentment involving the transmission of account information for the payment of money, knowing that it will not be paid by the drawee, or that there is no such drawee[.]

If the issuer had no account with the drawee or there was no such drawee at the time the check was issued, passing a bad check is a class-C felony. Section 570.120.4. The State must establish that a defendant had the intent to defraud at the time the check was passed. State v. Harris , 913 S.W.2d 348, 350 (Mo. App. E.D. 1995).

In support of her point, Movant argues that she never admitted at the plea hearing "that at the time she wrote the $60.00 check ... she was aware the account was frozen" and "never admitted that at the time she wrote the check she had the purpose to defraud and was aware the account was frozen, or non-existent as alleged by the State." The motion court did not clearly err in finding that this claim is refuted by the record.

Before examining Movant on the facts of the crime, the plea court extensively covered the plea agreement in Movant’s case, along with the applicable range of punishment. After the State said it would recommend probation, the plea court told Movant three times that she could face up to seven years in prison, and that the court did not have to accept the State’s probation recommendation and could sentence Movant to prison. Movant stated that she understood.

The following exchange then occurred between Movant and the court:

[Plea Court:] On March 21st of 2013, were you in Bollinger County?

[Movant:] Yes, sir.

[Plea Court:] Did you go to the Country Mart store here in Marble Hill?

[Movant:] Yes, sir.

....

[Plea Court:] Did you write them a check for sixty dollars?

[Movant:] Yes, sir.

[Plea Court:] And that check was drawn on First State Midwest Bank, is that correct?

[Movant:] Yes, sir.

[Plea Court:] Did you have an account there?

[Movant:] No, sir.

[Plea Court:] So there was no way in the world there was any account that was going to pay that check, correct?

[Movant:] Well, it was in my grandma’s

...