DIECKON T. CARDIN, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent

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DIECKON T. CARDIN, Movant-Appellant, v. STATE OF MISSOURI, Respondent-Respondent.

No. SD39041

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable T. Todd Myers, Judge AFFIRMED Dieckon T. Cardin ("Movant") appeals the denial of his amended Rule 24.035 1

motion for post-conviction relief (the "Motion") without an evidentiary hearing. In one point on appeal, Movant argues the motion court clearly erred in denying the Motion without an evidentiary hearing because Movant pleaded sufficient facts to show that plea

1 All rule references are to Missouri Court Rules (2023).

In Division

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counsel was ineffective for promising Movant that he would receive long-term treatment. We affirm. Factual Background and Procedural History On May 4, 2023, the State charged Movant with driving while intoxicated as a habitual offender, and a prior and persistent felony offender ("the current case"). 2 The Felony Information charged that, as a habitual offender, Movant was not eligible for parole until he had served 85 percent of his sentence, and was required to serve a minimum of two years before being eligible for probation or parole. 3

On June 26, 2023, Movant appeared before the court to enter a guilty plea ("the plea court"), at which time the State filed an Amended Felony Information which removed Movant's status as a prior and persistent felony offender. The Amended Felony Information kept as part of the charge that Movant was a habitual felony offender who shall not be eligible for parole until he had served 85 percent of his sentence. At the time he appeared for a guilty plea in the current case, Movant was also appearing for a

2 See sections 577.010, 558.016, and 557.036. All statutory references are to RSMo 2016 unless otherwise indicated, including changes effective January 1, 2017, and August 28,

1. Movant was also charged with a second count, the class C misdemeanor of failure

to drive on the right half of the roadway, in violation of section 304.015, which was subsequently dismissed nolle prosequi by the State.

3 Section 556.061(19), RSMo Cum. Supp. 2020, defines a "[d]angerous felony[,]" in part, as an "intoxication-related traffic offense" "if the person is found to be a 'habitual offender[.]'" Section 558.019.3, RSMo Cum. Supp. 2019, mandates that any offender found guilty of a dangerous felony must serve 85 percent of the sentence imposed by the court.

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probation violation case ("the probation case"), as the current case was a violation of the terms of the probation that Movant was then on. 4

At the June 26, 2023 plea hearing, plea counsel told the plea court that Movant intended to plead guilty to the new charges in the current case pursuant to a plea agreement with the State. The plea agreement on the current case provided that Movant would receive a sentence of seven years in the Department of Corrections, and that probation would be denied. Movant said he understood the plea agreement. When the plea court asked Movant whether he anticipated that the plea court was going to revoke his probation on the probation case, Movant responded, "Yes." The plea court stated that it would revoke Movant's probation and sentence him to seven years in the Department of Corrections, and that the sentence would run concurrently to the sentence pronounced in the current case. When plea counsel asked the plea court to consider long-term drug treatment on the probation case, the prosecutor noted that long- term treatment is not available for dangerous felonies, and the program likely would not take Movant into the program on the probation case. The plea court agreed and stated, "I am not going to order [Movant] be placed in long-term treatment." The plea court noted that Movant could request to be placed into the program himself when he went to the Department of Corrections if he wished.

4 At the time he incurred the charges in the current case, Movant was on probation in case number 1931-CR00916-01 for his guilty plea on August 16, 2019, to driving while intoxicated as a chronic offender. Movant had been sentenced to seven years in the Department of Corrections on the probation case, but execution of that sentence was suspended and Movant was placed on five years of supervised probation.

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Before he entered his guilty plea, the plea court advised Movant of his rights, ensured that Movant understood the plea agreement and had had enough time to discuss his case with his attorney, and reviewed the plea agreement with Movant. The plea court confirmed with Movant and plea counsel that Movant would not be eligible for parole until he had served 85 percent of his sentence. After receiving his sentence, Movant timely filed his pro se motion for post- conviction relief. Appointed counsel then filed Movant's amended motion for post- conviction relief, the Motion, claiming, in part, that his guilty plea was unknowing, unintelligent, and involuntary in that plea counsel told him he would be eligible for long- term treatment. The motion court denied Movant's motion without granting him an evidentiary hearing. Movant appeals that decision, and we will recite additional facts as needed to address Movant's point on appeal. Standard of Review We review the denial of a Rule 24.035 motion for postconviction relief to determine whether the circuit court's findings and conclusions are clearly erroneous. Rule 24.035(k); Shepard v. State, 658 S.W.3d 70, 75 (Mo. App. E.D. 2022), transfer denied (Jan. 31, 2023) (citing Hefley v. State, 626 S.W.3d 244, 248 (Mo. banc 2021)). "Findings and conclusions are clearly erroneous if, after reviewing the entire record, there is a definite and firm impression that a mistake has been made." Shepard, 658 S.W.3d at 75 (internal quotation omitted). To show he was entitled to an evidentiary hearing on his Rule 24.035 motion, a movant must show that (1) he alleged facts, not conclusions, warranting relief; (2) the facts alleged raise matters not refuted by the files and record of his case; and (3) the matters complained of resulted in prejudice to him. Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009) (citing Wilkes v. State, 82 S.W.3d 925, 928 (Mo. banc 2002)). Prejudice exists where the movant shows that, but for counsel's ineffective assistance, he would not have pleaded guilty and would have insisted on taking his case to trial. Jackson v. State, 660 S.W.3d 679, 682 (Mo. App.

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E.D. 2023). "An evidentiary hearing may only be denied when the record conclusively shows that the movant is not entitled to relief." Id.

Gaines v. State, 699 S.W.3d 262, 264-65 (Mo. App. E.D. 2024).

Discussion In his sole point on appeal, Movant argues that: The motion court clearly erred in denying [Movant's] [motion] without an evidentiary hearing, because [Movant] pleaded factual allegations which, if proved, would warrant relief and which are not refuted by the record, in that [Movant] claimed that he received ineffective assistance of counsel [...] when [plea] counsel promised [Movant] that he would receive long[-]term treatment. The ineffective assistance of counsel [Movant] received rendered his plea involuntary, because without this promise, [Movant] would have chosen to go to trial rather than plead guilty.

We disagree. This Court's review is constrained to the claims of error raised in an appellant's point relied on. Hitchcock v. State, 725 S.W.3d 358, 362 (Mo. App. S.D. 2025). This Court does not have jurisdiction to review claims not presented to the motion court. Thurman v. State, 263 S.W.3d 744, 749 (Mo. App. E.D. 2008). The claim Movant presented to the motion court, and the claim that the motion court ruled on, stated as follows: a) [M]ovant's counsel inaccurately informed [M]ovant that, if he pled guilty, he would be eligible for a long-term treatment program. Movant would not have pled guilty but for his mistaken belief, resulting from his counsel's erroneous representation, that he would be eligible for a long-term treatment program[.]

(Emphasis added.) A claim that plea counsel informed Movant he would be eligible for a long-term treatment program is different from the claim Movant makes on appeal, which is that his

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"[plea] counsel promised [Movant] that he would receive long[-]term treatment." Although the argument section of Movant's brief is directed to the claim he made to the motion court – that plea counsel told him he would be eligible for long-term treatment – "[w]e do not ordinarily consider arguments raised for the first time in the argument portion of a brief." Id. However, we will gratuitously review Movant's point as though it had been properly set out in the point relied on. Id. The two-part test for ineffective assistance of counsel enumerated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), applies to ineffective assistance claims in the guilty plea context. Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). First, "[Movant] must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Second, [Movant] must show prejudice, meaning "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. "[A] guilty plea must be a voluntary expression of [Movant's] choice, and a knowing and intelligent act done with sufficient awareness of the relevant circumstances and likely consequences." State v. Roll, 942 S.W.2d 370, 375 (Mo. banc 1997). The voluntariness of [Movant's] plea, which was premised on his plea counsel's advice, "depends on whether counsel's advice 'was within the range of competence demanded of attorneys in criminal cases.'" Hill, 474 U.S. at 56, 106 S.Ct. 366. "Mistaken beliefs about sentencing affect a defendant's ability to knowingly enter a guilty plea if the mistake is reasonable and the mistake is based upon a positive representation upon which the movant is entitled to rely." Dorsey v. State, 115 S.W.3d 842, 845 (Mo. banc 2003).

Hefley v. State, 626 S.W.3d 244, 249-50 (Mo. banc 2021).

On this issue, the motion court found that the record refuted Movant's claim that plea counsel told him he would be eligible for long-term treatment. Specifically, the motion court found that plea counsel, the assistant prosecutor, and the plea court all stated on the record that Movant was required to serve 85 percent of his seven-year sentence,

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and that he was not eligible for long-term treatment. The motion court also found that plea counsel negotiated an outcome for Movant whereby he received a concurrent sentence for committing a new felony of driving while intoxicated while he was on probation for driving while intoxicated. The motion court also noted that Movant received a seven-year sentence, which was three years less than the mandatory minimum sentence on his original charge. The motion court's findings are not clearly erroneous. During Movant's sentencing, the following exchanges took place: THE COURT: The [plea] Court has marked that document, which is entitled "Plea Agreement," .... It provides that you will plead guilty to DWI as a habitual offender, a Class B felony, and that if the [plea] Court accepts your plea of guilty, you will be sentenced to seven years in the Missouri Department of Corrections and probation will be denied. Do you understand that?

[MOVANT]: I do.

THE COURT: Do you understand that you are pleading guilty and stipulating that you are a habitual offender under Section 577.010? Do you understand that?

[MOVANT]: I do.

....

[THE COURT:] And do you understand – [plea counsel], correct me if I'm wrong – but that upon [Movant's] plea of guilty of the crime charged, he would be required to do 85 percent of the sentence before he would be el igible for any parole relief.

[PLEA COUNSEL]: That's correct, Your Honor.

THE COURT: And you understand that also, [Movant]?

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[MOVANT]: I do.

THE COURT: Okay. [Movant], are those the terms of your agreement with the State as you understand them?

[MOVANT]: They are.

As to the probation case, the following exchange took place: [THE COURT]: Now we'll turn our attention to [the probation case]. [Movant], that is a case in which you pled guilty and were found guilty of the Class C felony of chronic DWI. I think you were sentenced on August 16, 2019, to seven years in the Missouri Department of Corrections. Is that consistent with your records, [assistant prosecutor]?

[ASSISTANT PROSECUTOR]: Yes, Your Honor.

THE COURT: At that time the execution of your sentence was suspended in favor of a period of supervised probation. Do you recall that?

[MOVANT]: I do.

THE COURT: Since that time the [plea] Court has received information about conduct that has occurred which, if true, would be a violation of the terms and conditions of your probation. Do you understand that?

[MOVANT]: I do.

THE COURT: The State has filed a motion to revoke your probation. [Plea counsel], the [plea] Court is prepared to revoke probation based on [Movant's] just previously entered plea of guilty.

....

THE COURT: [Plea counsel], have you discussed that with your client?

[PLEA COUNSEL]: I have.

THE COURT: [Movant], is it your expectation that the [plea] Court will revoke your probation based on your plea of guilty in [the current case]?

[MOVANT]: Yes.

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THE COURT: All right. At this point the [plea] Court will make a finding that [Movant] has engaged in conduct which was in violation of the terms and conditions of your probation. The [plea] Court will grant the State's motion to revoke probation and order [Movant's] sentence of seven years in the Missouri Department of Corrections be executed; that sentence will run concurrent to the sentence announced just previously in [the current case]. [PLEA COUNSEL], you wish to make a further argument regarding sentencing; is that correct?

[PLEA COUNSEL]: It is, Your Honor. If possible in this case, I would like to ask the [plea] Court, if the [plea] Court would consider sentencing him into the long-term treatment program .... I realize that the other statute, which I don't necessarily understand the logic and the wisdom, because the whole purpose of long-term treatment is to treat individuals with multiple prior offenses. In fact, you can't get into long-term treatment unless you have prior felony pleas and convictions. Under the B felony case, I don't think that he could qualify for the long-term treatment. I think under the C felony case he can. I understand what I'm requesting is all basically up to [the Department of Corrections] in the first place, but this court is very influential and powerful and can make recommendations on the judgment form. Thank you.

THE COURT: [Assistant Prosecutor]?

....

[ASSISTANT PROSECUTOR]: The habitual offense he pleaded guilty to is a dangerous felony. Dangerous felonies are excluded for [long-term treatment]. Even if he's not sentenced on the persistent -- or revoked on persistent under [long-term treatment], I don't think they would take him based on that. Also, I believe he's done treatment with the DWI court and everything else; so I would ask for the sentence to be executed.

THE COURT: All right. I am not going to order [Movant] be placed in long-term treatment. I think -- I think it's very unlikely he is eligible for that program. However, he can request that program when he himself goes to the DOC and if he is eligible they will accept him into the program. I'm all fine with that. I'm afraid also, [plea counsel], that if I put him in long-term treatment on the probation, and they accept him, and then they will try to discharge him from that, and then we'll have a confusing issue about whether he has been discharged on initial period of probation at the

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conclusion of his other sentence. I think it will likely do more harm than good. In fact, for this, he can request treatment when he goes to DOC.

....

THE COURT: Did you receive the sentence that you anticipated you would receive?

[MOVANT]: Yes.

(Emphasis added.) Because the record conclusively shows that he is not entitled to relief, the motion court did not err in denying Movant's claim without an evidentiary hearing. Movant's point is denied, and the judgment of the motion court is affirmed. JENNIFER R. GROWCOCK, C.J. – OPINION AUTHOR JEFFREY W. BATES, J. – CONCURS BECKY J. WEST, J. – CONCURS