Edward C. Koenig, Appellant, v. State of Missouri, Respondent.

EDWARD C. KOENIG,

Appellant,

v.

STATE OF MISSOURI,

Respondent. ) ) ) ) ) ) ) ) ) No. ED113363

Appeal from the Circuit Court of Jefferson County The Honorable Brenda Stacey, Judge Edward C. Koenig appeals the court's denial of his Rule 24.035 1 motion for postconviction relief claiming that the court clearly erred because his plea counsel was ineffective for guaranteeing Koenig that he would receive long-term treatment for substance abuse under section 217.362 2 upon his open guilty pleas and counsel's assurance prejudiced Koenig because had counsel not assured him of the treatment, he would not have pleaded guilty. We affirm because Koenig testified at his plea hearing that his attorney did not make any promises to him and plea counsel testified that he did

1 All rule references are to the Missouri Supreme Court Rules (2022). 2 All statutory references are to the Revised Statutes of Missouri (2016).

2 not guarantee long-term treatment. Moreover, the motion court found plea counsel's testimony credible and we defer to that finding. Background The State charged Koenig with two counts of first-degree tampering, five counts of possession of a controlled substance, one count of driving while revoked, one count of driving while suspended, and one count of endangering the welfare of a corrections officer. Koenig pleaded guilty to all counts. At the plea hearing, the court confirmed Koenig understood that by pleading guilty, he was waiving certain rights, such as the right to a trial or the right to present a defense. Koenig testified that no promises had been made to him to cause him to plead guilty and that if any promises had been made, he conceded that they were not binding on the court. Lastly, he testified that he was satisfied with his lawyer's services. On June 2, 2022, at the sentencing hearing, the State recommended twenty years and defense counsel requested substance abuse treatment instead of prison time with a "backup" sentence if Koenig failed the program. In his argument to the court, counsel stated that Koenig "needs treatment," could improve his life with treatment, and that he had repeatedly asked counsel regarding the likelihood the court would order treatment. Koenig testified that while in jail he had already applied for outpatient treatments and had been reading and doing worksheets about his substance abuse. He concluded "Look, my lawyer is probably going to be upset for me saying this, but I mean if you

3 would allow me to go do long-term treatment I'm so sure that I'm going to better myself that I don't care how big of a backup you give me." The court declined and sentenced Koenig to twenty years total and then advised Koenig of his post-conviction appeal rights during which Koenig told the court that his attorney did not communicate any threats or promises to cause him to enter the plea but that he "kind of" understood that he was "probably" going to get treatment instead of prison. He further testified that his attorney could not say for sure whether he would get treatment but felt like it was a possibility since he pleaded guilty. When asked if he was satisfied with his attorney's services, he stated that he was not because he was an out-of- town lawyer and he did not have adequate communication with the judge and prosecutor. The court found counsel was not ineffective. On November 23, 2022, Koenig's appointed postconviction counsel timely filed his amended motion and at the April 13, 2024 evidentiary hearing, Koenig's plea counsel testified that Koenig entered open pleas in order to argue for long-term drug treatment. Counsel testified that he did not tell Koenig what the sentence would be. He recalled asking the court if a sentence of long-term treatment was a possibility but the court declined to reveal its intentions. Further, counsel did not remember telling Koenig that treatment was a likely outcome, only that he would argue for it and that the court considers several factors with no guarantee that the court would give him long-term treatment instead of prison time. Koenig did not appear at the evidentiary hearing on this motion but later at his deposition claimed that his plea counsel worked out a deal with the sentencing court that

4 Koenig would receive long-term treatment with a twelve-year back-up prison sentence. He also claimed that plea counsel told him to lie when asked if any binding promises were made. The trial court did not find Koenig's testimony credible and denied his motion. Standard of Review We review a denial of a Rule 24.035 motion for post-conviction relief only to determine whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 24.035(k). Findings and conclusions are clearly erroneous only when, in light of the entire record, the court is left with the definite and firm impression that a mistake has been made. Reiker v. State, 636 S.W.3d 626, 627 (Mo. App. 2021). We presume that the motion court's findings are correct. Id. "Credibility determinations are within the exclusive province of the motion court, and the motion court may believe or disbelieve any portion of the testimony." Branson v. State, 633 S.W.3d 871, 874 (Mo. App. 2021). This Court defers to those credibility determinations. Id. To be entitled to post-conviction relief for ineffective assistance of counsel, the movant must meet the two-pronged Strickland test. See Strickland v. Washington, 466 U.S. 668, 687 (1984); Smith v. State, 443 S.W.3d 730, 734 (Mo. App. 2014). The movant must prove by a preponderance of the evidence (1) that counsel's performance did not conform to the degree of skill and diligence of a reasonably competent attorney; and (2) that as a result thereof, the movant was prejudiced. Smith, 443 S.W.3d at 734.

5 To succeed on the performance prong, the movant must overcome a strong presumption that counsel's performance was reasonable and effective by showing specific acts or omissions that, under the circumstances, fell outside the wide range of effective assistance. Id. To satisfy the prejudice prong, the movant must show that there is a reasonable probability that, but for counsel's alleged errors, the outcome would have been different. Id. If the movant fails to establish either prong, "then we need not consider the other and the claim of ineffective assistance must fail." Roberts v. State, 535 S.W.3d 789, 797 (Mo. App. 2017). Discussion Koenig claims the motion court clearly erred in denying his 24.035 motion because his plea counsel advised him that he would receive long-term substance abuse treatment and this advice prejudiced him because he would not have pleaded guilty if counsel had not assured him he would receive the treatment. We disagree because we defer to the trial court's credibility findings and Koenig has failed to show that counsel's performance was deficient or that he was prejudiced. "A guilty plea is an admission to the facts in the indictment or information." Wright v. State, 607 S.W.3d 788, 791 (Mo. App. 2020). "A guilty plea waives all constitutional and statutory claims except jurisdictional defects and claims that the guilty plea was not made knowingly, voluntarily, and intelligently." Id. (citing Stanley v. State, 420 S.W.3d 532, 544 (Mo. banc 2014)). Thus, a plea "must be a voluntary expression of the defendant's choice and a knowing and intelligent act done with sufficient awareness

6 of the relevant circumstances and likely consequences." Drone v. State, 973 S.W.2d 897, 900 (Mo. App. 1998). Here, plea counsel testified that he did not promise long-term drug treatment to Koenig. He told Koenig that he would do his best to advocate for him, but that the court would take several factors into consideration and therefore he could not guarantee treatment. The court found counsel's testimony credible and we defer to that finding. Branson, 633 S.W.3d at 874. Moreover, Koenig testified that his counsel did not make any promises and conceded that counsel said it was a possibility since he pleaded guilty. Thus, our review of the record shows that Koenig's guilty plea was voluntary, knowing, and intelligent and his sworn testimony and plea counsel's testimony show that Koenig was sufficiently aware of the relevant circumstances and likely consequences. Drone, 973 S.W.2d at 900; see also Moreland v. State, 659 S.W.3d 671, 678 (Mo. App. 2023) (holding that the motion court did not clearly err in finding that defendant's guilty plea was knowing and voluntary because the record refuted defendant's claim that trial counsel told him he would be placed in treatment court if he entered a guilty plea). Conclusion Affirmed.

______________________________________ James M. Dowd, Judge

Rebeca Navarro-McKelvey, Presiding Judge and Gary M. Gaertner, Jr., Judge, concur.