JOHN A. PENDERGRASS, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent

JOHN A. PENDERGRASS, Movant-Appellant, v. STATE OF MISSOURI, Respondent-Respondent.

No. SD38876

APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable T. Todd Myers, Circuit Judge AFFIRMED John Pendergrass (Movant) appeals from the denial of his amended Rule 24.035 motion without an evidentiary hearing. 1 In Movant's sole point, he contends the amended motion pleaded facts, not refuted by the record, that his attorney misinformed him about the percentage of his sentence he had to serve before becoming eligible for parole. Because this allegation was co nclusively refuted by the record, the motion court was not required

1 All rule references are to Missouri Court Rules (2023). All statutory references are to RSMo (2016), unless otherwise specified.

In Division

2 to hold an evidentiary hearing. Accordingly, we affirm the order denying relief pursuant to Rule 24.035. Factual and Procedural Background By amended information, Movant was charged with burglary in the second degree, arson in the second degree, resisting arrest, burglary in the first degree, animal abuse, and two counts of misdemeanor stealing. See § 569.170; § 569.050; § 575.150; § 569.160; § 578.012; § 570.030 RSMo Cum. Supp. (2021). With respect to the felony charges, the amended information also alleged that he was a prior and persistent offender. Movant agreed to plead guilty to all of the charges. The agreement stated that probation would be denied with respect to each charge. On October 24, 2023, the trial court conducted the guilty plea hearing. As the factual basis for the pleas, the prosecutor stated that the State could present the following evidence: (1) Movant entered a person's home without consent; (2) he removed several items; (3) he set fire to the house; (4) the fire killed a cat in the house; (5) he escaped from the house and fled the police; (6) he entered a second home without consent; and (7) he drank a soda from the second home without the owner's consent prior to being arrested. Movant agreed that this summary was accurate. During the hearing, the following colloquy occurred: THE COURT: Has anybody made any promises to you as to when you would be paroled?

[MOVANT]: No. No.

THE COURT: Has anybody made any other promises to you outside of this agreement that is affecting you or causing you to plead guilty here today?

[MOVANT]: No.

3

The trial court found that Movant's guilty pleas were "made freely, voluntarily, and intelligently with an understanding of his rights and the effect of his plea on those rights." Movant received the following sentences: 10 years' imprisonment for burglary in the second degree; 10 years' imprisonment for arson in the second degree; seven years' imprisonment for resisting arrest; 15 years' imprisonment for burglary in the first degree; one year in the county jail for animal abuse; and fines of $150 for each count of stealing. All sentences were to be run concurrently. Movant filed a timely pro se Rule 24.035 motion. Thereafter, appointed counsel filed a timely amended motion. 2 The amended motion alleged that Movant's guilty plea was entered in an unknowing, involuntary and unintelligent manner because plea counsel was ineffective in misadvising Movant that he would only be required to serve 40% of his sentence before being eligible for parole. The motion court denied the amended motion because it determined that "the files and the record of the case conclusively show that [M]ovant is not entitled to relief." The court declined to conduct an evidentiary hearing, explaining: At the plea [hearing], Movant told the [trial court] that there was not a promise as to when he would be paroled nor were there any other promises upon which he relied to plea[d] guilty. Movant was given an opportunity to inform the [trial court] that he was promised parole eligibility after serving 40% of his sentence. Movant did not make this claim or reveal that promise. Movant cannot now claim he was misled, had a mistaken belief, or a positive representation from counsel without contradicting his sworn testimony.

2 This Court has independently verified that Movant's pro se motion and appointed counsel's amended motion were timely filed. See Moore v. State, 458 S.W.3d 822, 825 (Mo. banc 2015); Dorris v. State, 360 S.W.3d 260, 268 (Mo. banc 2012).

4

This appeal followed. Standard of Review Appellate review of an order overruling a Rule 24.035 motion for post-conviction relief is limited to a determination of whether the motion court's findings of fact and conclusions of law are "clearly erroneous." Rule 24.035(k); Morehead v. State, 145 S.W.3d 922, 927 (Mo. App. 2004). Findings and conclusions are clearly erroneous only if, after a review of the entire record, we are left with the "definite and firm impression that a mistake has been made." Rice v. State, 988 S.W.2d 556, 557-58 (Mo. App. 1999). On appeal, Movant contends the motion court erred by denying relief without first conducting an evidentiary hearing. An evidentiary hearing is not required unless: (1) the movant pleads facts that, if true, would warrant relief; (2) the facts alleged are not refuted by the record; and (3) the matter complained of resulted in prejudice to the movant. Dorsey v. State, 115 S.W.3d 842, 844-45 (Mo. banc 2003); Harling v. State, 172 S.W.3d 889, 892 (Mo. App. 2005). If the files and records of the case conclusively show that Movant is not entitled to relief, no evidentiary hearing is required. See Rule 24.035(h); State v. Brooks, 960 S.W.2d 479, 497 (Mo. banc 1997); Harling, 172 S.W.3d at 892. Discussion and Decision Movant's claim of ineffective assistance of counsel rests solely on the allegation that plea counsel misinformed him that he would be eligible for parole after serving 40% of his sentence. The motion court correctly denied relief without an evidentiary hearing, as the record clearly contradicts this claim.

5 When the record of the guilty plea hearing directly refutes the claim that a movant's plea was involuntary, he is not entitled to an evidentiary hearing. Nesbitt v. State, 335 S.W.3d 67, 69-70 (Mo. App. 2011). Parole eligibility is a collateral consequence of pleading guilty, so plea counsel has no constitutional obligation to advise a defendant on that issue. See Reynolds v. State, 994 S.W.2d 944, 946 (Mo. banc 1999) (information about eligibility for parole is not among those direct consequences about which a defendant must be informed in order for the plea to be entered voluntarily and intelligently); Austin v. State, 529 S.W.3d 918, 923-24 (Mo. App. 2017) (same holding). As our Supreme Court held in Webb v. State, 334 S.W.3d 126 (Mo. banc 2011): This Court has held that the failure to inform a client about parole eligibility does not render the attorney's representation ineffective but has indicated that a plea may be considered involuntary if counsel misinforms the client as to the effects of the plea. [Reynolds, 994 S.W.2d at 946.] The court of appeals has observed this distinction based on Reynolds by holding that counsel's misinformation renders the representation ineffective. This Court now adopts this distinction and holds that where counsel misinforms the client as to the effects of the client's plea, the counsel has rendered ineffective representation.

Webb, 334 S.W.3d at 127. Our Supreme Court reached this conclusion because Webb's guilty plea hearing made no mention of parole eligibility. Id. at 129-30; see also Forman v. State, 661 S.W.3d 43, 48 (Mo. App. 2023); Reid v. State, 192 S.W.3d 727, 733 (Mo. App. 2006); Shackleford v. State, 51 S.W.3d 125, 128 (Mo. App. 2001). The case at bar is factually distinguishable from Webb. During the guilty plea hearing, Movant was specifically asked if anybody had made any promises to him "as to when he would be paroled[.]" He answered, "No." As the motion court concluded, "Movant cannot now claim he was misled, had a mistaken belief, or a positive

6 representation from counsel without contradicting his sworn testimony." Because Movant's own sworn testimony conclusively refutes the sole allegation in his amended motion, no evidentiary hearing was required. See Rule 24.035(h); Nesbitt, 335 S.W.3d at 69-70; White v. State, 954 S.W.2d 703, 706-07 (Mo. App. 1997); Meeks v. State, 876 S.W.2d 755, 756-57 (Mo. App. 1994). The motion court's findings and conclusions are not clearly erroneous. The order denying Movant's amended Rule 24.035 motion is affirmed.

JEFFREY W. BATES, J. – OPINION AUTHOR DON E. BURRELL, J. – CONCUR BECKY J. WEST, J. – CONCUR