Beach v. State

¶1ON MOTION FOR REHEARING OR TRANSFER

¶2Our affirmance of the motion court’s denial of Movant’s motion for post-conviction relief without an evidentiary hearing was based upon our holding that Movant’s allegation of prejudice in his motion — but for plea counsel’s ineffectiveness he would have pled guilty to a more favorable plea offer — did not allege the kind of prejudice constitutionally required — but for plea counsel’s ineffectiveness he would not have pleaded guilty, but would have insisted on going to trial — and that without such an allegation, his claim was not cognizable under Rule 24.035. In his Motion for Rehearing or Transfer to Missouri Supreme Court, Movant asserts: “The Court and counsel[1] overlooked a decision of the Missouri Supreme Court that squarely addresses this issue and requires reversal.” He claims that our “opinion conflicts with Dobbins v. State, 187 S.W.3d 865 (Mo. banc 2006), which controls and is directly contrary to this Court’s holding.”

¶3Dobbins, charged with possession with intent to distribute and two traffic offenses, rejected a proposed plea agreement calling for ten years’ imprisonment *367on the possession charge and the dismissal of one charge, and instead, entered an “open” plea of guilty. Id. at 866. “He relied on his attorney’s advice that, whatever sentence he received, he would be eligible to petition for early release pursuant to section 558.046 upon completion of a detoxification and rehabilitation program.” Id.With a range of punishment of ten to thirty years, the trial court imposed an eighteen-year sentence on the possession charge. Id.Dobbins, learning that he was not eligible to petition for early release, filed his Rule 24.035 motion for post-conviction relief, alleging that his plea counsel had affirmatively misled him as to such eligibility. Id.The motion court denied Dobbins’ motion, and on appeal, the Missouri Supreme Court found that “counsel was ineffective in affirmatively misleading Dobbins as to the applicability of section 558.046 and that this ineffectiveness prejudiced him.” Id.

¶4The only discussion by the Supreme Court of the prejudice prong of Dobbins’ ineffectiveness claim occurs in the very last paragraph of the opinion wherein the court stated:

Counsel’s ineffectiveness must be joined with prejudice to afford Dobbins relief. In this case, Dobbins was prejudiced because he rejected an offer to plead to a charge resulting in a 10-year sentence. If he had known he was not able to challenge the sentence, he would not have entered an open plea, but would have accepted the offer, which matched the lowest sentence he could have received under the open plea agreement. Moreover, the facts relating to Dobbins’ understanding of the plea and his agreement that no one had promised leniency for the plea are irrelevant. It was not the sentence to be imposed that concerned Dobbins — it was his eligibility for sentence reduction as to any sentence that was imposed. His attorney’s affirmative misrepresentation as to his ability to challenge the sentence prejudiced Dobbins by causing him to plead guilty when he otherwise would not have done so.

¶5Id. at 867.

¶6The concept that Dobbins was prejudiced by rejecting the ten-year offer, as mentioned in the second sentence, is not contrary with our holding in the instant case. We do not question that Movant in the case at bar was prejudiced by not accepting the more favorable plea offer. We simply held that this prejudice was not the kind of prejudice which supports a constitutional claim of ineffective assistance of plea counsel, as required by Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). However, Movant focuses upon this paragraph to support his contention that our Supreme Court has “squarely address[ed] this issue” and has broadened and enlarged the kind of prejudice that will support such a claim. We disagree.

¶7The Missouri Supreme Court adopted the Hillstandard for the prejudice prong of an ineffectiveness claim on a plea of guilty in Hagan v. State, 836 S.W.2d 459, 463-64 (Mo. banc 1992) (questioned on other grounds by State v. Heslop, 842 S.W.2d 72, 75 (Mo. banc 1992)). The Supreme Court has applied this standard in State v. Nunley, 980 S.W.2d 290, 292 (Mo. banc 1998); State v. Roll, 942 S.W.2d 370, 374 (Mo. banc 1997); and Coates v. State, 939 S.W.2d 912, 914 (Mo. banc 1997). It is difficult, if not impossible, for us to believe that our Supreme Court would purport to change such a well-established and entrenched standard without any significant discussion and without any citation to relevant authority.

¶8When we closely examine the entire one-paragraph prejudice discussion in Dobbins, *368we are convinced that the Supreme Court actually applied the Hillstandard in determining the prejudice prong of Dobbins’ ineffectiveness claim. The second to last sentence states: “It was not the sentence to be imposed that concerned Dobbins — it was his eligibility for sentence reduction as to any sentence that was imposed.” Dobbins, 187 S.W.3d at 867 (emphasis added). Dobbins’ concern would apply to any sentence imposed under any guilty plea, even one pursuant to the more favorable plea agreement. While the opinion does not disclose whether or not Dobbins pleaded and proved that, but for the affirmative misadvice of his plea counsel, he would not have pleaded guilty but would have insisted on going to trial, as required by Hill, the last sentence in the paragraph supports that he did so. In that sentence, the Court summarized its decision as: “His attorney’s affirmative misrepresentation as to his ability to challenge the sentence prejudiced Dobbins by causing him to plead guilty when he otherwise would not have done so.” Id.(emphasis added). This sentence clearly states that, but for the ineffectiveness of plea counsel, Dobbins would not have pleaded guilty. By implication, the only alternative to not pleading guilty is to go to trial. Thus, the Court applied the Hillstandard without citation. As such, our holding in the ease at bar is not contrary to Dobbins.

¶9For the above reasons, we deny the Movant’s Motion for Rehearing and Motion to Transfer to the Missouri Supreme Court.