dissent">PARRISH, Judge,

Dissenting.

I respectfully dissent.

The majority opinion relies on State v. Driver, 912 S.W.2d 52 (Mo. banc 1995), for the proposition that this defendant is entitled to look beyond the range of punishment explained by the trial court in order to show his plea of guilty was given involuntarily and without knowledge regarding the correct range of punishment. I do not read Driverthat broadly.

Driveris a Rule 29.15 case. It is based on a post-conviction motion directed to competency of counsel in a criminal case that went to trial. It held that an evidentiary hearing is required in a Rule 29.15 proceeding if (1) the motion alleges facts warranting relief; (2) the facts alleged raise matters not conelu-*925sively refuted by the files and records in the criminal case; and (3) the matters complained of resulted in prejudice to the mov-ant. Id. at 55.

Defendant’s conviction was the product of a plea of guilty. Any claim of ineffective assistance of counsel is immaterial unless it impinged upon the voluntariness and knowledge with which the plea of guilty was given. Wiles v. State, 812 S.W.2d 549, 551 (Mo.App.1991). Assuming, as does the majority opinion, that the test announced in Driverapplies in Rule 24.035 cases, a logical interpretation of its prong (2) is that facts required to be alleged in order to warrant an evidentiary hearing must be relevant to the issue of voluntariness of the plea of guilty and the defendant’s knowledge about the maximum punishment authorized by law for the offense to which the guilty plea is entered. I find nothing in Driverthat entitles a defendant to. an evidentiary hearing on a post-conviction motion because the defendant formed a belief, correct or incorrect, about a range of punishment for an offense other than the one to which he pleaded guilty.

In my opinion the findings of the trial court are not clearly erroneous. Defendant is not entitled to an evidentiary hearing. I would affirm the trial court’s order dismissing the Rule 24.035 motion without an evi-dentiary hearing.

Citation profile

Relationships

How this case has been treated — in progress