Charles W. Burnett v. State of Missouri , 2014 Mo. App. LEXIS 1347 ( 2014 )

IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
CHARLES W. BURNETT, )
)
Appellant, )
)
vs. ) WD76486
)
STATE OF MISSOURI, ) Opinion filed: December 2, 2014
)
Respondent. )
APPEAL FROM THE CIRCUIT COURT OF CLINTON COUNTY, MISSOURI
THE HONORABLE JASON A. KANOY, JUDGE
Before Division Two: Victor C. Howard, Presiding Judge,
James E. Welsh, Judge and Anthony Rex Gabbert, Judge
Charles Burnett appeals the denial of his Rule 24.035 motion for post-conviction relief
after an evidentiary hearing. Burnett argues that the record does not contain a factual basis for
his guilty plea to receiving stolen property. He claims that he was denied effective assistance of
counsel when plea counsel did not seek to withdraw his guilty plea when probation under the
plea agreement became impossible and imprisonment unavoidable. Burnett also complains the
trial court’s findings of fact and conclusions of law were not sufficiently specific regarding his
claims that his plea counsel had a conflict of interest and that the plea court had categorically
refused to consider the full range of punishment. As to Burnett’s claim that the trial court’s
findings of fact and conclusions of law were not sufficiently specific regarding his claim that the
plea court categorically refused to consider the full range of punishment, the motion court's
judgment is reversed, and the cause is remanded for entry of findings of fact and conclusions of
law that comply with Rule 24.035(j). In all other respects, the judgment is affirmed.
Background
In August of 2008, Burnett was charged with receiving stolen property in violation of
section 570.080, RSMo. The information alleged that Burnett, “with the purpose to deprive the
owner of a 4-wheeler, a John Deere toolbox, a double strand of pearls and many other items,
retained such property, of a value of at least five hundred dollars, knowing that they had been
stolen.”
Burnett executed a written petition to enter a guilty plea, in which he stated that “[i]n
Dec[ember] 2007 Shawn Burnett brough[t] over a four[-]w[heel]er to my dad[’]s house where I
fixed it for him[.]” The petition consisted of seven pages, which also stated, among other things,
that Burnett understood that he was charged with receiving stolen property, told his lawyer all
the facts and circumstances about the charges made against him, that his lawyer counseled and
advised him on the nature of the charge and all possible defenses, and that the court was not
bound by any plea-bargain and could impose any punishment within the lawful range of
punishment, and that he was informed of the range of punishment the law provided for. The
petition contained a provision specifically expressing that Burnett knew that by pleading guilty,
his probation or parole could be revoked and he could be required to serve time in cases for
which he was on probation or parole, which could be consecutive to the sentence in the guilty
plea case. The document stated that Burnett had been advised that the court was not bound by
the prosecutor’s promised recommended sentence. Burnett signed each of the seven pages of the
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petition including the final page, which stated that he had read and his attorney had explained to
him the petition.
A guilty plea hearing was held during which the court asked Burnett if he had reviewed
the petition, signed each page indicating that he read and understood the contents of each page,
and understood the document in its entirety. Burnett responded affirmatively. Burnett also
testified that he understood the charges against him, that he was in possession of a four-wheeler
that had been stolen, and that he thought the four-wheeler was worth approximately $2,500.
When the court asked how he came to possess the four-wheeler and whether he knew it was
stolen, Burnett said his cousin brought it to his house and he did not know it was stolen at the
time but rather came into that information later.
The court asked the State what its evidence would be if the case were to go to trial. The
State said it would present evidence that Burnett was in possession of the four-wheeler that was
worth approximately $2,500, as well as “a John Deere toolbox with an estimated value of
$1,400, a double strand [of] pearls with an estimated value of $800 in addition to eight other
pages of items . . . that were stolen goods.” When the court asked Burnett if he disputed any of
what the prosecutor had just said, he replied that a lot of the things on the list were not stolen.
However, when the court asked if he did agree that the four-wheeler was stolen and that it was
worth over $500, Burnett said, “Yes.”
The court also reiterated to Burnett that if it accepted his plea, it was not required to
follow the State’s recommendation, and that it could sentence him to the maximum of seven
years imprisonment, and then asked if Burnett understood, and he said, “Yes.” Finally, the court
asked if Burnett was pleading guilty because he was, in fact, guilty and for no other reason, and
he again replied, “Yes, sir.”
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The court then found Burnett’s plea was freely and voluntarily made with a full
understanding of the charges and consequences of the plea, and that there was a factual basis for
the plea. The court therefore accepted Burnett’s guilty plea and found him guilty of receiving
stolen property. The court deferred sentencing to get a sentencing assessment report from the
Missouri State Board of Probation and Parole.
In May of 2009 the sentencing hearing was held, and the court concluded that it would
sentence Burnett to four years in the Missouri Department of Corrections, to run consecutive to
eleven years to which he had been sentenced in other cases in other counties. Burnett had been
on probation for those cases, but upon entry of his guilty plea in this case, probation was revoked
and he was sentenced in those cases. The court reasoned at sentencing:
The court could sentence you to seven years in the Missouri Department of
Corrections. I could have sentenced you up to the maximum, which would run
consecutive to the 11, which you’re already looking at. I am going to sentence
you to consecutive time. I don’t believe in concurrent time and I’m not going to
do that. But I’m not going to sentence you to seven either. What I’ll do is four
years in the Missouri Department of Corrections. I’ll run that consecutive to your
DeKalb County case and your Harrison County case.
After the sentence was pronounced, Burnett was asked if he was satisfied with his
representation by counsel, to which he replied that he was. Burnett answered that there was not
anything counsel had done that Burnett had asked him not to do, nor was there anything that
Burnett had asked him to do that counsel had failed to do. Burnett told the court he was satisfied
with counsel’s representation.
Burnett filed an amended Rule 24.035 motion to vacate, set aside, or correct judgment
and sentence. The motion alleged that his guilty plea was not knowing and voluntary because no
factual basis was established for the elements of receiving stolen property of “for the purpose of
depriving the owner of a lawful interest therein” and “knowing that it has been stolen, or
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believing that it has been stolen.” The motion also alleged that Burnett received ineffective
assistance of counsel when plea counsel failed to file a Rule 29.07 motion to withdraw his guilty
plea after probation was revoked in Burnett’s other cases in Harrison and DeKalb Counties and
sentences were imposed in those cases. The motion further alleged that plea counsel had a
conflict of interest because he was the prosecuting attorney in Harrison County when Burnett
pled guilty in the Harrison County case, and finally, that the court was unwilling to consider the
full range of permissible punishment in sentencing Burnett.
An evidentiary hearing was held on Burnett’s motion, during which the court heard
testimony from plea counsel and Burnett. Plea counsel testified that before Burnett’s sentencing
hearing, he would have discussed the possibility of a motion to withdraw the guilty plea, but that
it was not done, and not filing such a motion would have been based on direction from Burnett.
He testified that by the time Burnett was sentenced in this case, it would have been impossible
for him to remain out of prison because he was already sentenced in the other cases. Plea
counsel said it was his practice if a client told him to file a motion to withdraw a guilty plea that
he would file such a motion.
Plea counsel also testified that he was an assistant Harrison County prosecutor from 1999
to 2002 and was the elected Harrison County prosecutor from 2002 through 2006.
Burnett testified that he first learned the four-wheeler was stolen after he was arrested in
this case. He further testified that he had asked plea counsel to file paperwork to ask the judge to
withdraw his guilty plea once he knew at sentencing there was no way he could avoid prison
time, and plea counsel did not take any action to withdraw his guilty plea. Burnett also testified
that he was initially charged in the Harrison County case in 2006, and that the date of that
offense was sometime in the beginning of 2006, although he would agree if the record showed
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that the complaint and warrant in the Harrison County case were filed January 31, 2007. Burnett
also admitted he had an opportunity to review his petition to enter a guilty plea, that he signed
each page of it, and that he read and signed the portion of the petition stating “I offer my plea of
guilty freely and voluntarily and of my own accord and with full understanding of all the matters
set forth . . . .”
In April of 2013, the motion court denied Burnett’s motion. The motion court concluded
that the record showed a sufficient factual basis. The court found that plea counsel had discussed
with Burnett the possibility of filing a motion to withdraw his guilty plea but that Burnett never
told counsel to file one so none was filed. The court found that based upon Burnett’s demeanor,
testimony, and cross-examination, it was “left with the distinct impression that [Burnett’s] claims
[were] not credible.” It was “highly skeptical of [Burnett’s] testimony of his representation by
[plea counsel]” and found that Burnett’s testimony “was self-serving and not grounded in truth.”
The motion court also made a general finding that “[a]ny allegations raised in the motion without
supporting evidence at hearing are hereby overruled as the Court finds the Defendant has failed
to meet his burden of proof on same.” Burnett appeals.
Standard of Review
Appellate review of the denial of a post-conviction relief motion 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); Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009). Findings
and conclusions are clearly erroneous only if, after a review of the entire record, the appellate
court is left with the definite and firm impression that a mistake has been made. Roberts, 276
S.W.3d at 835. The movant bears the burden of showing by a preponderance of the evidence
that the motion court clearly erred. Id.
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Discussion
Burnett argues in his first point on appeal that the record does not contain a factual basis
for his guilty plea to receiving stolen property. Rule 24.02(e) requires the court to determine that
there is a factual basis for a defendant’s guilty plea in order to enter a judgment on the plea.
Where the information or indictment clearly charges the defendant with all the elements of the
crime, the nature of the charge is explained to the defendant, and the defendant admits guilt, a
factual basis is established. Mitchell v. State, 337 S.W.3d 68, 70 (Mo. App. W.D. 2011). The
factual basis must exist on the record as a whole, but it does not need to be established by the
defendant’s own words or by an admission of the facts recited by the State. Kennell v. State, 209
S.W.3d 504, 506 (Mo. App. E.D. 2006). Section 570.080.1 defines the crime of receiving stolen
property as receiving, retaining, or disposing of property of another, “for the purpose of
depriving the owner of a lawful interest therein, . . . knowing that it has been stolen, or believing
that it has been stolen.”
Here, the record consisted of the charging document, the guilty plea petition, and
testimony at the plea hearing. The information alleged that Burnett, “with the purpose to deprive
the owner of a 4-wheeler, a John Deere toolbox, a double strand of pearls and many other items,
retained such property, of a value of at least five hundred dollars, knowing that they had been
stolen.”
Burnett’s written petition to enter a guilty plea stated that “[i]n Dec[ember] 2007 Shawn
Burnett brough[t] over a four[-]w[heel]er to my dad[’]s house where I fixed it for him[.]” The
petition also stated, among other things, that Burnett understood that he was charged with
receiving stolen property, that he told his lawyer all the facts and circumstances about the
charges made against him, and that his lawyer counseled and advised him on the nature of the
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charge and all possible defenses. Burnett signed each of the seven pages of the petition
including the final page which stated that he had read and his attorney had explained to him the
petition.
During the guilty plea hearing, the court asked Burnett if he had reviewed the petition,
signed each page indicating that he read and understood the contents of each page, and
understood the document in its entirety. Burnett responded affirmatively. Burnett also testified
that he understood the charges against him, that he was in possession of a four-wheeler that had
been stolen, and that he thought the four-wheeler was worth approximately $2,500. When the
court asked how he came to possess the four-wheeler and whether he knew it was stolen, Burnett
said his cousin brought it to his house and he did not know it was stolen at the time but rather
came into that information later. The State said, if the case were to go to trial, it would present
evidence that Burnett was in possession of the four-wheeler that was worth approximately
$2,500, as well as “a John Deere toolbox with an estimated value of $1,400, a double strand [of]
pearls with an estimated value of $800 in addition to eight other pages of items . . . that were
stolen goods.” When the court asked Burnett if he disputed any of what the prosecutor had just
said, he replied that a lot of the things on the list were not stolen. However, when the court
asked if he did agree that the four-wheeler was stolen and that it was worth over $500, Burnett
said, “Yes.” Finally, the court asked if Burnett was pleading guilty because he was, in fact,
guilty and for no other reason, and he replied, “Yes, sir.”
In sum, the whole record shows that the charging document clearly charged Burnett with
all the elements of the crime, the nature of the charge was explained to Burnett, and Burnett
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admitted guilt. Therefore, a factual basis was established. 1 Mitchell v. State, 337 S.W.3d 68, 70
(Mo. App. W.D. 2011). Burnett’s first point on appeal is denied.
Burnett’s second point on appeal claims that he was denied effective assistance of
counsel when plea counsel did not seek to withdraw his guilty plea when probation under the
plea agreement became impossible and imprisonment unavoidable.
A guilty plea must be a “voluntary expression of the defendant'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). To prevail on an ineffective assistance of counsel claim following a
guilty plea, [the claimant] must show by a preponderance of the evidence that: (1)
trial counsel's performance was deficient because he failed to exercise the
customary skill and diligence that a reasonably competent attorney would exercise
in similar circumstances; and (2) the deficient performance prejudiced [the
claimant] as a result. Strickland v. Washington, 466 U.S. 668, 687 (1984); State
v. Simmons, 955 S.W.2d 729, 746 (Mo. banc 1997). If either the performance
prong or the prejudice prong is not met, then we need not consider the other, and
[the] claim of ineffective assistance of counsel must fail. Strickland, 466 U.S. at
687, 104 S. Ct. 2052.
Cherco v State, 309 S.W.3d 819, 822 (Mo. App. W.D. 2010).
Here, Burnett assured the court at his sentencing hearing that he was satisfied with his
representation by counsel, that there was not anything counsel had done that Burnett had asked
him not to do, nor was there anything that Burnett had asked him to do that counsel had failed to
1
This Court’s recent decision in Frantz v. State, --- S.W.3d ----, 2014 WL 4547840 (Mo. App. W.D. 2014),
acknowledges that “[e]xisting Missouri case law suggests that the inquiry into whether a sufficient factual basis
exists for a guilty plea is satisfied upon a defendant's assertion that plea counsel explained the nature of the charge to
him and that he understood the charge.” 2014 WL 4547840 at *4. However, Frantz suggests that this inquiry can
be insufficient and can result in “a defendant [who] can honestly tell the court that he is pleading guilty because he
believes himself guilty of the charged offense[, but who] may not, in fact, be guilty under a correct interpretation of
the law.” Id. at *4. The Court admonishes that it would be the better practice “for the plea court, when conducting a
guilty plea hearing, to ascertain facts on the record regarding the defendant's specific conduct that the State believes
supports the elements of the charged crime [because s]imply reciting the charging document [probably] merely
quotes the statutory elements,” rather than “defendant's actual, factually-specific conduct leading to the charge.” Id.
at *6.
Whereas in Frantz the Court was able to determine from the record before it that the evidence did not establish
certain key elements of the charged crime and that the defendant’s conduct did not fall within the charge, here, the
record contains other indications that the knowledge element of the charge against Burnett was met, through the
portions of the charging document, the guilty plea petition, and testimony at the plea hearing discussed above.
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do. Subsequently, at the hearing on Burnett’s post-conviction motion, plea counsel testified that
he was aware, prior to Burnett’s guilty plea in this case, that Burnett was on probation in another
felony case in Harrison County and one in DeKalb County. Counsel testified that he knew that
Burnett had pled guilty in both cases and had a “backup sentence” for them. Counsel stated that,
prior to sentencing, he and Burnett would have discussed the possibility of filing a motion to
withdraw his guilty plea, and no such motion was filed “based on Mr. Burnett’s direction.”
Counsel testified that had Burnett wanted to file a motion to withdraw his guilty plea, counsel
would have filed one. Plea counsel further testified that it would have been impossible for
Burnett to stay out of prison because he had already been sentenced in the other two cases.
Based on the foregoing, the trial court did not clearly err in concluding that plea counsel
had discussed with Burnett the possibility of filing a motion to withdraw his guilty plea but that
none was filed because Burnett never told counsel to file one. Burnett’s second point on appeal
is denied.
Burnett complains in his third point on appeal that the trial court’s findings of fact and
conclusions of law were not sufficiently specific regarding his claim that his plea counsel had a
conflict of interest. Burnett’s fourth point on appeal argues that the trial court’s findings of fact
and conclusions of law were not sufficiently specific regarding his claim that the plea court had
categorically refused to consider the full range of punishment. The trial court’s findings and
conclusions did not specifically mention either of these claims, but generally stated that “[t]his
court only considers portions of the Defendant’s motion where evidence was presented at the
time of the hearing. Any allegations raised in the motion without supporting evidence at hearing
are hereby overruled as the Court finds the Defendant has failed to meet his burden of proof on
same.” The court also made the general finding that that based upon Burnett’s demeanor,
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testimony, and cross-examination, it was “left with the distinct impression that [Burnett’s] claims
[were] not credible.” It was “highly skeptical of [Burnett’s] testimony of his representation by
[plea counsel]” and found that Burnett’s testimony “was self-serving and not grounded in truth.”
The motion court’s findings and conclusions need not adhere to a “precise formula[.]”
Ivory v. State, 211 S.W.3d 185, 189 (Mo. App. W.D. 2007). The court is not obligated to
individually address each of the movant’s claims, but rather, generalized findings that provide
the appellate court an adequate record for review of the claims are sufficient. Edwards v. State,
200 S.W.3d 500, 513 (Mo. banc 2006).
Here, the motion court’s finding that it was “highly skeptical” of Burnett’s testimony
about his representation by plea counsel and that such testimony was “self-serving and not
grounded in truth” is sufficient to provide an adequate record for review of Burnett’s claim that
plea counsel had a conflict of interest. The only evidence in the record that gave any indication
of a possible conflict was Burnett’s testimony that he was initially charged in his Harrison
County case in 2006, and plea counsel’s testimony that he was Harrison County prosecutor from
2002 through December 31, 2006. However, both Burnett and plea counsel testified that they
agreed that the record showed that the complaint and warrant in the Harrison County case were
filed on January 31, 2007, which was after plea counsel no longer held that office. The motion
court’s findings reflect that it disbelieved Burnett’s testimony about being initially charged in
2006 and accordingly that Burnett had not met his burden to prove any conflict of interest.
Burnett’s third point on appeal is denied.
Burnett’s complaint that the motion court erred in making inadequate findings and
conclusions as to his claim that the sentencing court categorically refused to consider the full
range of punishment is supported by the record. In his Rule 24.035 motion, Burnett argued the
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sentencing court’s statement at sentencing indicated that the court was “not willing even to
consider concurrent time[.]” The record indicates that the sentencing court stated:
The court could sentence you to seven years in the Missouri Department of
Corrections. I could have sentenced you up to the maximum, which would run
consecutive to the 11, which you’re already looking at. I am going to sentence
you to consecutive time. I don’t believe in concurrent time and I’m not going to
do that. But I’m not going to sentence you to seven either. What I’ll do is four
years in the Missouri Department of Corrections. I’ll run that consecutive to your
DeKalb County case and your Harrison County case.
At the hearing on Burnett’s motion, he asked the court to take judicial notice of the underlying
criminal file, including the sentencing transcript, which included this statement by the sentencing
court. The motion court did take judicial notice. There was no further discussion or testimony
on the matter at the hearing.
An appropriate after-trial Rule 78.07(c) motion was filed, giving the motion court the
opportunity to make the required findings on Burnett’s claim about the sentencing court’s
unwillingness to consider the full range of punishment in its findings and conclusions. The
motion court did not specifically address this claim, however, and instead, it made only a
generalized finding that “[a]ny allegations raised in the motion without supporting evidence at
hearing are hereby overruled as the Court finds the Defendant has failed to meet his burden of
proof on same.” This finding is not sufficient to provide an adequate record for review of
Burnett’s claim that the plea court had categorically refused to consider the full range of
punishment. To support his claim Burnett asked the court to take judicial notice of the transcript
containing the relevant comments.
The absence of findings or conclusions upon which the trial court’s action was based
“leaves an appellate court in the dark and presents nothing of substance for review.” Smith v.
State, 343 S.W.3d 766, 768 (Mo. App. W.D. 2011) (quoting Merrick v. State, 324 S.W.3d 469,
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470 (Mo. App. S.D. 2010)). If this Court were to furnish findings of fact and conclusions of law
for Burnett’s claim on this issue, we would be engaging in de novo review, which is not
permitted under Rule 24.035(k). Muhammad v. State, 320 S.W.3d 727, 729 (Mo. App. E.D.
2010). The context and meaning of the sentencing court’s statements must first be reviewed and
findings and conclusions made at the circuit court.
As to Burnett’s claim that the motion court made inadequate findings and conclusions as
to his claim that the sentencing court categorically refused to consider the full range of
punishment, the motion court's judgment is reversed, and the cause is remanded for entry of
findings of fact and conclusions of law that comply with Rule 24.035(j). In all other respects, the
judgment is affirmed.
__________________________________________
VICTOR C. HOWARD, JUDGE
All concur.
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