Lierly v. State , 1991 Mo. App. LEXIS 1812 ( 1991 )

MAUS, Judge.

Movant, Christian D. Lierly, was charged with the Class D felony of sexual assault in the second degree. § 566.050. Movant appeared on June 21, 1990, with counsel and withdrew his not guilty plea and, pursuant to a plea bargain agreement, entered a guilty plea. Also pursuant to that agreement, the prosecuting attorney recommended punishment of imprisonment for four years. Movant, after an impassioned speech, testified he understood the state would recommend four years but asked the judge to sentence him to three years. The judge sentenced him to imprisonment for four years in accordance with the plea bargain agreement.

Movant filed a pro se postconviction motion under Rule 24.035 alleging, in general terms, a breach of the plea agreement. Two days later he filed an amended pro se postconviction motion which alleged ineffective assistance of counsel in that counsel failed to assert the plea agreement was for a sentence of imprisonment for three years. A public defender was appointed to represent the movant in his postconviction proceedings. The public defender filed an untimely amended motion which, in different terms, alleged, as grounds for relief, the grounds in the amended pro se motion.

The state moved for an order finding an evidentiary hearing unnecessary and for denial of the motion upon the basis of the record. The court sustained that motion and rejected the postconviction motion. Movant appeals.

In his only point on appeal, Movant alleges “[t]he motion court clearly erred by denying appellant's Rule 24.035 motion for postconviction relief without granting an evidentiary hearing because appellant’s appointed motion counsel provided no representation ... in that appellant’s motion counsel failed to file a timely amended motion that alleges facts, not conclusions.”

Movant does not by his point, or even by his argument, state any facts which should have been alleged in addition to those alleged in the amended postconviction motion.

Movant’s principal argument, though not stated in his point, is that the public defender was ineffective because he failed to file a timely amended motion. He cites Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991) and Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991). He contends that by reason of those authorities his case should be remanded for a determination of whether or not postconviction counsel was ineffective. Movant overlooks Pollard v. State, 807 S.W.2d 498 (Mo. banc 1991). In that case, as in this case, an amended motion, which parroted a pro se motion, was untimely filed. In rejecting a request for remand for a determination of ineffectiveness of counsel, the Supreme Court held:

“In the present case, appointed counsel also failed to file an amended motion within the specified time limit, but that failure resulted in no prejudice. So far as concerns points argued on this appeal (by counsel different from the one who appeared before the motion court), the belated amended motion did not differ from the pro se motion. Therefore even if the amended motion had been filed on time, that would not have affected the result.

What Pollard’s new counsel on appeal really argues in Point II is that counsel before the motion court did not do everything which might have been done, and the brief on appeal asks a remand for the purpose of another and expanded hearing. To acquiesce in that request would go far beyond the narrow compass of Sanders and Luleff, and as stated in Sanders ‘would defeat the clear provision of subsection (k).’ ” Id. at 502.

In this case “even if the amended motion had been filed on time, that would not have affected the result.” The motion court did not err in failing to grant an evidentiary hearing on allegations clearly refuted by the record. Pollard makes it clear the motion court did not err in not remanding the case. Judgment of the motion court is affirmed.

FLANIGAN, C.J., and SHRUM, J., concurs.