Dustin J. Hefley v. State of Missouri

SUPREME COURT OF MISSOURI
en banc
DUSTIN J. HEFLEY, ) Opinion issued June 29, 2021
)
Appellant, )
)
v. ) No. SC98876
)
STATE OF MISSOURI, )
)
Respondent. )
APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY
The Honorable Calvin Holden, Judge
Dustin J. Hefley appeals the judgment overruling his Rule 24.035 motion for
postconviction relief. Hefley pleaded guilty to driving while intoxicated (“DWI”). Plea
counsel advised him he would be eligible for long-term treatment under section 217.362, 1
and the circuit court sentenced him to nine years in the Department of Corrections
(“DOC”) pursuant to that provision. After sentencing, it was discovered Hefley was
statutorily ineligible for placement in the program.
The judgment overruling the Rule 24.035 motion found plea counsel was not
shown to have provided ineffective assistance because Hefley recognized he was not
1
All statutory references are to RSMo 2016, unless otherwise specified.
assured placement in the program and, by entering an open plea, he subjected himself to
the full range of punishment for the offense. These findings are clearly erroneous.
Hefley’s ultimate placement in the program was not the basis for his ineffective
assistance claim. Rather, Hefley was erroneously counseled that he could be placed in
long-term treatment when, as a matter of law, he was ineligible. Upon review of the
complete record, this Court holds the mistaken belief held by Hefley regarding his
sentencing, which arose from his plea counsel’s direct assurance, resulted in his guilty
plea. The judgment is reversed, and the case is remanded.
Background
Hefley was charged with, among other offenses, the class B felony of DWI,
stemming from an incident in April 2017. Hefley entered a guilty plea without an
agreement as to punishment. During standard questioning from the circuit court, Hefley
confirmed that he was pleading guilty without any agreement and that he was satisfied
with his plea counsel. The circuit court accepted Hefley’s guilty plea, set a date for
sentencing, and ordered a sentencing assessment report (“SAR”). The SAR noted Hefley
needed approval from the parole board before he could enter treatment but was “eligible
for sentencing pursuant to RSMO 217.362 Long Term treatment.”
At the sentencing hearing, the prosecutor stated she did not have any additions for
or corrections to the SAR. 2 The State recommended Hefley receive a 12-year sentence in
the DOC. Plea counsel, while acknowledging the seriousness of Hefley’s actions,
2
The circuit court and plea counsel noted some irregularities in the SAR, which was potentially
the result of cutting and pasting material from another SAR.
2
referenced Hefley’s health problems and alcohol addiction. Plea counsel stated Hefley
“would like to get into a long-term treatment program” and further argued:
If he’s fortunate enough that DOC will allow him into this program, upon its
completion, he -- he’s got some alternatives that he would like to pursue. . . .
[B]ut he recognizes that you could place him, upon completion of that
program, the 217 program -- he could be ordered to go into the DWI court
program again and sort of parlay what he’s learned and what he’s
accomplished in DOC and continue on with that kind of accomplishments
within the community.
Plea counsel then acknowledged Hefley would be interested in other treatment programs
“for sort of an aftercare or follow-up to the treatment that he would receive under the 217
program.” The circuit court sentenced Hefley to nine years in the DOC, adding, “I’m
going to sentence you under the 217 program of long-term treatment. It will be up to the
[DOC] parole board whether they allow you to do that or not.” During questioning about
satisfaction with plea counsel, Hefley agreed he was not promised any certain sentence.
Following sentencing, the Board of Probation and Parole informed the circuit
court Hefley was ineligible for long-term treatment under section 217.362. Hefley filed a
pro se motion to vacate, set aside, or correct his judgment or sentence. Postconviction
counsel then filed an amended motion, which alleged Hefley’s guilty plea was
involuntary, unknowing, and unintelligent because plea counsel misinformed and misled
him to believe he was eligible for long-term treatment pursuant to section 217.362, even
though he was statutorily ineligible as a habitual offender.
At the postconviction relief evidentiary hearing, plea counsel testified he had
advised Hefley on long-term treatment. He further stated Hefley decided to plead guilty
based on the representation counsel would argue for long-term treatment. There was no
3
promise Hefley would get into long-term treatment, but Hefley was told affirmatively—
albeit erroneously—he was eligible for that program. Plea counsel did not discover
Hefley was ineligible, as a matter of law, for long-term treatment until after sentencing.
Hefley testified he would have “[a]bsolutely not” pleaded guilty in an open plea
had he known there was no possibility of being accepted into long-term treatment. On
cross-examination, he acknowledged that he knew there was no plea deal and that the
circuit court could have sentenced him to up to 15 years. He further testified that, based
on discussions with his attorney, he believed he was eligible for long-term treatment and
there was a substantial likelihood he would be granted placement. Hefley realized the
requested remedy—having his plea set aside—could subject him to the full range of
punishment of which he would have to serve 85 percent as a habitual offender.
The postconviction relief court overruled Hefley’s Rule 24.035 motion, finding
Hefley’s plea was not involuntary or unintelligent because he “had no reasonable basis to
expect that he would, in fact, receive long[-]term treatment.” It also found Hefley had
not demonstrated prejudice because he knew he could be sentenced anywhere within the
range of punishment for a class B felony and no promises were made by plea counsel.
Hefley appeals. 3
Standard of Review
Appellate review of a judgment on a Rule 24.035 motion is “limited to a
determination of whether the findings and conclusions of the trial court are clearly
3
After an opinion by the court of appeals, this Court granted transfer. Mo. Const. art. V, sec. 10.
4
erroneous.” Rule 24.035(k). The judgment is “clearly erroneous” when, upon review of
the complete record, there is a “definite and firm impression that a mistake has been
made.” Johnson v. State, 580 S.W.3d 895, 900 (Mo. banc 2019).
Analysis
I. Availability of Long-term Treatment
Hefley argues the judgment denying Rule 24.035 relief was clearly erroneous
because plea counsel was ineffective for incorrectly advising him about his eligibility for
the long-term drug program (“LTDP”). As an initial matter, however, this Court
recognizes Hefley’s ineligibility for the LTDP was determined after sentencing. The
DOC is charged with the creation of the LTDP to aid chronic nonviolent offenders with
substance abuse addictions. Section 217.362.1. After an offender successfully completes
the LTDP, the offender may be released on probation, if the court determines probation is
appropriate. Section 217.362.3. But the LTDP is not available to those convicted of a
“dangerous felony.” Section 217.362.1. An “intoxication-related traffic offense” is
categorized as a “dangerous felony” if the person is found to be a “habitual offender.”
Section 556.061(19). 4 A “habitual offender” is an individual with “[f]ive or more
intoxication-related traffic offenses committed on separate occasions.” Section
577.001(11)(a). Because Hefley was charged as a habitual offender and was, in fact, a
habitual offender, 5 he was not eligible, as a matter of law, for the LTDP.
4
Effective January 1, 2017, the definition of a dangerous felony was expanded to include “an
‘intoxication-related traffic offense’ . . . if the person is found to be a ‘habitual offender’ . . . as
such term[ is] defined in section 577.001.” Sections 556.001, 556.061(19).
5
Hefley had five prior DWIs.
5
Section 217.362.2 provides that a judge considering sentencing an offender to the
LTDP must notify the DOC in advance of sentencing. The DOC then screens the
offender to determine eligibility for the program and whether adequate space exists. Id.Provided the DOC reports the offender is eligible and there is space in the program, then
and only then may the court sentence the offender to the LTDP. Id. Appellate courts
have repeatedly ruled screening for eligibility to the LTDP after sentencing is not
appropriate. State ex rel. Taylor v. Moore, 136 S.W.3d 799, 801 (Mo. banc 2004) (“The
trial court erred in sentencing Taylor to LTDP without verifying his eligibility for the
program.”); Stuart v. State, 565 S.W.3d 766, 777 (Mo. App. 2019) (noting this Court’s
recognition that section 217.362 “requires the sentencing judge notify the DOC before
sentencing someone to long-term treatment” (emphasis in original)); Williams v. State,
563 S.W.3d 750, 756 (Mo. App. 2018), opinion adopted and reinstated after retransfer
(Jan. 15, 2019) (“Section 217.362 requires the judge to notify the DOC for screening.”).
“If the court is advised that an offender is not eligible or that there is no space available,
the court shall consider other authorized dispositions.” Section 217.362.2. It is error for
a court to sentence a defendant to the LTDP prior to ensuring eligibility and space
through the DOC. 6 Courts cannot ignore statutory procedure.
6
The SAR request did not provide this information. The SAR request was not meant to notify
the DOC that Hefley was being considered for the program, and the SAR did not indicate
whether space existed in the program.
6
II. Ineffective Assistance of Plea Counsel
Hefley argues the judgment denying his ineffective assistance claim is clearly
erroneous. The two-part test for ineffective assistance of counsel enumerated in
Strickland v. Washington, 466 U.S. 668 (1984), applies to ineffective assistance claims in
the guilty plea context. Hill v. Lockhart, 474 U.S. 52, 58 (1985). First, “the defendant
must show that counsel’s representation fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688. Second, the defendant must show
prejudice, meaning “a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. at 694.
“[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). The
voluntariness of Hefley’s plea, which was premised on his plea counsel’s advice,
“depends on whether counsel’s advice ‘was within the range of competence demanded of
attorneys in criminal cases.’” Hill, 474 U.S. at 56. “Mistaken beliefs about sentencing
affect a defendant’s ability to knowingly enter a guilty plea if the mistake is reasonable
and the mistake is based upon a positive representation upon which the movant is entitled
to rely.” Dorsey v. State, 115 S.W.3d 842, 845 (Mo. banc 2003).
Hefley was statutorily ineligible to enter the LTDP. Plea counsel directly advised
him otherwise. The sentencing record, in which plea counsel repeatedly referenced the
LTDP, and testimony from the postconviction relief hearing provide evidence Hefley was
mistakenly relying on the possibility of being sentenced to the LTDP when that could not
7
legally occur. The record reflects a reasonable basis for the mistaken belief, a belief to
which even the circuit court subscribed. On these facts, plea counsel’s affirmative
misrepresentation regarding Hefley’s eligibility for the LTDP was objectively
unreasonable. Hefley was entitled to and did rely on this erroneous advice. For these
reasons, the judgment finding that Hefley’s plea was made voluntarily, knowingly, and
intelligently is clearly erroneous.
Despite the misrepresentation, the State argues Hefley’s plea was made with
sufficient awareness of the relevant circumstances and likely consequences of his plea.
This Court disagrees. Because of the erroneous advice, Hefley lacked a sufficient
understanding of his potential sentence. The State notes a court should not engage in
retrospective examination of difficult judgments counsel may be forced to undertake in
providing advice in a guilty plea, see McMann v. Richardson, 397 U.S. 759, 770 (1970)
(involving counsel’s assessment of whether a confession would be admissible when
courts themselves disagree on the standard and application for the admissibility of such
evidence), but no difficult examination or weighing of alternative judgment calls was
necessary here. In advising Hefley incorrectly on his eligibility under section 217.362,
plea counsel’s performance was deficient.
In the context of a guilty plea, prejudice is demonstrated if, but for counsel’s
errors, the guilty plea would not have been entered and the defendant would have insisted
on proceeding to trial. Johnson, 580 S.W.3d at 900. The judgment overruling the Rule
24.035 motion found an absence of prejudice because Hefley entered his plea without an
agreement and knew he could be sentenced within the full range of punishment for a
8
class B felony. In making this conclusion, the court misunderstood Hefley’s claim.
Hefley recognized there was no guarantee he would be placed in the LTDP, but the
record reflects a reasonable belief that he would be eligible for placement. Hefley
testified he would not have pleaded guilty had he known there was no possibility of being
accepted into the LTDP. Plea counsel testified Hefley decided to plead guilty based on
the representation he would argue for Hefley’s placement in the LTDP. Nothing in the
record or judgment denying postconviction relief suggests otherwise.
The State argues this Court should defer to the postconviction relief court’s
implicit determination that Hefley’s testimony was not credible. As a result of that
court’s position to assess the credibility of a witness during a postconviction relief
hearing, this Court defers to credibility determinations. Shockley v. State, 579 S.W.3d
881, 892 (Mo. banc 2019). But the judgment overruling Hefley’s Rule 24.035 motion is
devoid of credibility findings and rests solely on Hefley’s decision to enter an open plea.
No deference is owed, in this case, to any implicit credibility determination. Hefley
adamantly testified he would have forgone the guilty plea and proceeded to trial had he
known he was ineligible for the LTDP. Plea counsel’s testimony supported this claim.
Contrary to the judgment denying postconviction relief, under the facts here,
Hefley’s plea without an agreement and without promises does not preclude
postconviction relief. Although prior cases have found plea counsel ineffective for
affirmatively misrepresenting a defendant’s eligibility in a DOC program, the State
attempts to distinguish these cases because prejudice was more clearly demonstrated. See
Dobbins v. State, 187 S.W.3d 865, 867 (Mo. banc 2006) (finding defendant prejudiced by
9
entering an open plea upon inaccurate advice he would be eligible to petition for early
release because he rejected a plea offer for a term of years less than he received); Stuart,
565 S.W.3d at 777 (finding defendant prejudiced because he entered a plea agreement
premised on being sentenced to a treatment program when ineligible); Williams, 563
S.W.3d at 756 (same). Prejudice is not so limited, and a court must focus on the relevant
inquiry: whether, but for counsel’s errors, the guilty plea would not have been entered,
and the defendant would have insisted on proceeding to trial. See Johnson, 580 S.W.3d
at 900. Counsel’s advice to a defendant would influence the decision whether to enter an
open plea, and plea counsel here provided an affirmative misrepresentation critical to
making that decision. The postconviction relief judgment made no determination of
whether Hefley would not have pleaded guilty if he had accurately been counseled on his
ineligibility for the LTDP. In the absence of such a determination, and considering the
evidence suggesting Hefley’s plea was grounded on his eligibility in the program, this
Court finds prejudice existed. This prejudice finding is further reinforced by the fact that
the circuit court was persuaded—and actually attempted—to give Hefley the sentence
under section 217.362. Plea counsel’s erroneous assurance Hefley was eligibile for the
program, which motivated his plea from the outset, was ultimately followed by the circuit
court. The record here shows that, but for plea counsel’s error, Hefley would not have
entered the guilty plea and would have insisted on proceeding to trial.
10
Conclusion
Because the judgment overruling Hefley’s Rule 24.035 motion is clearly
erroneous, it is reversed, and the case is remanded.
______________________________
Mary R. Russell, Judge
Wilson, Powell and Fischer, JJ., concur;
Breckenridge, J., concurs in part and dissents
in part in separate opinion filed;
Draper, C.J., concurs in opinion of Breckenridge, J.
Ransom, J., not participating.
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SUPREME COURT OF MISSOURI
en banc
DUSTIN J. HEFLEY, )
)
Appellant, )
)
v. ) No. SC98876
)
STATE OF MISSOURI, )
)
Respondent. )
OPINION CONCURRING IN PART AND DISSENTING IN PART
I concur with the majority of the principal opinion’s analysis. The principal opinion
is correct that the sentencing court clearly erred by sentencing Mr. Hefley to the long-term
drug program (“LTDP”) prior to ensuring eligibility and space through the department of
corrections. The principal opinion also correctly determines the motion court incorrectly
focused on the uncertainty of Mr. Hefley’s ultimate placement in LTDP as the dispositive
issue in whether Mr. Hefley would have gone to trial and clearly erred when it overruled
Mr. Hefley’s postconviction motion because he had no plea bargain or guarantee he would
be placed in LTDP. Correctly understood, Mr. Hefley’s claim was that he would not have
pleaded guilty had he known he was ineligible for LTDP and his plea counsel was
ineffective in telling him he was eligible for LTDP when he was not.
I write separately because the principal opinion resolves Mr. Hefley’s correctly
stated postconviction claim as though it raises solely a question of law, which would only
require the Court to correctly apply the law to his claim. But Mr. Hefley’s claim presents
a mixed question of law and fact. Due to the motion court’s misunderstanding of
Mr. Hefley’s claim, it failed to make the findings of fact necessary to resolve the claim.
Without factual findings on the elements of Mr. Hefley’s correctly stated claim by the
motion court, the standard of review precludes the principal opinion from ruling on the
issue of law raised by his claim. The proper disposition under the standard of review is to
vacate the motion court’s judgment and remand the case to the motion court for more
specific findings and conclusions.
Rules 24.035(j) requires the motion court to “issue findings of fact and conclusions
of law on all issues presented, whether or not a hearing is held.” Findings and conclusions
will not be supplied by implication from the motion court’s ruling, and “must be
sufficiently specific to allow meaningful appellate review.” Burgess v. State, 342 S.W.3d
325, 328-29 (Mo. banc 2011). This is because Rule 24.035(k) provides, “Appellate review
of the trial court’s action on the motion filed under this Rule 24.035 shall be limited to a
determination of whether the findings and conclusions of the trial court are clearly
erroneous.” 1 (Emphasis added). A finding is clearly erroneous when the reviewing court
is left with a definite and firm impression a mistake has been made. Hamilton v. State, 598
1
Rule 29.15(k) provides the same, “Appellate review of the trial court’s action on the
motion filed under this Rule 29.15 shall be limited to a determination of whether the
findings and conclusions of the trial court are clearly erroneous.”
2
S.W.3d 607, 610 (Mo. banc 2020). The roles of the trier of fact and reviewing court in
cases involving contested evidence were clarified in White v. Director of Revenue, 321
S.W.3d 298 (Mo. banc 2010). It stated:
When the burden of proof is placed on a party for a claim that is denied, the
trier of fact has the right to believe or disbelieve that party’s uncontradicted
or uncontroverted evidence. If the trier of fact does not believe the evidence
of the party bearing the burden, it properly can find for the other party.
Id. at 305 (citation omitted). This is so regardless of whether the opposing party presents
any evidence. Id. A reviewing court does not re-evaluate testimony for itself. Id. at 309.
When applying this standard of review to findings of fact, appellate courts have long been
warned they “must constantly have in mind that their function is not to decide factual issues
de novo.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985).
When a claim of error on appeal presents a mixed question of law and fact, it is
necessary to separate the parts of the issue that depend on factual determinations from those
that depend on legal determinations. Pearson v. Koster, 367 S.W.3d 36, 44 (Mo. banc
2012). The Court “will defer to the factual findings made by the trial court so long as they
are supported by competent, substantial evidence, but will review de novo the application
of the law to those facts.” Id. (quoting 5 AM. JUR. 2d Appellate Review § 631 (2012)).
Here, on Mr. Hefley’s Rule 24.035 claim that his guilty plea was involuntary due to
counsel’s deficient performance, he must show he held a reasonable mistaken belief about
his eligibility for LTDP due to a positive misrepresentation from his counsel, Dorsey v.
State, 115 S.W.3d 842, 845 (Mo. banc 2003), and he suffered prejudice because he would
have gone to trial but for his mistaken belief, Johnson v. State, 580 S.W.3d 895, 900 (Mo.
3
banc 2019). Whether Mr. Hefley reasonably believed he was eligible for LTDP when he
entered his guilty plea is a question of fact. See Collins v. State, 450 S.W.2d 186, 190 (Mo.
1970) (holding the defendant’s state of mind when he entered his guilty plea is to be
decided by the trier of fact); State v. Cook, 428 S.W.2d 728, 731 (Mo. 1968) (stating that
whether a defendant has reasonable grounds for a belief is a question for the jury).
On these issues, Mr. Hefley has the burdens of production and persuasion. Rule
24.035(i); see DePriest v. State, 510 S.W.3d 331, 341 (Mo. banc 2017) (“[T]he movant is
entitled to an evidentiary hearing at which the movant will bear the burden of persuading
the motion court that the alleged facts are true.”). Because Mr. Hefley has the burdens of
production and persuasion, the motion court had the right to believe or disbelieve
Mr. Hefley’s uncontradicted, but contested evidence. White, 321 S.W.3d at 305. And if
the motion court did not believe Mr. Hefley’s evidence, it could properly find for the state
regardless of whether the state presented any evidence. Id. The motion court, however,
did not make any findings with regard to whether Mr. Hefley’s mistaken belief about his
eligibility for LTDP was objectively reasonable; that plea counsel affirmatively
represented to Mr. Hefley that he was eligible for LTDP; or that Mr. Hefley would have
gone to trial but for his mistaken belief.
As the principal opinion expressly acknowledges, the motion court has not
determined whether Mr. Hefley “would not have pleaded guilty if he had accurately been
counseled on his ineligibility for the LTDP.” Instead, regarding plea counsel’s
representations to Mr. Hefley about LTDP eligibility, the motion court found plea counsel
advised Mr. Hefley “that whether he would be eligible would be a ‘DOC question’” and
4
“[a]ll that was demonstrated at the hearing” was that plea counsel believed Mr. Hefley
“would be eligible, but that it would ultimately be up to the Department of Corrections.”
With respect to whether Mr. Hefley would have gone to trial, rather than plead guilty, the
motion court focused on the uncertainty that Mr. Hefley would ultimately be placed in
LTDP. It found Mr. Hefley “entered a plea without an agreement and, therefore, knew that
he could be sentenced anywhere in the range of punishment for a Class B felony,” so he
“had no reasonable basis to expect he would, in fact, receive long term treatment.” These
findings are clearly erroneous and warrant reversal, but there are no other findings that
would permit this Court to go a step further and conclude Mr. Hefley proved an ineffective
assistance of counsel claim.
Nevertheless, the principal opinion finds Mr. Hefley established Strickland
prejudice because “there is evidence suggesting Hefley’s plea was grounded on his
eligibility in the program.” Slip op. at 10 (emphasis added). It states:
Hefley testified he would not have pleaded guilty had he known there was
no possibility of being accepted into the LTDP. Plea counsel testified Hefley
decided to plead guilty based on the representation he would argue for
Hefley’s placement in the LTDP. Nothing in the record or judgment denying
postconviction relief suggests otherwise.
Slip op. at 9. The principal opinion then decides Mr. Hefley’s mistaken belief regarding
his eligibility for LTDP was reasonable and he would have gone to trial but for his mistaken
5
belief. Further, it determines the legal effect of these facts – that Mr. Hefley received
ineffective assistance of counsel. 2
In so ruling, the principal opinion cites Dobbins v. State, 187 S.W.3d 865, 867 (Mo.
banc 2006); Stuart v. State, 565 S.W.3d 766, 777 (Mo. App. 2019); and Williams v. State,
563 S.W.3d 750, 756 (Mo. App. 2018), opinion adopted and reinstated after retransfer
(Jan. 15, 2019), as examples of appellate courts finding plea counsel ineffective for
affirmatively misrepresenting a defendant’s eligibility in a DOC program. And, indeed,
those cases found plea counsel ineffective. However, the opinions do not analyze whether
the motion courts’ findings were sufficiently specific to permit meaningful appellate
review and that absence of analysis cannot be read to mean the Court does not have to
review the sufficiency of the motion courts’ findings. This Court’s review is limited to the
motion court’s “findings and conclusions,” Rule 24.035(k), and those findings “must be
sufficiently specific to allow meaningful appellate review,” Barry v. State, 850 S.W.2d
348, 350 (Mo. banc 1993); see also Edwards v. State, 200 S.W.3d 500, 513 (Mo. banc
2006) (holding the same for review of a motion court’s judgment on a Rule 29.15 motion).
For that reason, the fact the Dobbins, Stuart, and Williams opinions do not expressly
analyze the sufficiency of the motion-court findings does not support the proposition that
the Court is permitted to make factual determinations de novo and decide the merits of an
ineffective assistance of counsel claim.
2
In light of these rulings, on remand, there is nothing left for the motion court to do other
than to enter a judgment in favor of Mr. Hefley consistent with the principal opinion.
6
Rather, when the issue on appeal is a mixed question of law and fact and the motion
court’s factual findings do not permit meaningful appellate review, there is nothing for this
Court to review. See Franklin v. State, 501 S.W.2d 166, 173 (Mo. 1973). In the absence
of findings in the motion court’s judgment, the principal opinion’s reliance on the evidence
as true is, in effect, deciding the facts de novo. This Court, however, cannot determine
facts for itself. See Hammons v. Ehney, 924 S.W.2d 843, 850 (Mo. banc 1996) (“An
appellate court may not reverse a decision below upon its own determination of facts.”).
As a result, the lack of factual findings on the mixed question of law and fact in this case
precludes meaningful appellate review, and the proper course is to reverse and remand for
the motion court to make findings of fact on the matter as was done in Ervin v. State, 80
S.W.3d 817 (Mo. banc 2002). In Ervin, the movant filed a motion for postconviction relief
under Rule 29.15, asserting, among other things, his trial counsel had been ineffective for
failing to investigate an allegation that he threatened and attacked his cellmate, which was
considered as a non-statutory aggravating circumstance during the penalty phase. Id. at
820, 825. The motion court, however, failed to make sufficiently specific findings and
conclusions on the claim that counsel failed to investigate the allegation. Id.This Court held the motion court’s insufficiently specific findings did not permit
meaningful appellate review but noted testimony at the postconviction relief hearing
supported the movant’s claim. Id. at 825. However, rather than determining factual issues
de novo and deciding whether trial counsel’s failures constituted ineffective assistance of
counsel, the Court held the questions “should be addressed by the motion court in the first
7
instance.” Id. at 827. As a consequence, it remanded the case to the motion court for
“more specific findings and conclusions on the issue.” Id.Application of the standard of review in this case requires the same disposition. The
motion court’s factual findings are insufficiently specific with regard to whether
Mr. Hefley’s mistaken belief about his eligibility for LTDP was objectively reasonable and
whether he would have gone to trial but for his mistaken belief. The motion court made
no findings in regard to these ultimate facts nor did it make any findings that would permit
this Court to decide them. A remand in this case is required because the motion court could
properly grant or deny Mr. Hefley’s claim. The motion court could find Mr. Hefley’s
testimony and that of his plea counsel is credible, in which case it could properly grant
relief. But the motion court, in its discretion, could find the testimony not credible, in
which case there would be no credible evidence to support Mr. Hefley’s claim and the
motion court could properly deny relief. Consequently, the Court should follow Ervin and
remand for the motion court to make the factual findings necessary to adjudicate
Mr. Hefley’s claim – whether Mr. Hefley’s mistaken belief about his eligibility for LTDP
was objectively reasonable and whether he would have gone to trial but for his mistaken
belief.
The motion court’s findings were clearly erroneous. For that reason, the findings,
and the conclusions based on those findings, must be reversed. It is a step further, however,
for the Court to assume the role of the motion court, determine Mr. Hefley’s testimony and
that of his plea counsel is credible, and decide Mr. Hefley proved the ultimate facts relevant
to his claim. The motion court may very well find Mr. Hefley failed to prove the ultimate
8
facts relevant to his claim. Consequently, I concur that the judgment must be reversed and
remanded, but cannot concur in determining the credibility of witnesses and making
findings of fact de novo.
___________________________________
PATRICIA BRECKENRIDGE, JUDGE
9