Pines v. State

REINHARD, Judge.

Movant appeals from the denial, without an evidentiary hearing, of his Rule 24.035 motion. We affirm.

Movant pled guilty to burglary in the first degree and attempted forcible rape and was sentenced to two consecutive five year prison terms.

Movant filed a pro se Rule 24.035 motion. Appointed counsel filed an amended motion which incorporated the allegations in mov-ant’s pro se motion. Movant alleged, inter alia, that his plea was induced by counsel’s false assurance that he would receive concurrent, not consecutive, sentences. He further alleged that counsel instructed him to lie when asked by the court if any promises had been made to him. Movant’s request for an evidentiary hearing was denied on the basis that his allegations were refuted by the transcript of the plea hearing.

On appeal, movant raises one point: The motion court clearly erred in denying an evidentiary hearing for [movant’s] claim that his attorney firmly assured him he would receive two concurrent five year terms and that she told him to tell the court he had received no other assurances. [Movant’s] claim that his attorney, in effect, told him to lie in answering the court requires a hearing for the judge to make its findings of fact. By the nature of the allegation, the guilty plea transcript would not reliably reflect whether [counsel] had made false assurances to induce [movant’s] guilty plea or whether she told him to lie when answering the trial court. [Mov-ant’s] fourteenth amendment due process rights require an evidentiary hearing.[¹]

(Emphasis added.)

The record reveals that movant was charged as a prior and persistent offender; he pled guilty in 1982 to unlawful use of a weapon and in 1976 to assault with intent to do great bodily harm. At least one of the pleas resulted from plea bargaining.

At the plea hearing, movant was placed under oath and questioned. He testified he was 42 years of age and had gone to school until he was a sophomore in college. The prosecuting attorney then recited the state’s evidence: Movant entered a building located at 1716 Union, which building was in the possession of two females; he did so for the purpose of committing a rape therein; he entered through a bathroom window, awoke one of the females, forcibly removed her underwear and attempted to have sexual intercourse with her without her consent; he was not married to her and she did not consent to any of the acts. Movant testified he did not disagree with any of these statements; nor does movant contend on appeal that he is not guilty of the charges.

Responding to questions from the judge, movant said he did not give his lawyer the names of any witnesses to contact, no threats or promises had been made to him in order to obtain the plea and no one told him to say anything but the truth during the proceeding. He said his attorney did everything he asked her to do and she informed him of the full range of punishment.

The following exchange took place between the court and prosecuting attorney:

Q. What is the State’s recommendation on this matter?

A. As to Count I, Your Honor, five years; and as to Count II, five years, to run consecutively. For a total of ten.

The court then asked movant:

Q. And is that the recommendation your attorney told you the state would make if you entered this plea of guilty.

A. Yes, she informed me it would be so.

Our review is limited to determining whether the findings, conclusions, and judgment of the motion court are clearly erroneous. Rule 24.035(j); Chatman v. State, 766 S.W.2d 724, 725 (Mo.App.1989). To be entitled to an evidentiary hearing on a Rule 24.035 motion, the movant must allege facts, not conclusions, which, if true, would warrant relief; the allegations of fact must not be refuted by the record; and the matters complained of must have resulted in prejudice to the movant’s defense. Id.

It is well settled that “a mere allegation that [a movant’s] attorney told him to lie at his guilty plea hearing does not entitle [the] movant to an evidentiary hearing.” LaRose v. State, 724 S.W.2d 339, 340 (Mo. App.1987); See also, Wade v. State, 698 S.W.2d 621, 623 (Mo.App.1985); Blade v. State, 558 S.W.2d 352, 355 (Mo.App.1977). Here, not only did movant testify that no promises had been made to him, but he also stated to the court that he had not been told to answer the court’s questions other than truthfully. Furthermore, movant heard the prosecutor recommend consecutive sentences and he acknowledged that his attorney told him in advance that this would be the state’s recommendation in exchange for his guilty plea. Thus, mov-ant’s allegations are refuted by the record and the motion court properly denied his motion without an evidentiary hearing.

Judgment affirmed.

SIMON, C.J., and SMITH, STEPHAN, CRIST, CRANDALL, KAROHL, GARY M. GAERTNER and GRIMM, JJ., concur.

CARL R. GAERTNER, J., dissents with separate opinion.

HAMILTON, J., concurs in Judge CARL R. GAERTNER’s dissenting opinion. PUDLOWSKI, J., concurs in dissenting opinion of CARL R. GAERTNER, Judge, and dissents in separate opinion.

1 . Movant attempted to raise another issue in oral argument. He claims that he is entitled to an evidentiary hearing because the court failed to comply with Rule 24.02(d)(3) which provides, “If the court accepts the plea agreement, the court shall inform the defendant that it will embody in the judgment and sentence the disposition provided for in the plea agreement.” Counsel admits that this issue was not raised in movant's point on appeal. We note that it was not raised in his pro se or amended motion. Issues not raised in a post-conviction relief motion are waived and cannot be raised on appeal. Wells v. State, 621 S.W.2d 553, 554 (Mo.App. 1981). Nor can issues not raised in movant’s point be considered on appeal. State v. Seeger, 725 S.W.2d 39, 44 (Mo.App.1986).