SHANNON LEE DAVIDSON, a/k/a SHANNON LEE NELSON, Movant-Appellant v. STATE OF MISSOURI, Respondent-Respondent.

SHANNON LEE DAVIDSON, )
a/k/a SHANNON LEE NELSON, )
)
Movant-Appellant, )
)
vs. ) No. SD32999
)
STATE OF MISSOURI, ) Filed: June 27, 2014
)
Respondent-Respondent. )
APPEAL FROM THE CIRCUIT COURT OF DUNKLIN COUNTY
Honorable Robert N. Mayer, Circuit Judge
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH
DIRECTIONS
Shannon Lee Davidson ("Movant")1 appeals the motion court's dismissal without an
evidentiary hearing of the portions of her Rule 24.0352 post-conviction motion that
challenged the validity of her sentence. Movant pleaded guilty in March 2012 to
endangering the welfare of a child in the first degree, see section 568.045, but she
subsequently failed to appear for her sentencing hearing. Movant was apprehended six
months later, and the trial court imposed a seven-year sentence in the Missouri Department
of Corrections ("DOC").
1
Movant was originally charged under the name "Shannon Lee Nelson[.]"
2
All rule references are to Missouri Court Rules (2013). All statutory references are to RSMo Cum. Supp.
2012.
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Movant's single point contends the motion court clearly erred when it "dismissed all
of her claims under the escape rule" because the rule "cannot be applied to conduct which
occurred after the defendant was recaptured[,]" and her complaints about her sentencing
occurred "post-escape and recapture." The State's position is that "[a]n evidentiary hearing
is required for two of [Movant's] claims that arose after she was recaptured."
Because Movant's claims that: (1) her right to due process was denied when the plea
agreement was allegedly breached at sentencing; and (2) she received ineffective assistance
of counsel at sentencing when plea counsel did not ask the trial court to either honor the plea
agreement or allow Movant to withdraw her guilty plea (collectively, "sentencing claims")
address conduct that occurred after Movant was recaptured, the motion court clearly erred in
dismissing these two claims based upon the escape rule. As a result, we reverse the
dismissal of the sentencing claims and remand them to the motion court for a resolution on
the merits. We affirm the dismissal in regard to Movant's challenges to the validity of her
guilty plea.
Factual and Procedural Background
Movant was charged with two counts of endangering the welfare of a child. At the
plea hearing, the assistant prosecutor announced that Movant would be pleading guilty only
to Count I. In exchange for that plea, the State would dismiss Count II and recommend that
Movant receive a seven-year sentence and not oppose the sentence being executed pursuant
to section 217.362.3
3
Section 217.362 provides for "an intensive long-term program for the treatment of chronic nonviolent
offenders with serious substance abuse addictions who have not pleaded guilty to or been convicted of a
dangerous felony as defined in section 556.061." The section also provides that the offender's sentence may be
suspended in favor of probation in the discretion of the trial court upon the successful completion of the
treatment program. Section 217.362.2 and .3.
2
The court accepted Movant's guilty plea and set her sentencing hearing for April 11,
2012. The hearing was subsequently reset to April 16, 2012, and Movant failed to appear on
that date. Movant concedes in her brief that she "missed an appointment for her pre-
sentence investigation and then missed her sentencing hearing."
Movant was eventually captured, and her sentencing hearing took place on
November 14, 2012. The prosecutor informed the court that the agreement at the time of
Movant's guilty plea was that the State would "recommend a seven-year sentence pursuant
to [s]ection 217.362." The State's recommendation at the sentencing hearing was that the
trial court sentence Movant "to a full seven-year term, not to proceed to [s]ection 217.362."
The prosecutor stated that "it was announced at the time [of Movant's guilty plea] that
should [Movant] violate the terms of her bond that the State would not be recommending
long-term substance abuse treatment center and she'll be subject to the full range of
punishment." No such announcement appears in the record of the guilty plea.
Movant's counsel requested that the trial court sentence Movant "to long-term
treatment, even though she showed poor judgment in not coming back to court like she was
supposed to." The trial court imposed a seven-year sentence without any referral to long-
term treatment under section 217.362.
After announcing its sentence, the trial court made the following record regarding
Movant's level of satisfaction with her attorney:
[Trial Court]: Ma'am, are you satisfied with your attorney's representation
in this case?
[Movant]: Yes, sir.
[Trial Court]: Excuse me?
[Movant]: Yes, sir.
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[Trial court]: Having examined [Movant] the Court finds no probable
cause to believe there has been ineffective assistance of
counsel.
Movant timely filed a pro se motion to set aside her conviction and sentence.
Appointed counsel subsequently filed an "AMENDED MOTION TO VACATE, SET
ASIDE OR CORRECT JUDGMENT AND SENTENCE" ("the amended motion") that
presented six claims. In this appeal, Movant concedes that three of those six claims
concerned errors that occurred entirely prior to sentencing and that the motion court
therefore did not clearly err in dismissing them based upon the escape rule.
In her brief, Movant states that one of the remaining three claims "might apply to
sentencing or pre-plea conduct[.]" That claim is that plea counsel
incorrectly informed Movant of how much time Movant would have to serve
in [DOC] before she became eligible for parole. Plea [c]ounsel's failure to
properly inform Movant of the correct amount of time required to be served
in prison prior to becoming eligible for parole rendered Movant's guilty plea
involuntary.
As earlier noted, the motion court found that "[a]ll [six] of the alleged errors
occurred before [M]ovant's escape, and the claims should be barred by the escape rule. In
the exercise of its discretion, the [motion c]ourt determines that the post-conviction motion
filed by [M]ovant under Rule 24.035 should be dismissed under the escape rule." This
appeal timely followed.
Applicable Principles of Review and Governing Law
"Appellate review of a motion court's ruling on a Rule 24.035 motion is limited to
determining whether the motion court's findings and conclusions are clearly erroneous. Rule
24.035(k)." Mackley v. State, 331 S.W.3d 733, 734 (Mo. App. E.D. 2011). The motion
court must hold an evidentiary hearing when three requirements are satisfied: "(1) the
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motion must allege facts, not conclusions, warranting relief; (2) the facts alleged must not be
refuted by the files and records of the case; and (3) the allegations must have resulted in
prejudice." Wilkes v. State, 82 S.W.3d 925, 928 (Mo. banc 2002). An evidentiary hearing
may be denied only "when the record conclusively shows that the movant is not entitled to
relief. Rule 29.15(h) (emphasis added)." Id.
"The 'escape rule' generally denies the right of appeal to a defendant who attempts to
escape justice by absconding. State v. Troupe, 891 S.W.2d 808, 809 (Mo. banc 1995). The
rule also can be applied to deny post-conviction relief." Echols v. State, 168 S.W.3d 448,
451 (Mo. App. W.D. 2005). "Failure to appear for sentencing constitutes an 'escape' under
the rule." Dobbs v. State, 229 S.W.3d 651, 654 (Mo. App. S.D. 2007).
Analysis
While Movant agrees that she "absconded for several months before she was
brought before the [trial] court for sentencing[,]" and "the escape rule can be applied to [her]
pre-sentencing claims," she correctly maintains that "[t]he escape rule does not apply to
errors that occurred after the defendant was recaptured[,]" citing Robinson v. State, 854
S.W.2d 393, 396 (Mo. banc 1993) (post-conviction motion challenging "errors that occurred
after the movant returned to custody" was not barred by escape rule). The State
appropriately concedes that "the escape rule did not operate to preclude those claims" that
"arose after [Movant] was recaptured[.]"
The State's concession of error does not extend to Movant's claim that her attorney
affirmatively misadvised her about her parole eligibility. An ineffective assistance of
counsel claim related to a guilty plea may succeed only if the movant proves that it
"impinge[d] the voluntariness and knowledge with which the plea was made." Peiffer v.
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State, 88 S.W.3d 439, 445 (Mo. banc 2002). In that regard, "misinforming—in contrast to
failing to inform—may affect the voluntariness of a defendant's plea." Webb v. State, 334
S.W.3d 126, 129 (Mo. banc 2011). Here, Movant's claim fails no matter when the alleged
misadvice was given. If it was provided after Movant was recaptured, it could not have
affected Movant's earlier decision to plead guilty. And if it was given before Movant
absconded, the motion court did not clearly err by dismissing it based upon the escape rule.
The dismissal of the sentencing claims (paragraphs 8(c) and (d) of the amended
motion) is reversed, and those claims are remanded to the motion court to decide on the
merits in a manner consistent with this opinion.4 In all other respects, the dismissal is
affirmed.
DON E. BURRELL, J. - OPINION AUTHOR
JEFFREY W. BATES, P.J. - CONCURS
GARY W. LYNCH, J. - CONCURS
4
In Robinson, our high court "express[ed] no opinion as to the merits of [the movant's] motion or as to what
relief would be appropriate if [the movant] should prevail." 854 S.W.2d at 396. It simply reversed the
dismissal and "the cause [was] remanded for further proceedings in accordance with [its] opinion." Id. Here,
the State asserts that we should also grant Movant's request for an evidentiary hearing on the claims it concedes
were solely related to her sentencing hearing. The motion court may well agree with the State's position that
an evidentiary hearing is necessary. But because the motion court dismissed all of Movant's claims based
solely upon the escape rule without considering whether any of them were conclusively refuted by the record,
it should determine whether an evidentiary hearing is necessary after considering the criteria set forth in
Wilkes, 82 S.W.3d at 928.
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