420 S.W.3d 597
Mo. Ct. App.2013Background
- Movant Sabatucci appeals the denial of his Rule 24.035 motion for post-conviction relief after an evidentiary hearing.
- Movant claims plea counsel was ineffective for not advising him about a motion for change of judge and that prejudice would have caused him to keep his original judge.
- Original venue was Newton County with Judge Perigo; venue and judge were changed to McDonald County with Judge Selby.
- Movant pleaded guilty open vs. Judge Selby on January 24, 2008; sentencing followed: life for second-degree murder and 15 years for second-degree vehicular assault, concurrent.
- Movant filed pro se Rule 24.035 motion; amended motion alleged ineffective assistance for failing to advise about change of judge/venue; evidentiary hearing held; motion court denied.
- The appellate court affirmed, holding that the ineffective-assistance claim is waived by a knowing and voluntary guilty plea; no reversible error.
- The plea court previously found Movant’s plea knowingly and voluntarily made, and the motion court did not address voluntariness since not challenged in the motion; judgment affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plea counsel’s failure to advise about change of judge is ineffective assistance given the guilty plea waiver | Movant argues counsel’s lack of advice caused prejudice | Movant’s guilty plea and the court’s findings negate the claim; waiver applies | Denied; movant waived due to valid guilty plea |
Key Cases Cited
- Roberts v. State, 276 S.W.3d 833 (Mo. banc 2009) (clear erroneous standard; burden on movant to show error by preponderance of the evidence)
- Staker v. State, 357 S.W.3d 300 (Mo. App. 2012) (prejudice required for ineffective assistance in post-conviction context)
- Cooper v. State, 356 S.W.3d 148 (Mo. banc 2011) (waiver of IAC claims when guilty plea valid; pre-plea errors not preserved after plea)
- Garris v. State, 389 S.W.3d 648 (Mo. banc 2012) (pre-plea IAC claims become moot when guilty plea is knowingly and voluntarily made)
- Feldhaus v. State, 311 S.W.3d 802 (Mo. banc 2010) (expression of waiver and voluntariness principles in guilty plea context)
- Roll v. State, 942 S.W.2d 370 (Mo. banc 1997) (plea-based waiver of non-jurisdictional defects; pre-plea claims relate to voluntariness)
- Moss v. State, 10 S.W.3d 508 (Mo. banc 2000) (definition of ‘reasonable probability’ in prejudice analysis)