Introduction
Vаndyne Ervin (Movant) appeals the judgment denying his Rule 24.035
Background
Movant was charged by information with one count of the class C felony of receiving stolen property in excess of $500.00. The State offered a plea deal of a seven-year suspended sentence with five years of prоbation, and Movant agreed to plead guilty to receiving stolen property in excess of $500.00.
At the plea hearing, the State asserted it could prove that Movant “with purpose to deprive the owner of liquor and beer, received, retained, or disposed of property of at least $500[.00] knowing or beliеving that it had been stolen.” Movant specifically admitted he had received seventeen bottles of liquor that he had reason to believe were stolen and had stored the bottles in the garage of a residence in which he was staying. Movant responded in the affirmative to questions of whether his trial counsel (Trial Counsel) had investigated the case to his satisfaction and whether he was satisfied she had all the information she needed to represent him. The trial court sentenced Movant in accordance with the plea agreement to a suspended term of seven years in the Missouri Department of Corrections and fivе years of probation. As part of the plea agreement, Movant agreed to pay $605.00 in restitution. Mov-ant’s probation was later revoked and his seven-year sentence ordered executed. He was delivered to the Missouri Department of Corrections on January 25, 2012.
Movant timely filed a pro se motion for post-conviction rеlief. In his amended motion, filed through appointed counsel, he asserted Trial Counsel was ineffective for failing to investigate his case and failing to advise him that the evidence in the case did not support a conviction for felony receiving stolen property. Rather, the evidence showed that the value of the stolen property he received was less than $500.00, making the crime a misdemeanor. Movant asserted that Trial Counsel had received discovery from the State prior to his guilty plea on September 5, 2006, stating the value of the stolen property was under $500.00, but she did not review the information. Had he known that the discоvery showed the value of the stolen items to be under $500.00, he would not have pleaded guilty to felony receiving stolen property.
At a hearing on the motion, Movant testified to the following. On August 23, 2006, before he pleaded guilty, he requested that Trial Counsel provide him with a copy of the discovery. He met with Trial Counsel two days lаter, but she did not provide him with discovery; she did, however, relay a plea offer from the State that expired at the September 5, 2006, arraignment hearing. On August 29, Movant again requested Trial Counsel provide him with discovery at the arraignment hearing. Trial Counsel requested discovery from the State on September 1. At the Septembеr 5 arraignment hearing, however, Trial
Trial Counsel testified that she did not review the list of liquor values and compare them to the list of bottles found in Movant’s possession. The victim had stated that the value of the stolen bottles was over $500.00, and Trial Counsel did not add up the value of the bottles recovered from Movant and did not realize that the amount was far less than $500.00. She explained that she had not reviewed the evidence carefully because Movant was adamant he wanted to plead and to “get it done.” On cross-examination, she agreed that the number of bottles reported stolen from the victim was greater than thе number of bottles discovered in Movant’s possession.
The motion court noted that Movant at his 2006 guilty-plea hearing stated he was satisfied with his attorney’s performance, including her investigation and advice. Moreover, at his 2012 probation-revocation hearing, Movant again answered yes to the court’s questions of whether he had had “sufficient opportunity to discuss the case with [defense counsel] before [he] pled guilty” and whether Trial Counsel did “everything [he] asked her to do prior to [ ] entering [his] plea of guilty.” Last, the motion court noted Trial Counsel had testified that Movant told her he wanted to plead guilty and “get it done.” The motion court denied Movant’s motion, finding, inter alia: (1) Movant chose to plead guilty on the day of his arraignment, telling Trial Counsel he wanted to “get it done”; (2) Movant agreed the charges filed against him were accurate; and (3) Movant’s statements at his guilty-plea and probation-revocation hearings refuted his allegations that counsel was ineffective. This appeal follows.
Standard of Review
Our review of the denial of a Rule 24.035 motion is “limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous.” Rule 24.035(k); Weeks v. State,
Discussion
In his sole point on appeal, Movant argues the motion court erred in denying his Rule 24.035 motion, because his counsel was ineffective for failing to investigate the value of the property Movant was alleged to have received, and an investigation would have revealed the value of the propеrty was less than $500.00. But for counsel’s ineffective assistance, Movant argues he would not have pleaded guilty to receiving stolen goods in excess of $500.00, but would have gone to trial. We find that Movant’s guilty plea was involuntary due to counsel’s ineffectiveness.
After a guilty plea, our review is limited to a determination of whether the underlying plea was knowing and voluntary, and counsel’s ineffectiveness is only relevant to the extent it affects the volun-tariness of the movant’s plea. Wilkins v.
A trial attorney has a duty to investigate all aspects of a defendant’s case. Anderson v. State,
Accordingly, to show that plea counsel failed to adequately investigate a case, a movant must show either that counsel failed to fulfill the obligation to conduct a reasonable investigation or failed to make a reasonable decision that a particular investigation was unnеcessary. Conger v. State,
Here, Movant clearly meets all three requirements under Anderson. He asserted the discovery provided by the State would have proven the value of the stolen liquor bottles in his possession was less than $500.00.
The record reveals that Trial Counsel failed to conduct any sort of investigation and did not carefully read the discovery in her possession.
We next consider whether, despite Trial Counsel’s ineffective assistanсe of counsel, Movant would have pleaded guilty anyway. Respondent argues on appeal that this case is similar to Voyles v. State, in which the Southern District held that, regardless of whether counsel was ineffective for failing to investigate, Voyles failed to prove he would not have pleaded guilty but would have gone to trial.
We agree with Movant, however, that Voyles is distinguishable from our case at bar. Here, although this case, as in Voyles, was resolved very quickly, discovery was completed before Movant pleaded guilty. Trial Counsel told Movant that she forgot to bring the discovery to the arraignment, showing that she had in faсt received the discovery. Likewise, at the Rule 24.035 motion hearing, Trial Counsel testified that she did not review the discovery before arraignment, which also indicates she had received discovery.
Thus, the record does not show that Movant would have pleaded guilty regardless of what the discovery revealed. Movant attempted to be involved in his defense, as demonstrated by his multiple requests for discovery, and pleaded guilty trusting that Trial Counsel had reviewed the disсovery and that the discovery supported the felony charge against him. Rather, the facts here show that Trial Counsel failed to meet her duty to conduct a reasonable investigation, in that she did not review discovery in her possession, and that, but for Trial Counsel’s ineffective assistance, Movant would not have pleaded guilty to a felony but would have gone to trial, or at least would have pleaded only to misdemeanor receiving stolen property. See Johnson,
Last, regarding Movant’s statements during his plea hearing that he was satisfied with his counsel’s performance, these statements were not sufficient to refute his claim of ineffective assistance of counsel. At the time of the plea hearing, he did not yet know that a simple review of the discovery — perhaps of less than five minutes — would show that the State’s evidence did not support the felony charged, and thus he did not know his counsel was ineffective for failing to investigate. While he was aware of counsel’s deficiencies by the time of the probation-revocation hearing, the type of general questions asked at the probation-revocation hearing regarding counsel’s performance were not sufficient to conclusively refute the allegations in his motion for post-conviction relief. See State v. Driver,
Thus, the motion court erred in denying Movant’s motion for post-conviction relief. His plea counsel provided ineffective assistance for failing to review discovery, and, but for this deficiency, he would not hаve pleaded guilty to the felony charge.
Point granted.
Conclusion
We reverse the motion court’s judgment denying Movant’s Rule 24.035 motion. The judgment on Movant’s conviction and sentence is vacated, and the cause is remanded for a trial.
Notes
. All rule references are to Mo. R.Crim. P. (2013), unless otherwise indicated.
. The list of bottle discovered in Movant’s possession were valued as follows: Canadian Mist(lL): $13.24; Jack Daniels (1L): $25.62; Jim Beam (1L): $15.21; Bellows Gin (1L): $5.67; I’m Bananas Over You(lL): $8.37; Absolut Raspberry Vodka (750 ml): $22.55; Wild Turkey (750 ml): $16.13; Bellows Vodka (1L): $7.99 (not reported stolen; current retail value); Canadian Club (1L): $14.62; Jose Cuervo Gold(lL): $19.16; Captain Morgan Spiced Rum (1L): $14.74; Windsor Canadian Whisky (1L): $10.57 Malibu Coconut Rum (1L): $13.98; UV Blue Raspberry Vodka (1L): $12.99 (not reported stolеn; current retail value); Walker’s Deluxe (1L): $9.64; Bacardi Rum (1L): $19.96; and Seagrams VO Whisky (1L): $16.42,' for a total of $246.86.
Movant's co-conspirator was also found in possession of eight liquor bottles valued as follows: two Bellows Vodka (1L): $7.99 each (not- reported stolen; current retail value); Jack Daniels (1L): $25.62; Bacardi Rum (1L): $19.96; Kessler (1L): $10.43; Captain Morgan Spiced Rum (1L): $14.74; Malibu Coconut Rum (1L): $13.98; and Walker’s Deluxe (1L): $9.64, for a total value of $110.35. The combined value of all of the bottles was $357.21.
. Moreover, Trial Counsel seemed unclear at times of the actual charge filed against Mov-ant. In her letter to Movant dated September 28, 2006, wherein she informed him she would not move to withdraw his guilty plea, she stated, “[a]s you know, you were charged with felony stealing.” Movant was not charged with felony stealing, but with receiving stolen property.
. While Movant asserted in his Rule 24.035 motion that Trial Counsel received the discovery on August 21, 2006, we do not find support for this in the record; rather, her discovery request on September 1 indicates she did not previously have the State’s evidence.