Introduction
Andrew Rush, Jr., (Movant) appeals from the judgment denying his Rule 24.035 1 motion without an evidentiary hearing. We affirm.
Background
On October 20, 2004, Movant pled guilty to one count of possession of a controlled substance, a class C felony. The State recommended а suspended execution of a three-year sentence, with probation for three years. Movant requested a suspended imposition of his sentence, which the plea court granted, and the court placed him on probation for three years.
On May 9, 2007, the plea court suspended Movant’s probation after receiving a probation violation report. In June 2007, after a hearing, the court continued Mov-ant’s probation on the condition he enter and complete a thirty-day residential drug treatment program. The court extended Movant’s probаtion for three more years, to expire on October 19, 2010. On June 24, 2009, the court again suspended Mov-ant’s probation. After a hearing on July 24, 2009, the court found Movant had violated the terms of his probation, and after considering alternatives, continued Mov-ant’s probation without modification or extension.
On May 19, 2010, the plea court suspended Movant’s probation in connection with Movаnt being charged with two counts of misdemeanor stealing. At a hearing on August 27, 2010, Movant pled guilty to the stealing counts, and admitted *665 violating the terms of his probation. Mov-ant waived his right to a hearing on his probation violation. The plea court revoked his probation, and moved forward to impose sentence on Movant’s prior possession charge.
During sentencing, the court heard from Mr. Miсhael Petetit, a representative of the Lafayette Square neighborhood, where Movant had committed the stealing crimes, who asked that the court order Movant to stay out of Lаfayette Square. The court stated such an order was only possible as a term of probation because once sentenced, the court loses jurisdiction over Movant. Mr. Petetit stаted the neighborhood requested Movant be sentenced. The State recommended a five-year term of imprisonment, and Movant’s counsel requested a term of two years, citing the faсt that Movant had no prior felonies, nor had he committed any while on probation. Mov-ant’s counsel also noted that the cost of parole supervision was significantly lower than the сost of incarceration. The State then suggested on behalf of Movant’s probation officer that Movant could serve 120 days of shock time followed by another probationary pеriod, in order to save the State money and allow the court to order Movant to stay away from Lafayette Square. Movant’s counsel responded, “Well, it’s the Court’s discretion. We’re not аsking for shock time, we’re asking for straight revocation.” The State responded it was “not sure [straight revocation] serves the community.” The court denied probation and imposed a sentenсe of five years.
Movant timely filed his Rule 24.035 motion, alleging his counsel at sentencing was ineffective for requesting without permission from Movant that the sentencing court revoke Movant’s probation and sentence him to an imprisonment term of two years. Movant argued that but for counsel’s request, there was a reasonable probability that the sentencing court would have imposed a sentence requiring less than his current sentence of five years in prison. The motion court denied his motion without an evidentiary hearing, finding that the record refuted his claim, and that an action for ineffective assistance of counsel at a probation revocation hearing is not cognizable under Rule 24.035. This appeal follows.
Standard of Review
Appellate 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);
see Weeks v. State,
Discussion
As a threshold matter, Movant argues that the motion court erred in determining thаt his claim was for ineffectiveness of probation revocation counsel and thus not cognizable under Rule 24.035. We agree.
The motion court correctly noted that a Rule 24.035 motion, intendеd for claims of ineffective plea counsel, does not encompass claims of ineffective probation revocation counsel.
Wood v. State,
To prevail on this claim of ineffective assistance of counsel, Movant must meet the two-prong test set forth in
Strickland v. Washington,
Here, the motion court correctly laid out the well-established legal standard for finding counsel ineffective in the context of a guilty plea: Where there is a plea of guilty, a сlaim of ineffective assistance of counsel is immaterial “except to the extent that the conduct affected the volun-tariness and knowledge with which the plea was made.”
Worthington v. State,
However, the court applied this standard out of context, in that Movant here does not request that his plea be vacated, nor does he argue his plеa was involuntary. Rather, he argues that his sentencing counsel was ineffective, and the resulting prejudice was a longer prison sentence. “Even though sentencing does not concern the defendant’s guilt or innocence, ineffective assistance of counsel during a sentencing hearing can result in
Strickand
prejudice because ‘any amount of [additional] jail time has Sixth Amendment significanсe.’ ”
Lafler v. Cooper,
566 U.S.-,-,
Therefore, the prejudice prong of the test is met if Movant can show that but for counsel’s deficient performance, there is a reasonable probability he would have received a lesser sentence.
Eichelberger v. State,
We find that the record refutes Movant’s claim that but for his counsel’s request for a straight revocation and a two-year sentence, therе was a reasonable probability that he would have received a sentence less than five years. The sentencing court rejected Movant’s counsel’s *667 request of a two-year sеntence in favor of a five-year sentence. Presumably, it was Movant’s counsel’s statement about the cost of incarceration to the State that in part prompted an alternаtive, less costly, solution of shock time and probation from the State, which the sentencing court also rejected. The State advocated the shock time alternative also to provide protection for the Lafayette Square community, yet Mr. Petetit had requested that the court sentence Movant rather than grant probation. Furthermore, Movant had, over a six-year period, attempted to complete his initial three-year probationary period without success. Under the circumstances here, we see no reasonable probаbility that it was Movant’s counsel’s request for straight revocation with a two-year sentence that kept the court from sentencing Movant to less than five years in prison.
Because we have found Movant’s claim of prejudice is refuted by the record, we need not analyze whether his counsel’s performance was deficient.
See Scott v. State,
Conclusion
Movant has failed to allege facts entitling him to reliеf that are not refuted by the record. The motion court did not clearly err in denying Movant’s request for postconviction relief without an evidentiary hearing.
Weeks,
AFFIRMED.
Notes
. All rule references are to Mo. R.Crim. P. (2012), unless otherwise indicated.