State v. RalstonState v. Ralston
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Randall Ralston appeals the judgment of the circuit court following a hearing denying his Rule 29.07 motion to withdraw his guilty plea and sentence to a term of fifteen years imprisonment. Mr. Ralston
The legal history of this case is protracted, tortuous, confusing, and unusual. Mr. Ralston was first convicted of possession of a controlled substance (methamphetamine),
Following a change of venue from Adair to Linn County, Mr. Ralston entered a guilty plea to an amended information charging possession of a controlled substance,
Thereafter, Mr. Ralston filed a petition for a writ of habeas corpus in the Circuit Court of Randolph County, which was sustained on August 26, 1999. The court found that the maximum penalty provided by law was 15 years imprisonment. As such, the habeas court found that the sentencing court had been without jurisdiction to impose a sentence of 20 years imprisonment, vacated Mr. Ralston’s sentence, and remanded the case to the Circuit Court of Linn County for resentencing.
Before Mr. Ralston was sentenced for the third time, he filed his Rule 29.07 motion to withdraw his November 1992 guilty plea on October 12, 1999. Mr. Ral-ston alleged that his guilty plea was unknowing and involuntary because he had been incorrectly advised regarding the possible maximum sentence for his offense. He claimed that he would not have pleaded guilty but would have gone to trial had he been informed that the correct maximum penalty for the offense was 15 years imprisonment and not 30 years as he was advised.
An evidentiary hearing was held on December 13, 1999, to consider Mr. Ralston’s Rule 29.07 motion. Following the hearing, the circuit court denied Mr. Ralston’s motion finding that “[djocumentation in court file does not support defendant’s contention that he was informed the range of punishment was 30 years.” The circuit court then sentenced Mr. Ralston to a term of 15 years imprisonment. This appeal followed.
In this first point on appeal, which is dispositive, Mr. Ralston claims that the circuit court clearly erred in denying his Rule 29.07 motion to withdraw his guilty plea. He contends that his guilty plea was unknowing, unintelligent, and involuntary because the plea court incorrect
Rule 29.07(d) provides:
A motion to withdraw a plea of guilty may be made only before sentence is imposed or when imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea.
Rule 29.07(d). A defendant does not have an absolute right to withdraw a guilty plea. State v. Taylor, 929 S.W.2d 209, 215 (Mo. banc 1996), cert. denied, 519 U.S. 1152, 117 S.Ct. 1088, 187 L.Ed.2d 222 (1997). “The ultimate test whether a plea should be set aside is whether it was made unintelligently and involuntarily.” State v. Nielsen, 547 S.W.2d 153, 159 (Mo.App.1977). A defendant should be permitted to withdraw a guilty plea only in extraordinary circumstances where the defendant has been misled or induced to plead guilty by fraud, mistake, misapprehension, coercion, fear, persuasion, or the holding out of false hopes. Taylor, 929 S.W.2d at 215. The defendant must prove by a preponderance of the evidence that his plea was entered unintelligently and involuntarily. Johnson v. State, 607 S.W.2d 185, 186 (Mo.App. E.D.1980).
Whether to permit a defendant to withdraw a plea of guilty is within the sound discretion of the trial court. Sharp v. State, 908 S.W.2d 752, 754 (Mo.App. E.D.1995). In reviewing the denial of a Rule 29.07 motion to withdraw a guilty plea, the reviewing court is to determine whether the trial court abused its discretion or was clearly erroneous. Taylor, 929 S.W.2d at 215; Sharp, 908 S.W.2d at 755.
An initial matter that must be addressed is whether Mr. Ralston’s claim was properly raised in the Rule 29.07 motion to withdraw his guilty plea. The trial court alluded to and the State claims in this appeal that the issue should have been raised in a timely Rule 24.035 motion for postconviction relief. 1 While Rule 24.035 provides the exclusive remedy for claims that the court imposing the sentence was without jurisdiction to do so or that the sentence imposed was in excess of the maximum sentence authorized by law, 2 the claim in this case was that Mr. Ralston’s guilty plea was entered unintelligently and involuntarily because he received incorrect advice at the guilty plea hearing regarding the maximum range of punishment. Rule 29.07 provides that a motion to withdraw a guilty plea may be made before sentence is imposed. Rule 29.07(d). Where a judgment remanding a case for resentencing neither affirms or reverses the guilty plea, the sentencing court can consider a Rule 29.07 motion. Taylor, 929 S.W.2d at 215; State v. Nunley, 923 S.W.2d 911, 919 (Mo. banc 1996), cert. denied, 519 U.S. 1094, 117 S.Ct. 772, 136 L.Ed.2d 717 (1997). In this case, Mr. Ralston filed his Rule 29.07 motion to withdraw his guilty plea after the Circuit Court of Randolph County sustained his petition for writ of habeas corpus, vacated his sentence, and remanded the case to the Circuit Court of Linn County for resentencing. The judgment remanding the cause to Linn County Circuit Court did not affirm or reverse Mr. Ralston’s guilty plea. The habeas court specifically remanded the case for resen-tencing, not for a new plea hearing. Thus, the sentencing court in this case could consider Mr. Ralston’s Rule 29.07 motion to withdraw his guilty plea.
Rule 24.02 requires that before a plea of guilty may be accepted in a criminal case, the defendant must be informed of “[t]he nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law.” Rule 24.02(b)(l)(emphasis added). “Among the purposes of Rule 24.02 is the intention that the court be convinced that the defendant understands the specific charges and the maximum penalty confronting him and that the defendant recognizes that by pleading guilty, he waives a number of legal rights.” Steinle v. State, 861 S.W.2d 141, 143 (Mo.App. W.D.1993). Failure to comply with the formal requirements of Rule 24.02(b) alone, however, does not necessarily require that the guilty plea be set aside. Id.; Dean v. State, 901 S.W.2d 323, 328 (Mo.App. W.D.1995). The defendant must have been prejudiced by the violation. Id. See also United States v. Timmreck, 441 U.S. 780, 785, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979)(collateral relief is not available when all that is shown is a failure to comply with the formal requirements of Federal Rule 11, which is similar to Rule 24.02(b); prisoner did not argue that if he had been properly advised of the mandatory special parole term by the trial judge, he would not have pleaded guilty). An affirmative misstatement of the maximum possible sentence must have been material to the defendant’s decision to plead guilty to compel the withdrawal of the plea. Id.
The State claims that the circuit court did not incorrectly advise Mr. Ralston regarding the range of punishment for the charged crime. It contends that 30 years imprisonment was the maximum possible penalty Mr. Ralston faced for possession of a controlled substance as a prior drug offender and a prior and persistent offender. The State’s contention, however, is incorrect.
Mr. Ralston was originally charged as a prior drug offender and a prior and persistent offender with possession of a controlled substance,
The transcript of the guilty plea hearing demonstrated that the plea court incorrectly advised Mr. Ralston that the maximum possible penalty for the charged offense was 30 years imprisonment:
THE COURT: I’ve asked the prosecuting attorney to explain the range of punishment involved here based on the findings that have been declared by the Court to be a prior drug offender and a prior persistent offender, that the range of punishment is a minimum of five years in prison and a maximum of 30 years in prison. Is that your understanding of the range of punishment?
THE DEFENDANT: Yes, sir.
In its judgment denying Mr. Ralston’s motion to withdraw his guilty plea, the circuit court found that the record did not support Mr. Ralston’s contention that he was informed that the maximum penalty possible for possession of a controlled substance was 30 years. Based on the record, this finding was clearly erroneous and an abuse of discretion.
Mr. Ralston’s guilty plea may have been rendered unintelligent and involuntary by the incorrect information regarding the maximum penalty provided by law for the charged offense.
See Wiles v. State,
812 S.W.2d 549, 551 (Mo.App. S.D.1991)(where defendant was incorrectly informed that maximum punishment for charged offenses was life imprisonment rather than 30 years imprisonment, his guilty plea may have been rendered involuntary);
Perryman v. State,
755 S.W.2d 598, 602 (Mo.App. W.D.1988)(where defendant was advised that maximum penalty for charged offense was 60 years imprisonment and maximum punishment may have only been 15 years imprisonment, defendant’s guilty plea may have been involuntary). After being informed that the maximum possible punishment for the charged offense was greater than the maximum penalty provided by law, Mr. Ralston pleaded guilty under a plea agreement offering a sentence recommendation of a term of imprisonment greater than authorized by law. He was effectively informed that the risk of going to trial was greater than it actually was. Such misinformation may have induced him to plead guilty or may have been a material factor in his decision to plead. Mr. Ralston must be given an opportunity to demonstrate that the plea court’s incorrect advice regarding the maximum possible punishment prejudiced him. The judgment of the circuit court denying Mr. Ralston’s Rule 29.07 motion to withdraw his guilty plea and the sentence of 15 years imprisonment are reversed, and the case is remanded to the circuit court for proceedings and findings
ELLIS and EDWIN H. SMITH, JJ„ concur.
Notes
. The transcript of the hearing on the 29.07 motion and the docket sheet of the court’s judgment are unclear as to whether the trial court actually relied on this finding to deny the motion.
. Rule 24.035(a).
. “Under