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Gresham v. State1/24/2002
Appeal From: Circuit Court of Pulaski County, Hon. Douglas E. Long, Jr.
Opinion Vote: AFFIRMED.
Garrison, P.J., and Rahmeyer, J., concur.
Opinion:
Johnnie Gresham (movant) was convicted of assault in the second degree following a plea of guilty. Section 565.060.1(4), RSMo 1994. He was sentenced to seven years' imprisonment.
Following incarceration, movant filed a motion for post-conviction relief as permitted by Rule 24.035. Counsel was appointed and an amended motion filed. The motion was denied after an evidentiary hearing. This court affirms.
Movant's amended motion characterized his sentence in the underlying criminal case as "seven years imprisonment (without a 120-day call-back under Section 559.115)." The motion asserts as grounds for vacating his conviction and sentence "that movant was not afforded an opportunity to withdraw his plea of guilty upon the [trial] Court's rejection of the plea agreement."
Movant filed a written "Petition to Enter Plea of Guilty" in the underlying criminal case. Paragraph 13 of the motion states:
I declare that no police officer or agent of any federal, state or local law enforcement agency has promised that I will receive a lighter sentence or probation or any form of leniency if I plead GUILTY, except as follows: no_________________________________________________________________________ ________________________________________________________.
The Prosecuting Attorney has promised me that if I plead GUILTY, he will do the following: recomend 7 year sentence under 559.115____________________________________________________________________ ________________________________________________________.
If anyone else made any promises to me, I know that he had no authority to do so. I know that the sentence I will receive is completely within the control of the Judge. I hope to receive lenience, but I am prepared to accept any punishment permitted by law which the Court sees fit to impose. However, I respectfully request the Court to consider, in mitigation of punishment, that I have voluntarily entered a PLEA OF GUILTY.
The underlined words are handwritten on printed lines.
At the guilty plea hearing in movant's criminal case, the trial court inquired if there was a plea agreement. The defendant answered, "Yes." The prosecuting attorney told the trial court:
Your Honor, my understanding is that [movant] will request a PSI -- that the plea agreement is that upon his plea of guilty, the State will recommend that he be sentenced to the Department of Corrections for a period of seven years. The State has agreed to recommend sentencing under 559.115 with some special conditions of probation if, in fact, he is granted probation.
The trial judge then asked the following questions and the participants gave the following answers:
THE COURT: All right. Defense counsel, is that, in fact, the plea agreement here?
[DEFENSE ATTORNEY]: Yes, it is.
THE COURT: Thank you, ma'am. Is that your plea agreement as you understand it, Mr. Gresham?
[MOVANT]: Yes.
THE COURT: Is that your complete plea agreement?
[MOVANT]: Yes.
The trial judge explained various rights possessed by defendants in criminal cases and inquired as to movant's understanding of those rights. At the conclusion of the trial judge's inquiry, movant's attorney was permitted to ask questions. She showed movant the Petition to Enter Plea of Guilty and asked if he recognized the document. He answered, "Yes, ma'am." The attorney asked movan
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