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Ross v. State7/17/2000
original trial counsel were ineffective in not ascertaining and advising movant that his charge could be amended to charge him as a persistent offender and subject him to an extended punishment, movant was not prejudiced. The motion court did not find movant's testimony that he would have accepted the negotiated plea offer had he been so informed credible.
The state points out that after movant was arraigned on the amended information that charged him as a persistent offender, movant did not reopen negotiations to plead guilty. The state further observes that movant has cited no case holding that counsel can be ineffective for failing to point out ranges of punishment for offenses other than that charged. The state argues that movant's trial counsel was not required to be clairvoyant so as to advise movant that the state might add additional charges or elect to use enhancement of punishment provisions if movant did not accept the negotiated plea offer the state tendered.
This court finds the state's argument compelling. In State v. Cottrell, 910 S.W.2d 814 (Mo.App. 1995), the court discussed a trial attorney's failure to predict a change in the law as to a particular instruction used at trial. The change occurred after the trial. Cottrell concluded trial counsel's performance in that case was to be evaluated based on the law existing at the time of the trial. Id. at 817. That rationale is equally applicable to a trial attorney's obligation to correctly inform a criminal defendant of the applicable range of punishment for a particular offense. The range of punishment that must be explained is the punishment applicable to the offense charged at the time the advice is given.
The range of punishment movant's trial attorney conveyed was the correct range of punishment for the offense charged at the time of the plea negotiations. Movant's complaint is that his attorney failed to predict later changes to the charge that affected the range of punishment. This court does not find that movant's attorney was required to predict those changes and advise movant that they might be made.
Regardless, the motion court concluded that movant would not have accepted the negotiated plea offer if he had known the charge would be amended. That finding is not clearly erroneous. As the state points out, movant did not explore the possibility of pleading guilty the day of trial after the charge was amended. His lack of effort in that regard undermines his claim that he would have accepted the negotiated plea offer if he had known the charge could be amended. The motion court did not err in finding movant was not prejudiced by his trial attorney's failure to advise him that his criminal charge could be amended to charge him as a persistent offender and subject him to a greater range of punishment. Movant's point is denied. The judgment denying the Rule 29.15 motion is affirmed.
Separate Opinion:
None
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