TIMOTHY EASLEY, ) ) Movant-Appellant, ) ) v. ) No. SD36762 ) Filed: April 29, 2021 STATE OF MISSOURI, ) ) Respondent-Respondent. )
APPEAL FROM THE CIRCUIT COURT OF DUNKLIN COUNTY Honorable Robert N. Mayer, Circuit Judge
AFFIRMED Timothy Easley (Movant) appeals from an order, entered after an evidentiary hearing, that denied his amended Rule 24. 035 motion to set aside his conviction for the class A felony of assault in the first degree. See § 565.050. 1 Movant presents two points for decision. In Point 1, Movant contends the motion court clearly erred by denying relief because there was an insufficient factual basis fo r Movant’s guilty plea. In Point 2, Movant contends the motion court clearly erred by d eciding that plea counsel effectively advised Movant about the elements of first-degree assault. We affirm the motion court’s order

1 All references to rules are to Missour i Court Rules (2017). All references to statutes are to RSMo Noncum. Supp. (2014).2because: (1) Movant’s first point presents a claim that is not cognizable in this postconviction proceeding; and (2) Movant’s second point ignores the motion court’s credibility determinations. Factual and Procedural Background On August 25, 2016, a corrections officer of the Dunklin County Sheriff’s Department filed an affidavit stating that he had probable cause to believe Movant committed an assault in the first degr ee, “in that on Wednesday 08/17/2016 at approximately 10:00am [Movant] caused serious physical injury” to Doyle Gray (Victim) “by striking him in the face multiple times, resulting in numerous facial fractures.” On October 19, 2017, the prosecutor charged Movant by information with committing the class A felony of assault in the first degree, in violation of § 565.050. The information alleged that, on or about August 17, 2016, Movant “kno wingly caused serious physical injury to [Victim] by striking him.” Catherine Rice (Rice) was appointed as Movant’s lawyer on June 4, 2017. 2 Rice met with Movant “five or six times” in September and October 2017. She followed her usual practice of copying the State’s discovery information and providing it to Movant. The charged incident involved an in-jail assa ult on another prisoner. Victim’s jaw was broken in the assault. Rice discussed the disc overy with Movant, as well as the pros and cons of taking a plea versus goi ng to trial. She explained in laymen’s terms what “serious physical injury” meant. Movant was not confused about the stat utory meaning of that term. She advised Movant that there were some issues with the first-degree assault charge

2 The facts in this paragraph are drawn from Rice’s deposition, which was introduced at the evidentiary hearing on the amended motion.3 because Victim might not show up, Victim migh t have a record, or the jury might go for second-degree or third-degree assa ult. Rice and Movant also discussed self-defense, which would probably require Movant to take the stand. Rice want ed to take the case to trial because the assault occurred in jail. Movant wanted to plead guilty. On October 25, 2017, Movant appeared to ente r a plea of guilty to the first-degree assault charge. All other pending charges agai nst Movant were dismissed as part of the plea agreement. Movant was sworn and gave the following testimony. Movant was 45 years old and had taken some college courses. He understood that he had been charged with the class A felony of first-degree assault. He had talked about the case with Rice, and she had “gone over w ith [Movant] the meaning of the charge and explained to [Movant] what the minimum and maximum punishments would be as well as defenses to the charge[.]” No one had made him any promises in exchange for a guilty plea, and no one had forced or pressured him to plead guilty. Movant pled guilty to the charged offense in the following exchange: THE COURT: Mr. Prosecutor, woul d you state the facts of the case. [Prosecutor]: On or about August 17, 2016, in Dunklin County, Missouri, the Defendant knowingly caused serious physical injury to [Victim] by striking him. Q. [Movant], is what the Prosecutor just said true? A. Yes, sir. THE COURT: Well, let the record reflect that the Defendant, Mr. Timothy Easley, fully understands his Constituti onal rights, the natu re of the crime charged, the range in punishment a nd that he knowingly, voluntarily and intelligently waives his Constitutional ri ghts and enters plea of guilty. The Court also finds that there is a factua l basis for his plea and, therefore, it’s ordered that his plea be accepted and entered in the records of the court.4 The judge followed the prosecu tor’s recommendation in the plea agreement and imposed the following sentence: (1) Movant receiv ed a ten-year sentence with execution suspended; (2) he was placed on probation for five years; and (3) he was ordered to pay restitution in the amount of $6,000 to Victim. On May 17, 2018, the court conducted a prob ation-revocation hearing to determine whether Movant had violated the terms a nd conditions of probation. After receiving evidence on that issue, the court determined that Movant had done so. The court revoked Movant’s probation and orde red his sentence executed. Movant timely filed a pro se motion for post-conviction relief. Appointed counsel timely filed an amended motion. 3 Only two claims in the amended motion are at issue on appeal. The first relevant claim alleged a due-process violation based on an insufficient factual basis for the guilty plea. According to Movant, he was denied due process of law under the federal and state constitutions because the plea court failed to comply with the requirement in Rule 24.02(e) that there be a su fficient factual basis for his plea of guilty to assault in the first degree. Movant alleged that the lack of a factual basis “rendered [Movant’s] guilty plea involuntary, unknowing, a nd unintelligent.” The second relevant claim alleged that Rice was ineffective for fa iling to advise Movant of the elements of assault in the first degree, including the statut ory definition of “seri ous physical injury.” The motion court held an evidentiary h earing on the amended motion. Rice and Movant each testified via deposition. Ri ce’s testimony has been summarized above. Movant gave the following testimony in his depos ition. He met with Rice only twice before

3 This Court has independently ve rified the timeliness of Movant’s pro se and amended post-conviction motions. See Moore v. State , 458 S.W.3d 822, 825- 26 (Mo. banc 2015).5 pleading guilty. He did not go over the discovery in his case with Rice. She never discussed the charged incident and “never as ked [Movant] one thing” about his case. She recommended that Movant plead guilty. She did not discuss lesser-i ncluded charges or defenses. She did not explain the statut ory definition of serious physical injury. The motion court denied the relief request ed in the amended motion. With respect to the due-process claim, the court decided th at the factual basis was adequate. With respect to the ineffective-as sistance claim, the motion c ourt found that the following testimony from Rice was credible: (1) she expl ained the meaning of the charge to Movant; (2) he was not confused about the meaning of serious physical injury; and (3) she reviewed the discovery with Movant, including the proba ble cause statement specifying that Movant caused serious physical injury to Victim by stri king him multiple times in the face, resulting in numerous facial fractures. The moti on court also found credible Movant’s sworn statement at the plea heari ng that Rice had gone over the m eaning of the charge with Movant. This appeal followed. Standard of Review Appellate review of an order entered pursuant to Rule 24.035 is limited to a determination of whether the motion court’s fi ndings of fact and conclusions of law are clearly erroneous. Rule 24.035(k); Cook v. State , 593 S.W.3d 117, 118 (Mo. App. 2020). A motion court’s findings and c onclusions are clearl y erroneous only if this Court, after reviewing the record, is left w ith a definite and firm impression that a mistake was made.
Ross v. State , 335 S.W.3d 479, 480 (Mo. banc 2011). We presume the motion court’s findings and conclusions are correct, and we defer to the motion court’s superior6 opportunity to judge the cred ibility of w itnesses. Shockley v. State , 579 S.W.3d 881, 892 (Mo. banc 2019).
Point 1 In Point 1, Movant contends the motion c ourt clearly erred in finding a sufficient factual basis for Movant’s guilty plea to the ch arge of first-degree a ssault, as required by Rule 24.02(e). Movant argues that the lack of a sufficient factua l basis means he can withdraw his guilty plea. We disagree because this claim is not cognizable in a Rule 24.035 post-conviction proceeding. See Martin v. State , 568 S.W.3d 78, 81 (Mo. App. 2019). Insofar as relevant here, Rule 24.035(a) permits a person who pleads guilty to a felony to challenge the conviction or sentence because it violates the constitutions of the United States or Missouri. Id . The amended motion alleged that noncompliance with Rule 24.02(e) is a due-process violation. This premise is false beca use a sufficient factual basis for a guilty plea is not constitutionally required. Booker v. State , 552 S.W.3d 522, 528 (Mo. banc 2018). The Rule 24.02(e) procedure merely assists the plea court in deciding whether a guilty plea is voluntarily, intelligently and knowingly made. Id . at 527. “A factual basis exists when the conduct the defendant admits establishes the defendant’s commission of the offense that is the subject of the plea.” Id . The amended motion also alleged that the absence of a sufficient f actual basis “rendered [Movant’s] guilty plea involuntary, unknowing, and unintellige nt.” This premise is fals e because the term “factual basis” is not interchangeable or synonym ous with a “knowing and voluntary plea.” Id . at 527-28. It is a misapplication of the law to improperly conflate those terms. Id . at 528;

see Martin , 568 S.W.3d at 82. “[W]hether a plea is knowing and voluntary is determined from the record as a whole.” Booker , 552 S.W.3d at 528; see also Martin , 568 S.W.3d at7 82 (a reviewing court examines whether the case record, as a whole, supports a finding that the plea was knowingly a nd voluntarily entered). Movant argues in his brief that this Cour t should exercise its discretion to review Point 1 ex gratia because of this change in the law, as we did in Martin . We decline that request for the following reasons.
In Martin , the amended motion was filed on October 4, 2017. Martin , 568 S.W.3d at 80-81. The amended motion was denied on March 28, 2018. Id . at 81. Booker was handed down on June 12, 2018 and became final on August 21, 2018. Booker , 552 S.W.3d at 522. Thus, Martin’s amended motion had been f iled and denied before Booker was decided. We take judicial notic e that the appellant’s brief in Martin was filed on October 2, 2018. 4 Given those circumstances, we opted to analyze Martin’s point on appeal as an assertion that her plea wa s unknowing and involuntary. Martin , 568 S.W.3d at 82. The same circumstances do not exist in the case at bar. Movant’s amended motion was filed on October 1, 2018, which was almost four months after Booker was decided. The appellant’s brief in the case at bar cites both Booker and Martin . The argument presented in Point 1, however, is that: (1) whether a factual basi s exists is determined from the record of the plea; and (2) Movant is en titled to withdraw his plea because it lacked a sufficient factual basis. As we noted in Martin , a claim that the plea court failed to establish a factual basis for th e movant’s guilty plea “is not cognizable in a post-conviction proceeding.” Martin , 568 S.W.3d at 81. Accordi ngly, Point 1 is denied. See Hicks v.

4 “An appellate court takes judicial notice of its own records.” State v. Wynn , 391 S.W.2d 245, 247 (Mo. 1965); Snyder v. State , 288 S.W.3d 301, 302 n.1 (Mo. App. 2009).8 State , 605 S.W.3d 95, 102 (Mo. App. 2020) (denying a point that was not cognizable in a Rule 29.15 proceeding).
Point 2 Point 2 contends Rice was ineffective for failing to advise Movant of the definition of “serious physical injury[,]” which is an element of first-degree assault. See § 565.050. A claim of ineffective assistance of counsel is immaterial exce pt to the extent it impinges the voluntariness and knowledge with which the plea was made. Wray v. State , 474 S.W.3d 230, 237 (Mo. App. 2015). “[T]he e ssential inquiry in a guilty plea proceeding is whether the plea was knowing and voluntary.” Martin , 568 S.W.3d at 81-82. A defendant’s guilty plea is not truly voluntary unl ess the defendant possesses an understanding of the law in relation to the facts. Booker , 552 S.W.3d at 527. To prevail on a claim of ineffective assist ance of counsel, a movant must show that: (1) counsel failed to perform with the leve l of skill and diligence that a reasonably competent attorney would have exercised in a similar situ ation (the performance prong); and (2) he or she was prejudiced by th at failure (the prejudice prong). See id . at 531. A movant must establish both prongs of this test , and the failure to satisfy either prong means we need not consider the other. Butler v. State , 108 S.W.3d 18, 25 (Mo. App. 2003). To establish prejudice in a guilty-plea case, the movant must prove that he would not have pleaded guilty and would have demanded a trial, but for counsel’s errors. Johnson v. State , 580 S.W.3d 895, 900 (Mo. banc 2019). Movant’s argument ignores ou r standard of review, whic h requires us to defer to the motion court’s credibility determinations. Rice testified that she provided the State’s discovery information to Mova nt. During Movant’s in-jail assault on another prisoner,9 Victim’s jaw was broken. Rice discussed those facts with Movant, as well as the pros and cons of taking a plea versus going to trial. Ri ce explained in laymen’s terms what serious physical injury meant. Movant was not confused about the statutory meaning of that term. She discussed weaknesses in the State’s cas e on the first-degree assault charge and reviewed potential lesser-included offenses, as well as the possibility of self-defense. Rice wanted to take the case to trial, but Movant wanted to plead guilty. The motion court found Rice’s testimony to be credible. Further, at the plea hearing, Movant testif ied under oath that he understood he had been charged with the class A felony of first- degree assault. He a ffirmed Rice had “gone over with [him] the meaning of the charge and explained ... what the minimum and maximum punishments would be as well as defe nses to the charge[.]” Movant testified that no one had made him any promises in exchange for his guilty plea and no one had forced or pressured him to plead guilty. The motion court found Movant’s testimony at the plea hearing to be credible. For all these reasons, Movant has faile d to meet his burden of proof on the ineffective-assistance claim unde r the performance prong of the analysis. Point 2 is denied. The motion court’s order denying Mova nt’s amended Rule 24.035 motion is affirmed.

JEFFREY W. BATES, C.J./P.J. – OPINION AUTHOR GARY W. LYNCH, J. – CONCUR MARY W. SHEFFIELD, J. – CONCUR