Isadore Glover v. State of Missouri , 477 S.W.3d 68 ( 2015 )

Zln the jl-Eltsanuri Qtnurt of appeals
QEasstern iBistritt
DIVISION III
{SADORE GLOVER, ) No. ED101719
)
Appellant, ) Appeal from the Circuit Court
) ofthe City of St. Louis
vs. )
) Honorable Michael P. David
STATE OF MISSOURI, )
)
Respondent. ) FILED: June 16, 2015
W
Isadore Glover (“Glover”) appeals from thejudgnlent of the motion court denying his
Rule 24.0351 motion for post-conviction relief without an evidentiary hearing. Glover pleaded
guilty to three counts of burglary in the second degree, one count of attempted burglary in the
second degree, two counts of felony steaiing, and one count of property damage in the first
degree. The trial count suspended imposition of Glover’s sentence and placed him on probation
for three years. After twice violating his probation, the trial court revoked probation and
sentenced Glover to seven years’ imprisonment for each count of burglary and stealing, four
years’ imprisonment for attempted burglary, and four years’ imprisonment for property damage.
The trial court ordered the sentences to run consecutiveiy for a total sentence of forty-three years.
i All rule references are to M0. R. Civ. P. (2014).
Glover subsequently filed a Rule 24.035 motion for post-conviction relief alleging that:
(1) his sentence violates his right to protection from cruel and unusual punishment in that a
sentence of forty-three years is grossly disproportionate to his crimes and shocks the conscience,
and (2) his piea counsel was ineffective in misinforming and misleading him into believing that a
sentence of forty-three years was not a realistic possibility. The motion court denied Glover’s
motion without an evidentiary hearing. Because the files and records of this case conclusively
show that Glover is entitled to no relief, we affirm thejudgment of the motion court.
F actual and Procedural History
On March 25, 2010, the State of Missouri (“State”) charged Glover with three counts of
burglary in the second degree (Counts I, ill, and V), one count of attempted burglary in the
second degree (Count Vll), two counts of felony stealing (Counts II and IV), and one count of
property damage in the first degree (Count Vi). The charges involved burglaries of three
unoccupied houses and one attempted burglary in the City of St. Louis. Glover was eighteen
years old at the time of the crimes.
Glover appeared before the plea court on April 26, 2010, to plead guilty to the charges.
Glover acknowledged that there was no plea agreement with the State and that he wanted the
plea court to determine the appropriate resolution of the case. The prosecutor recited the charges
against Glover and advised the court of the facts he intended to prove had the case proceeded to
trial. Glover admitted to committing burglary, attempted burglary, feiony stealing, and property
damage as described by the prosecutor. The prosecutor then recited the ranges of punishment for
each charge, which was one day to seven years’ imprisonment and/or up to a $5,000 fine for
Counts I through V and one day to four years’ imprisonment and/or up to a $5,000 fine for
Counts VI and Vll. The prosecutor noted that the sentences could run consecutively or
concurrently. The plea court then inquired ofGlover as follows:
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Conclusion
The files and records ofthis case conclusively Show that Glover is entitled to no relief.
Accordingly, the motion court did not clearly err in denying his Rule 24.035 motion for post—
conviclion relief without an evidentiary hearing. The judgment of the motion court is affirmed.
JflW
K rt S. Odenwald, Presiding Judge
Robert G. Dowd, Jr., Concurs
Gary M. Gaertner, Jr., Concurs
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Court: Do you understand those ranges of punishment?
Glover: Yes, sir.
Court: In other words, this case carries with it the potential for up to 83
years — no, 43 years in the Missouri Department of Corrections.
Do you understand that?
Giover: Yes, sir.
The plea court then questioned Glover about the assistance he had received from counsel.
Giover told the court that he had adequate opportunity to speak with counsel, that counsel had
explained his legal rights and the consequences of pleading guilty, and that counsel had
answered his questions and done what he wanted her to do. Glover denied that counsel had
faiied to do anything he wanted done. Glover said he had no criticisms or complaints about
counsel and said that he was satisfied with her services. Glover also confirmed that he
understood his rights attendant to trial and that he was giving> up those rights by pleading guilty.
The plea court accepted Glover’s guilty plea, finding that it was made voluntarily and
intelligently with a full understanding of the charges and of the consequences of the plea. The
plea court then ordered a Sentencing Assessment Report and set a sentencing hearing. Glover
returned to court for sentencing on June 28, 2010. At that time, the plea court suspended
imposition of Glover’s sentence and placed him on probation for three years.
On December 15, 201 1, the plea court entered an order suspending Glover’s probation
based on an alleged violation of the terms of probation.2 An order reinstating probation was
entered on October 5, 2012. A second order for probation suspension was entered on January
i4, 20i3, and on April 26, 2013, Giover appeared at a probation violation hearing. The plea
court advised Glover that it was conducting the hearing because it had reason to believe that
Glover had violated the conditions of his probation by being arrested and charged with two
2 Gtover was arrested for misdemeanor steaiing, Section 570.030, on November 12, 201 l.
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counts of robbery in the second degree for robbing two banks. Glover waived a formal hearing
and confessed to the probation violation. Counsel advised the court that Glover had been
experimenting with drugs when the robbery occurred, that Glover pleaded guilty to the charge as
soon as possible, and that he accepted the sentence handed down in that case?
The plea court concluded that Glover violated his probation conditions and therefore
revoked probation. The pica court then sentenced Glover to seven years’ imprisonment on each
count of Counts I through V and four years’ imprisonment on Counts VI and Vii, to run
consecutively to each other, for a total sentence of forty—three years.“
Glover subsequently filed a pro se motion to vacate, set aside, or correct the judgment
and sentence pursuant to Rule 24.035. Appointed counsel filed an amended motion alleging that:
(l) Glover’s sentence violates his right to protection from cruel and unusual punishment in that a
sentence of forty—three years is grossly disproportionate to his crimes and shocks the conscience,
and (2) Giover’s plea counsel was ineffective in misinforming and misleading him into believing
that a sentence of forty-three years was not a realistic possibility. The motion court denied
Glover’s motion without an evidentiary hearing. This appeal follows.
Points on Appeal
Glover presents two points on appeal, each asserting that the motion court clearly erred in
denying his motion for post-conviction relief without an evidentiary hearing because he pleaded
facts that, if proven, would warrant relief. First, Glover avers that his forty—three year sentence
violates his right to protection from cruel and unusual punishment because the sentence is
grossly disproportionate to his crimes and shocks the conscience. Second, Glover argues that he
was denied effective assistance of plea counsel in that plea counsel misinformed and misled
J Glover pleaded guilty to the two counts of robbery and was sentenced to ten years’ imprisonment on each count, to
run concurrently.
4 The sentences were also ordered to run consecutively to the ten-year sentence previously imposed for the second—
degree robbery conviction.
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Glover into believing that a forty—three year sentence was not a realistic possibility and that no
court wouid ever give an eighteen—year-old, first-time offender accused of class C and D felonies
such a sentence.
Standard of Review
Appeiiate review ofa motion court’s denial of a Rule 24.035 motion is limited to a
determination of whether the findings and conclusions of the motion court were ciearly
erroneous. Rule 24.035; Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989). The motion
court’s findings and conclusions are presumptively correct and wiil be overturned only when this
Court is left with a “definite and firm impression that a mistake has been made” after reviewing
the entire record. Vaca v. State, 314 S.W.3d 331, 334 (Mo. banc 2010).
An evidentiary hearing is required if: (t) movant alleges facts, not conclusions, which, if
true, would entitle movant to relief; (2) the factuai allegations are not refuted by the record; and,
(3) the matters compiained of prejudice the movant. State v. Blankenship, 830 S.W.2d 1, 16
(Mo. banc 1992). An evidentiary hearing is not required where “the motion and the fiies and
records of the case conclusively show that movant is entitled to no relief.” Ruie 29. 15(11);
Morrow v. State, 2l S.W.3d 819, 822 (Mo. banc 2000).
Discussion
1. The consecutive effect of Glover’s sentences does not constitute cruel and unusual
punishment.
Giover’s first point on appeal requires us to determine whether his sentence violates the
constitutional prohibition against cruel and unusuai punishment contained in the Eighth
Amendment. “[T]he Eighth Amendment guarantees individuals the right not to be subjected to
excessive sanctions.” Roper v. Simmons, 543 U.S. 551, 560 (2005). “Embodied in the
Constitution’s ban on cruel and unusual punishments is the precept of justice that punishment for
crime shouid he graduated and proportioned to the offense.” Graham v. Florida, 560 US. 48, 59
(20l 0). Proportionaiity “does not require strict proportionality between crime and sentence but
rather forbids only extreme sentences that are grossly disproportionate to the crime.” 1g, at 60
(internal quotations omitted).
In E983, the US. Supreme Court culminated a series of opinions addressing the issue of
cruel and unusual punishment under the Eighth Amendment with a pronouncement regarding the
constitutionally acceptable proportionality of a sentence in Solem v. Helm. in m, a divided
Court determined that a proportionality analysis under the Eighth Amendment analysis required
(1) an examination of the gravity of the offense and the harshness of the penalty; (2) a
comparison of the sentences imposed on other criminals in the same jurisdiction; and (3) a
comparison of the sentences imposed for commission of the same crime in otherjtn'isdictions.
Soiem v. Helm, 463 U.S. 277, 292 (1983). Eight years later, the Supreme Court departed from
its pronouncement in 5% in Harmelin v. Michigan, stating:
[W]e have addressed anew, and in greater detaii, the question whether the Eighth
Amendment contains a proportionality guarantee—with particular attention to the
background of the Eighth Amendment (which _So_hc~133wdiscussed in only two pages)
and to the understanding of the Eighth Amendment before the end of the 19th
century (which S_ol§m discussed not at all). We conclude from this examination
that m was simply wrong; the Eighth Amendment contains no proportionaiity
guarantee.
Harmeiin v. Michigan, 501 US. 957, 965 (i99i) (internal citations omitted). In its final
anaiysis, the Court in Harmelin substantialiy narrowed its holding in m and focused on the
first m factor, i.e., an examination of the offense and the penalty.
The Missouri Supreme Court has recognized Harmelin as the appropriate anaiysis for
cruel and unusual punishment chalienges to a sentence. Accordingly, we follow the approach
announced in Harmelin, “which ciarified that reviewing courts are to determine, as a threshold
matter, whether a sentence is ‘grossiy disproportionate.”’ State v. Prihble 285 S.W.3d 310,
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3 i4 (Mo. banc 2009). In making this determination, we are to consider the gravity of the offense
and the harshness of the penalty. I_d_. If a sentence is not grossly disproportionate, then
additional comparisons to sentences given to other defendants for the same or similar crimes are
irrelevant. 1d; “Gross disproportionality will be found only in ‘exoeedingly rare’ and ‘extreme’
cases.” State v. Denzmore , 436 S.W.3d 635, 644 (Mo. App. ED. 2014) (citing Burnett v. State,
31! SW. 3d 810, 814 (Mo. App. ED. 2009)). “A sentence within the range prescribed by
statute generally will not be found excessive, or grossly disproportionate, to the crime
committed.” ii. at 8 l 5.
It is well~established that the trial court retains discretion to order consecutive or
concurrent sentences. Section 558.026; State v. Summers, 456 S.W.3d 44l, 445 (Mo. App.
WD. 2014); State v. Mort, 321 SW. 3d 47i, 485 (Mo. App. SD. 2010). Furthermore, Section
557.036.1 directs courts to “decide the extent or duration of sentence or other disposition to be
imposed under all the circumstances, having regard to the nature and circumstances of the
offense and the history and character of the defendant and renderjudgment accordingly.”
Section 557.036.l. Not only do we accord substantial deference to the legislature's
determination of proper punishment, but “[w]lien the sentence imposed is within the range
prescribed by statute, it cannot be judged excessive, and the consecutive effect oft/1e sentences
does not constitute cruel and unusual punishment.” State v. Mubarak 163 S.W.3d 624, 631
(Mo. App. S.D.2005) (emphasis added).
Glover acknowledges that his sentence falls within the statutory range of punishment for
the crimes committed. Nevertheless, Glover maintains that his sentence is excessive because he
was only eighteen years old at the time he committed the crimes, he was a foster child who had
recently “aged out” of the system, all of the offenses occurred at the same time, and his
co-defendant received a sentence of only four years for the same crimes. Glover further argues
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that the plea court did not properly consider his personai characteristics or the facts of the
charged crimes and instead focused solely on the fact that Glover violated probation. Glover
asks this Court to consider factors beyond those enunciated under i-Iarmelin. Glover asks us to
look beyond the gravity of the offense and the harshness of the penalty in deciding whether his
sentence constitutes cruel and unusual punishment under the Eighth Amendment. This we will
not do.
Even if we were to engage in an analysis broader than that required by Harmelin, we note
that the plea court initially deferred sentencing by suspending imposition of Glover’s sentence
and placing Glover on probation. Had Glover successfully compieted that probation, he would
not have had a criminal conviction on his record in connection with this case. Although the
record before us is not conciusive, it appears that Glover’s age and circumstances were a
determining factor in the plea court’s decision to grant probation. After initially vioiating his
probation for stealing, the plea court afforded Glover a second chance to complete probation.
Despite these opportunities, Giover continued to break the law and violate his probation. Instead
of adhering to the requirements of his probation, Glover’s criminai activity while on probation
appears to have escalated in severity as his second probation violation was not a minor offense m
Glover pleaded guiity to robbery in the second degree for robbing two banks.
Trial courts have very broad discretion in their sentencing function. State v. Coilins, 290
S.W.3d 736, 746 (Mo. App. ED. 2009). Among other evidence, in determining a sentence the
trial court may properly consider evidence of a defendant’s conduct that occurred subsequent to
the crime being adjudicated. State v. Bowman, 337 S.W.3d 679, 69E (Mo. banc 20k 1). Here,
the plea court properly considered Glover’s continuing and escaiating course of criminal conduct
in determining that consecutive terms of imprisonment were appropriate. And, as previously
stated, the consecutive effect of the sentences does not constitute cruel and unusual punishment.
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Mubarak, E63 S.W.3d at 63]. Because Glover failed to allege facts that warrant relief, the
motion court did not clearly err in denying an evidentiary hearing on his claim of cruel and
unusual punishment. Point One is denied.
11. Glover failed to ailege the existence of any affirmative misrepresentation or
misinformation by plea counsel that could render his plea involuntary.
Glover’s second point on appeal concerns his claim of ineffective assistance of plea
counsel. Glover contends that plea counsel was ineffective in misinforming and misleading him
into believing that the maximum possible sentence — forty—three years — was not a realistic
possibility and that no court would ever give an eighteen-year-old, first—time offender accused of
class C and D felonies such a sentence. Glover further argues that counsel failed to inform him
that if he violated probation, he might realistically receive a sentence of forty-three years.
When a defendant enters a guilty plea, the effectiveness of counsel becomes irrelevant
except to the extent that it infringes upon the voluntariness and knowledge with which the guiity
plea was made. Muhammad v. State, 367 S.W.3d 659, 661 (Mo. App. ED. 2012). Thus, for
Glover’s ineffective assistance of counsel claim to succeed, he must show his plea of guiity was
rendered involuntary by the inaction of counsel. E ii.
Where plea counsel affirmatively misinforms his client about a consequence of pieading
guilty, and the client relies upon the misrepresentation in deciding to enter his plea, the incorrect
advice may affect the voluntariness ofa plea. Savage v. State, I I4 S.W.3d 455, 458 (Mo. App.
ED. 2003). By contrast, an errant prediction or advice of counsel does not render a pica
involuntary, nor does an expectation of a lighter sentence than that actually received.
Loudermiik v. State, 973 S.W.2d 551, 554 (Mo. App. E.D. I998).
Here, Glover alleges that plea counsel affirmatively misinformed him about the
consequences of pleading guilty when counsel advised Glover that a forty-three year sentence
was not “a realistic possibility” and that no court would ever give a first-time offender accused of
class C and D felonies such a sentence. Despite Glover’s characterization of plea counsel‘s
advice, we find that Glover failed to allege the existence of any affirmative misrepresentation or
misinformation by counsel that could render his plea involuntary. At best, plea counsel’s alleged
statement was a mere prediction of the sentence Glover would receive. Glover does not allege
that plea counsel promised him any particular sentence. A mere prediction about sentencing
cannot render a plea involuntary. E Loudermilk, 973 S.W.2d at 554.
Furthermore, Glover’s claim that his plea was involuntary is absolutely refuted by the
record. Glover was informed at the plea hearing of the minimum and maximum sentences for
each of the charges to which he was pleading guilty. Glover was also specifically informed that
the sentences could be ordered to run concurrently or consecutively and that Glover could be
facing a sentence of forty—three years. At the time he entered his plea, Glover denied that any
premises had been made to him about his sentence. Glover also expressed satisfaction with his
plea counsel, and admitted that his plea was free and voluntary. While Glover may have
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believed that the maximum sentence was not a “realistic possibility, the record of the plea
hearing shows that Glover was informed of all possible consequences before his plea was
accepted. Accordingly, we cannot conclude that Glover’s plea was involuntary. fig Talley v.
gag, I46 S.W.3d 465, 468 (Mo. App. SD. 2004).
Because Glover failed to allege facts, not refuted by the record, establishing that his plea
was involuntary, the motion court did not clearly err in denying Glover’s claim without an
evidentiary hearing. Point Two is denied.
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