Adam D. Bridgewater v. State of Missouri ( 2015 )


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  •                                                      In the
                                   Missouri Court of Appeals
                                               Western District
    ADAM D. BRIDGEWATER,                                       )
                                                               )
                        Appellant,                             )    WD75421
                                                               )
    v.                                                         )    OPINION FILED: January 13, 2015
                                                               )
    STATE OF MISSOURI,                                         )
                                                               )
                       Respondent.                             )
    
                     Appeal from the Circuit Court of Vernon County, Missouri
                               The Honorable Gerald D. McBeth, Judge
    
     Before Division Three: Lisa White Hardwick, Presiding Judge, Mark D. Pfeiffer, Judge
                                 and Cynthia L. Martin, Judge
    
    
             Adam Bridgewater ("Bridgewater") filed a motion to recall mandate on
    
    October 24, 2014 ("Motion"). An exhibit attached to the Motion was missing from trial
    
    counsel's file at the time of Bridgewater's Rule 24.035 hearing and is material to his claim
    
    of ineffective assistance which alleged that trial counsel affirmatively misrepresented that
    
    Bridgewater would receive a single life sentence1 if he pleaded guilty. The motion
    
    court's judgment denying the claim of ineffective assistance of counsel relied exclusively
    
             1
             Bridgewater's use of the phrase "a single life sentence" has plainly been intended to refer to a cumulative
    sentencing structure with concurrent sentences that would result in a single term of life imprisonment.
    on a credibility determination favoring trial counsel's testimony that appears to be
    
    inconsistent with the exhibit attached to the Motion. And Bridgewater's guilty plea
    
    hearing does not plainly refute his claim of prejudicial reliance on trial counsel's
    
    affirmative representation. We therefore recall our mandate issued November 20, 2013;
    
    withdraw our order/memorandum dated September 10, 2013; vacate the motion court's
    
    judgment in the Rule 24.035 proceeding; and remand this matter to the motion court for
    
    further proceedings consistent with this Opinion.
    
                                       Factual and Procedural Summary
    
           Bridgewater was charged as a prior offender with four counts of the class A felony
    
    of assault of a law enforcement officer in the first degree in violation of section 565.081 2
    
    and four associated counts of armed criminal action in violation of section 571.015. The
    
    information alleged that, on or about March 16, 2007, Bridgewater knowingly fired a gun
    
    at Officer Dan Cook, a Neosho police car driven by Officer Mike Sharp, and a Highway
    
    Patrol car driven by Trooper Grant Hendrix. Bridgewater was twenty years old at the
    
    time of the offense.
    
           On September 24, 2008, Bridgewater pleaded guilty to three counts of assault of a
    
    law enforcement officer and the three associated counts of armed criminal action. The
    
    written plea petition reflected Bridgewater's agreement that:
    
           3. I received a copy of the information (charge against me). I read the
           information and have discussed it with my attorney. My attorney explained
           every charge to me and I understand that I am charged with 4 counts of 1st
           degree assault on law enforcement officer & 4 counts armed criminal
           action. I understand the nature of the charge against me and my lawyer
    
           2
               All statutory references are to RSMo 2000 as supplemented unless otherwise indicated.
    
                                                             2
             informed me that the range of punishment which the law provides is 10 to
             30 or life on the assaults and minimum 3, no maximum on armed
             criminal action.
    
    (Emphasized material is handwritten on document). The written plea agreement reflected
    
    Bridgewater's understanding that the State would, in exchange for his plea, dismiss
    
    "Counts VII & VIII," (the fourth charge of assault of a law enforcement officer and its
    
    associated armed criminal action charge), and other pending but unrelated traffic and
    
    criminal charges except an arson charge.                        The written plea agreement expressed
    
    Bridgewater's understanding that "[a]ny sentence received on the arson charge would be
    
    designated to run concurrent."
    
             A guilty plea hearing for the assault and armed criminal action charges was
    
    conducted on September 24, 2008. During this hearing, Bridgewater testified that he had
    
    seen a copy of the amended information and that he understood the charges against him.
    
    Bridgewater testified that he understood that as to "each count of first degree assault on a
    
    law enforcement officer, the range of punishment is minimum of 10, maximum of 30, or
    
    life." Bridgewater also testified that he understood that as to "each count of armed
    
    criminal action, the minimum sentence is three years and the maximum sentence is not
    
    set forth in the statute, and therefore there is no maximum." Bridgewater was not asked
    
    by trial counsel or the plea court whether he understood that the sentences on each of
    
    these six counts could be made to run consecutively.3
    
    
             3
               Rule 24.02(b)(1) requires that before accepting a plea of guilty, a trial court must determine that a
    defendant understands "[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." Where a defendant is pleading guilty
    to more than one charge, our Supreme Court has construed Rule 25.04, the precursor to Rule 24.02, to require the
    trial court to determine that the defendant "is fully informed and correctly understands . . . that he may and will be
    
                                                              3
             The trial court found that Bridgewater's pleas were voluntarily and intelligently
    
    given with a full understanding of his rights and the effect of his guilty pleas on those
    
    rights. After finding that there was a factual basis for the guilty pleas, the trial court
    
    accepted Bridgewater's guilty pleas and ordered a Sentencing Assessment Report.
    
             The trial court held a sentencing hearing on January 2, 2009.4                              The officers
    
    assaulted by Bridgewater and other witnesses testified. Following the evidence, the State
    
    argued that the sentencing court should give Bridgewater "whatever number [of life
    
    sentences] the court thinks is justified . . . [and] run everything consecutive."
    
    Bridgewater's trial counsel asked the court to follow the Sentencing Assessment Report
    
    which recommended either ten years or fourteen years in prison.
    
             At the conclusion of the sentencing hearing, the trial court imposed six life
    
    sentences on Bridgewater. The trial court ordered that each life sentence for armed
    
    criminal action would run concurrently with the related life sentence for assault of a law
    
    enforcement office, and that the three life sentences for assault of a law enforcement
    
    
    
    sentenced on each and all [of the charges] and the minimum and maximum punishment for each, and that the
    sentences may run concurrently or consecutively," before accepting a guilty plea. State v. Bursby, 
    395 S.W.2d 155
    , 159 (Mo. 1965) (emphasis added). See Holland v. State, 
    954 S.W.2d 660
    , 662 (Mo. App. E.D. 1997) (holding
    that "where a defendant is pleading guilty to multiple counts, Rule 25.04 (the predecessor of Rule 24.02) requires the
    court to inform the defendant that the sentences may be made to run consecutively or concurrently") (citing Bursby,
    395 S.W.2d at 159; Wiley v. State, 
    522 S.W.2d 41
    , 43 (Mo. App. 1975) (emphasis in original)).
              Bridgewater never asserted in his Rule 24.035 motion, and has thus waived, a claim that his guilty plea was
    not knowing and voluntary because the plea court failed to comply with Rule 24.02(b)(1). See Coates v. State, 
    939 S.W.2d 912
    , 915 (Mo. banc 1997) (distinguishing a claim that a trial court failed to comply with Rule 24.02(b)(1)
    from a claim of ineffective assistance of counsel); Holland, 954 S.W.2d at 662, n.2. However, as we explain, infra,
    the lack of any inquiry during the guilty plea hearing verifying that Bridgewater understood that the multiple life
    sentences he might receive could be made to run consecutively is nonetheless relevant. In the absence of this
    inquiry, we cannot conclude that the guilty plea record plainly refutes Bridgewater's claim that he reasonably relied
    on trial counsel's affirmative representation that by pleading guilty he would receive a single life sentence.
              4
                On the same date, the trial court first conducted a combined guilty plea/sentencing hearing on the
    unrelated arson charge and imposed a sentence of seven years to run concurrent with the sentence yet to be imposed
    on the three assault and armed criminal action counts.
    
                                                              4
    officer would run consecutively. As a result, Bridgewater is serving three consecutive
    
    life sentences.
    
           Immediately after announcing sentence, Bridgewater was asked by the trial court:
    
           Q:     Other than discussing this--the plea of guilty with you, did your
           attorney communicate any threats or promises to you to induce you to enter
           your plea of guilty?
    
           A:     No, sir.
    
           Q:     Are you satisfied with the services rendered to you by [trial counsel]
           and --and the public defender's office?
    
           A:     Yes, sir.
    
           Q:     Is there anything you wish to add concerning the--the assistance
           received from the--your--from your attorney?
    
           A:     No, sir.
    
           Q:     Is there anything you wish me to consider concerning your
           representation by your attorney before I determine whether or not probable
           cause exists to believe that you have received ineffective assistance of
           counsel?
    
           A:     No, sir.
    
    (Emphasis added.)
    
           After he was committed to the Department of Corrections, Bridgewater filed a
    
    timely pro se Rule 24.035 motion. The trial court appointed counsel, who filed an
    
    amended Rule 24.035 motion. The amended motion alleged that Bridgewater's trial
    
    counsel was ineffective in that she "misinformed [Bridgewater] that if he pled guilty he
    
    
    
    
                                                5
    would receive a cumulative sentence structure of life imprisonment."5                                  (Emphasis
    
    added.)       The amended motion asserted that but for trial counsel's affirmative
    
    misrepresentation, Bridgewater would not have pleaded guilty and would have insisted
    
    on proceeding to trial.
    
             The trial court held an evidentiary hearing during which Bridgewater and others
    
    testified. Bridgewater testified that he knew he was entering an open plea on the three
    
    assault and related armed criminal action charges, and that he knew a life sentence was
    
    possible on each charge, but that his trial counsel assured him that the trial court would
    
    impose sentence in a manner that would result in a single life sentence. Bridgewater
    
    testified that he relied on this assurance. Although Bridgewater knew he would likely
    
    serve life in prison by pleading guilty he was willing to plead because by receiving a
    
    single life sentence, he would at least have a chance to be released from prison during his
    
    lifetime.6 Bridgewater testified that he would not have pleaded guilty and would have
    
    insisted on going to trial if he had known that he might receive consecutive life
    
    sentences--an outcome that ensures he will die in prison, and that is no better than the
    
    outcome he could have received had he insisted on going to trial.
    
    
    
    
             5
               The amended motion also asserted that Bridgewater's trial counsel was ineffective for refusing to subpoena
    a witness for the scheduled trial. Bridgewater abandoned that argument on appeal from the denial of his Rule
    24.035 motion. Our recall of the mandate does not alter this fact. Thus, the only claim asserted in Bridgewater's
    Rule 24.035 motion that is affected by our Opinion is the claim of ineffective assistance of counsel based on an
    affirmative misrepresentation that Bridgewater would receive a cumulative sentencing structure of life
    imprisonment.
             6
               Pursuant to section 558.019.4(1) RSMo 2000, a life sentence is calculated as thirty years for purposes of
    parole eligibility.
    
                                                             6
           Bridgewater's trial counsel testified at the Rule 24.035 motion hearing, in pertinent
    
    part, as follows:
    
           Q:     All right. What discussions did you have with [Bridgewater] prior to
           his plea, as far as what possible sentence he would get?
    
           A:      I don't have a specific recall of the details. And looking through
           the files that you have shown me, it appears that the notes of discussions
           are missing from those files. I've--And without those I couldn't give you
           specific details.
    
           Q:     Okay. Do you have a recollection of telling him that he would
           receive one life sentence with everything made concurrent?
    
           A:     I don't specifically recall making that representation.
    
           Q:     Okay. What did you tell him?
    
           A:     Again, I couldn't give you specific recall. I could only tell you
           what it would be my practice to tell a client.
    
           Q:     What would be your practice?
    
           A:     My practice would be to tell a client the worst case scenario, which
           would be-in this case multiple consecutive life sentences. And to tell what
           our goal was, what we hoped for, which would be to mitigate through a
           sentencing hearing, and to ask the judge for leniency.
    
    On cross-examination, trial counsel testified that Bridgewater's "initial intent" was to
    
    proceed to jury trial, and that she had "tried to get a plea bargain from the State . . .
    
    several times," though nothing was forthcoming. Trial counsel indicated that "[a]t some
    
    point a few small scraps were offered, in terms of some dismissed charges . . . but
    
    nothing that compared to the charges that the State was proceeding on. The State
    
    expressly asked trial counsel:
    
    
    
    
                                                 7
             Q:     Would it ever be your practice to predict or guarantee somebody that
             you're representing what they could expect with an open plea?
    
             A:       No.
    
             The motion court denied Bridgewater's Rule 24.035 claim of ineffective assistance
    
    of counsel. The motion court found:
    
             Trial counsel testified at the hearing on this motion that she informed
             [Bridgewater] that consecutive life sentences were within the range of
             punishment available to this court at sentencing. Trial counsel further
             testified that she never indicated to [Bridgewater] that if he were to plead
             guilty that he would face less than the full range of punishment. This court
             knows trial counsel to be a thorough and conscientious advocate and finds
             her testimony to be credible on this point.
    
    The motion court thus found that the affirmative representation claimed by Bridgewater
    
    was not made based on a finding that trial counsel's testimony that she followed her
    
    customary practice in advising Bridgewater was credible. The motion court's judgment
    
    included no other findings related to this claim of ineffective assistance of counsel.
    
             Bridgewater appealed the motion court's judgment and we affirmed in an
    
    unpublished memorandum. Bridgewater v. State, 
    412 S.W.3d 400
     (Mo. App. W.D.
    
    2013). Our mandate issued on November 20, 2013.
    
             On October 24, 2014, Bridgewater filed this Motion.7                              It sets forth three
    
    arguments, each of which relates to Bridgewater's claim of ineffective assistance of
    
    counsel arising out of trial counsel's assurance that he would receive a single life sentence
    
    if he pleaded guilty. The Motion reflects an attempt to revisit matters litigated and finally
    
             7
              We sought and received suggestions from the State in response to Bridgewater's Motion. Unfortunately,
    the photocopy of the exhibit attached to the State's service copy of Bridgewater's Motion is apparently of poor
    quality, causing highlighted text to appear to be "blacked out" or redacted. The copy of the exhibit attached to the
    original of the Motion is highlighted, and does not appear to be redacted. The State was nonetheless able to address
    the content of the exhibit central to our discussion, as that content was quoted by Bridgewater in the Motion.
    
                                                             8
    disposed in connection with Bridgewater's Rule 24.035 proceeding, and would have been
    
    overruled but for an exhibit attached to the Motion.
    
             Attached to the Motion is a "File Memo" form used by the Missouri Office of
    
    State Public Defender.8             The Form has several boxes at the top with pre-printed
    
    designations, and a large area beneath these boxes for notes.                             "A. Bridgewater" is
    
    handwritten in the box designated "Case Name," and "9/24/08" is handwritten in the box
    
    designated "Date." Beneath these handwritten designations are a series of handwritten
    
    notes. Pertinent to this Opinion is the following handwritten entry, which Bridgewater
    
    has highlighted:
    
             Went over plea form again w/client. Am confident in one life CC for client
             with guilty plea.
    
             The date on the form, September 24, 2008, was the date of Bridgewater's guilty
    
    plea hearing on the assault and related armed criminal action charges. The form is not
    
    signed. Bridgewater claims in his Motion that the File Memo was prepared by his trial
    
    counsel. The form itself, and the topics addressed by the handwritten notes on the form,
    
    strongly suggest that Bridgewater is correct, and that the form was prepared by
    
    Bridgewater's trial counsel contemporaneously with the guilty plea hearing.
    
             The File Memo thus appears to be "the notes of discussions" that trial counsel
    
    testified were "missing from [Bridgewater's] files," without which "[trial counsel]
    
             8
               The Motion does not explain how Bridgewater came to possess the File Memo, other than to note that
    sometime after he was incarcerated, he "requested and received [his] entire legal file." On remand, the motion court
    is free to consider evidence regarding the circumstances giving rise to Bridgewater gaining possession of notes that
    were missing at the time of Bridgewater's Rule 24.035 hearing. We have accepted trial counsel's testimony at face
    value, and thus assume the notes were missing at the time of the hearing through no fault attributable to Bridgewater
    or his post-conviction counsel. If that assumption is not borne out by the evidence on remand, the motion court is
    free to so find.
    
                                                              9
    couldn't give . . . specific details" about her discussions with Bridgewater. Because the
    
    notes were missing, when trial counsel was asked if she had "a recollection of telling
    
    [Bridgewater] that he would receive one life sentence with everything made concurrent,"
    
    she testified "Again, I couldn't give you specific recall. I could only tell you what it
    
    would be my practice to tell a client."
    
                                                Analysis
    
             "[A]n appellate court divests itself of jurisdiction of a cause when the court
    
    transmits its mandate." State v. Whitfield, 
    107 S.W.3d 253
    , 265 (Mo. banc 2003); see
    
    also Gray Realty Co. v. Swinney, 
    297 S.W. 43
    , 45 (Mo. banc 1927).                    However,
    
    "jurisdiction may be reacquired by means of the 'judicial power to recall a mandate for
    
    certain purposes.'" Id. (quoting State v. Thompson, 
    659 S.W.2d 766
    , 768 (Mo. banc
    
    1983)); see also Reimers v. Frank B. Connet Lumber Co., 
    273 S.W.2d 348
    , 349 (Mo.
    
    1954).     Our Supreme Court "has never fully delineated the scope of that power."
    
    Thompson, 659 S.W.2d at 768. Thompson did, however, undertake a general discussion
    
    of the subject:
    
             Other courts have held that a mandate once issued may not be recalled
             absent one of a few specific exceptions, such as when the judgment is the
             result of prejudicial mistake of fact or of fraud, when there is irregularity or
             error in the issuance of the mandate, or when the mandate does not
             correctly reflect the judgment rendered by the court. In the criminal
             context, a motion for recall of the remittitur is not the proper remedy to
             correct a mere mistake of law, even though one exists. . . .
    
    Id. (internal citations and quotation omitted). Our Supreme Court went on to note that:
    
             Whenever the judgment of an appellate court impinges upon the federal
             constitutional rights of the accused, however, the mistake cannot be said to
             be a mere [error] of law or procedure.
    
                                                   10
    Id. at 769 (quotation omitted). "Consequently, our courts have properly recognized that a
    
    mandate may be recalled in order to remedy a deprivation of the federal constitutional
    
    rights of a criminal defendant." Id.; see also Whitfield, 107 S.W.3d at 265 (holding
    
    motion to recall mandate is appropriate to remediate the deprivation of a criminal
    
    defendant's constitutional rights). The Court in Thompson provided examples:
    
             For example, a motion to recall the mandate may be employed to seek
             reconsideration of an appellate court's affirmance of a conviction when a
             criminal defendant alleges ineffective assistance of counsel on appeal, or
             when a defendant has been deprived of appellate counsel altogether. Such a
             motion may also be employed when the decision of a lower court directly
             conflicts with a decision of the United States Supreme Court upholding the
             rights of the accused.
    
    659 S.W.2d at 769 (internal citations omitted).
    
             The examples mentioned in Thompson do not apply here. Ineffective assistance of
    
    appellate counsel is now subject to remediation by a timely filed Rule 29.15 motion,
    
    rendering reliance on motions to recall the mandate to secure such relief no longer
    
    necessary.9 More to the point, because Bridgewater pleaded guilty and did not insist on
    
    going to trial, he never had appellate counsel. And, this is not a case where we are being
    
    asked to address the retroactive application of a United States Supreme Court decision.
    
    See, e.g., Whitfield, 
    107 S.W.3d 253
     (where mandate was recalled to permit retroactive
    
    application of holding in Ring v. Arizona, 
    536 U.S. 584
     (2002)).
    
    
    
             9
              Prior to the amendment of Rule 29.15 effective January 1, 1996, ineffective assistance of counsel claims
    were to be asserted and considered in connection with a criminal defendant's direct appeal following conviction,
    rendering it a physical impossibility to entertain claims of ineffective assistance of appellate counsel at the same
    time, requiring such claims to be asserted in a motion to recall mandate. See Reuscher v. State, 
    887 S.W.2d 588
    ,
    591 (Mo. banc 1994); State v. Turner, 
    972 S.W.2d 438
    , 439, n.4 (Mo. App. E.D. 1998).
    
                                                             11
           This is, however, a scenario where "the judgment of an appellate court impinges
    
    upon the federal constitutional rights of the accused." Thompson, 659 S.W.2d at 769.
    
    Bridgewater's claim of ineffective assistance of counsel in connection with his guilty plea
    
    has its origin in Bridgewater's constitutional right to the effective assistance of counsel.
    
    State v. Harvey, 
    692 S.W.2d 290
    , 291 (Mo. banc 1985) ("An essential element of a fair
    
    trial is the assistance of counsel, elevated to constitutional dimension by the sixth
    
    amendment.") (citing Strickland v. Washington, 
    466 U.S. 668
     (1984)). The right to
    
    effective assistance of counsel "applies to all critical stages in the proceedings against
    
    [an] accused," including guilty plea proceedings. Walker v. State, 
    511 S.W.2d 859
    , 866
    
    (Mo. 1974). "Rule 24.035 provides the exclusive procedure by which [Bridgewater] may
    
    seek relief" for a claim of ineffective assistance of counsel. Rule 24.035; Brown v. State,
    
    
    66 S.W.3d 721
    , 727 (Mo. banc 2002) (overruled on unrelated grounds by State ex rel.
    
    Zinna v. Steele, 
    301 S.W.3d 510
    , 517 (Mo. banc 2010)).
    
           We affirmed the motion court's judgment denying Bridgewater's Rule 24.035
    
    claim because its sole and only finding--that trial counsel credibly testified that she
    
    followed her standard practice and thus did not make an affirmative representation to
    
    Bridgewater assuring that he would receive a single life sentence--was not "clearly
    
    erroneous." See Rule 24.035(k) ("Appellate review of the trial court's action on the
    
    motion filed under this Rule 24.035 shall be limited to determination of whether the
    
    findings and conclusions of the trial court are clearly erroneous.").   It now appears that
    
    the subsequent issuance of our mandate will impinge, unless withdrawn, on Bridgewater's
    
    effective ability to challenge whether he received effective assistance of trial counsel in
    
                                                 12
    connection with his guilty plea proceeding. The transcript from the Rule 24.035 hearing
    
    transcript establishes that the File Memo should have been in trial counsel's file, but was
    
    missing, and was thus unavailable to Bridgewater at the time of the Rule 24.035 hearing,
    
    through no apparent fault or lack of diligence on his part. The File Memo is plainly
    
    corroborative of Bridgewater's claim that trial counsel affirmatively misrepresented that
    
    he would receive a single life sentence by pleading guilty. The Rule 25.035 hearing
    
    transcript plainly establishes that without the File Memo, trial counsel had no
    
    independent recollection about her discussions with Bridgewater, requiring her to
    
    speculate about how she advised Bridgewater based on her standard practice. The File
    
    Memo's handwritten notation appears to be plainly inconsistent with trial counsel's Rule
    
    24.035 hearing testimony, and with the motion court's finding that trial counsel did not
    
    make the affirmative representation attributed to her by Bridgewater based on an
    
    assessment of trial counsel's credibility.
    
           To prevail on his claim of ineffective assistance of counsel, Bridgewater was
    
    required to show that (1) counsel failed to exercise the customary skill and diligence that
    
    a reasonably competent attorney would exercise under similar circumstances and (2) he
    
    was prejudiced thereby. Strickland, 466 U.S. at 687; see also Taylor v. State, 
    403 S.W.3d 683
    , 686 (Mo. App. W.D. 2013). Where a conviction is based on a guilty plea, any claim
    
    of ineffective assistance of counsel is immaterial except to the extent it impinges on the
    
    voluntariness and knowledge with which the plea was made.           Stanley v. State, 
    420 S.W.3d 539
    , 548 (Mo. banc 2014).             "Mistaken beliefs about sentencing affect a
    
    defendant's ability to knowingly enter a guilty plea if the mistake is reasonable and the
    
                                                  13
    mistake is based on a positive representation upon which [he] is entitled to rely."
    
    Dobbins v. State, 
    187 S.W.3d 865
    , 866 (Mo. banc 2006). "When a defendant claims to
    
    have pleaded guilty based on a mistaken belief about his sentence, the test is whether a
    
    reasonable basis exists in the record for such belief." Jackson v. State, 
    421 S.W.3d 571
    ,
    
    575 (Mo. App. E.D. 2014).
    
           Here, Bridgewater's ability to sustain his burden as to the first Strickland prong--
    
    the performance prong--could have been materially influenced by the File Memo. Trial
    
    counsel's written notation that she advised Bridgewater she was "confident" he would
    
    receive a single concurrent life sentence in exchange for his guilty plea appears plainly
    
    corroborative of Bridgewater's claim of ineffective assistance, and unless credibly
    
    explained away, could demonstrate that a "reasonable basis exists in the record for
    
    [Bridgewater's] belief" that he would only receive a single life sentence if he pleaded
    
    guilty. Jackson, 421 S.W.3d at 575.
    
           Of course, even assuming the File Memo would have persuaded the motion court
    
    that plea counsel was deficient in affirmatively misadvising Bridgewater, Bridgewater
    
    would still have been required to establish the prejudice prong. He would have been
    
    required to establish that he reasonably relied on trial counsel's affirmative misadvice to
    
    his detriment, and that, but for the affirmative misadvice, he would not have pleaded
    
    guilty and would have insisted on going to trial. Stanley, 420 S.W.3d at 548.
    
           Because the motion court found that Bridgewater did not establish the
    
    performance prong, its judgment made no findings or conclusions involving the prejudice
    
    
    
                                                14
    prong.10 Our Supreme Court recently held in Stanley that a court on appeals should
    
    nonetheless affirm the denial of post-conviction relief under Rule 24.035 if the guilty plea
    
    record plainly refutes a movant's claim of prejudice. Stanley, 420 S.W.3d at 549. In
    
    Stanley, the Court detailed a plea court's thorough and deliberate efforts to determine on
    
    the record during the guilty plea hearing that the defendant knew and understood that the
    
    court would determine sentencing. Id. at 549-50. Specifically, the Court found that:
    
             The [plea] court's admonishments refute Mr. Stanley's claim that he did not
             sufficiently understand the nonbinding nature of his plea agreement. The
             plea colloquy tracked the requirements of Rule 24.02(b) and (c), and the
             court adequately ensured that Mr. Stanley's pleas were knowing, voluntary,
             and intelligent. Accordingly, his claim that plea counsel was ineffective for
             failing to explain adequately the concept of a nonbinding plea agreement is
             also refuted by the record.
    
    Id. at 550.11
    
             This case is distinguishable from Stanley. The record does not plainly refute
    
    Bridgewater's claim of prejudice. First, Bridgewater claimed he would not have pleaded
    
    guilty had he understood the multiple life sentences he faced could be made to be served
    
    consecutively, as that outcome ensured he would die in prison, and was no better an
    
    outcome than the alternative of going to trial. This assertion is facially plausible on this
    
    
    
             10
                 The failure to establish either of the Strickland prongs warrants denial of a post-conviction claim of
    ineffective assistance of counsel. Taylor v. State, 
    403 S.W.3d 683
    , 686 (Mo. App. W.D. 2013). Rule 24.035(j)
    directs that the motion court "shall issue findings of fact and conclusions of law on all issues presented." An
    ineffective assistance of counsel claim will always present both the issue of whether the performance and the
    prejudice prong were established. Best practice, if not the literal requirement of Rule 24.035(j), thus suggests that a
    motion court should make findings and conclusions on both the performance and the prejudice prongs of any post-
    conviction claim of ineffective assistance of counsel, even if the findings as to either prong would support the
    judgment.
              11
                 Though Stanley involved an allegation that counsel failed to adequately explain sentencing, we recently
    held that the rationale set forth in Stanley is equally applicable in cases involving an allegation that counsel
    affirmative misadvised a defendant about sentencing. Thornton v. State, 
    2014 WL 6781171
     *4, WD 76734 (Mo.
    App. W.D. December 2, 2014).
    
                                                              15
    record, and could be deemed credible by the motion court.12 Similarly, Bridgewater
    
    claimed that he only pleaded guilty because a single life sentence would afford
    
    Bridgewater an outcome he would not likely get at trial--a modicum of hope that he could
    
    be eligible for parole during his lifetime. This assertion is also facially plausible on this
    
    record, and could be deemed credible by the motion court.
    
             Second, unlike the guilty plea record in Stanley, Bridgewater's plea colloquy did
    
    not track the requirements of Rule 24.02 in an important respect that is material to this
    
    case. There was no discussion during Bridgewater's guilty plea hearing about the fact
    
    that the multiple life sentences Bridgewater understood he might receive could be made
    
    to run consecutively, a requirement of Rule 24.02(b)(1).13 Thus, Bridgewater's claim that
    
    he relied to his prejudice on trial counsel's affirmative representation that he would
    
    receive a single life sentence (and thus concurrent sentences) is not plainly refuted by the
    
    record of the guilty plea hearing. Though Bridgewater was briefly asked after sentence
    
    was imposed whether he was satisfied with his trial counsel, the plea court qualified some
    
    of this limited inquiry by asking whether "[o]ther than discussing this--the plea of guilty
    
    with you, did your attorney communicate any threats or promises to you to induce you to
    
    enter your plea of guilty?" We simply do not believe that the guilty plea or sentencing
    
    records permit this court, without the benefit of testimony and an opportunity to assess
    
    the credibility of witnesses, to conclude as a matter of law that Bridgewater's claim of
    
    prejudicial reliance is refuted by the record. Whether Bridgewater has established the
    
             12
                We are not predisposing the motion court's credibility findings on remand with respect to Bridgewater's
    claimed reliance, but note only that the claims are at least plausible, and are not plainly refuted by the record.
             13
                See footnote number 2.
    
                                                             16
    Strickland prejudice prong remains, therefore, a matter to be determined by the motion
    
    court on remand.
    
             In short, this case presents a rare and unusual combination of facts that we have
    
    never seen in any reported decision in this State and that are highly unlikely to reoccur.
    
    Yet, the rare combination of facts presents an exceptional situation wherein we are
    
    empowered to reacquire jurisdiction by recalling our mandate to afford Bridgewater the
    
    opportunity to meet his burden to establish that he was deprived of the constitutional right
    
    to effective assistance of counsel.                  See Whitfield, 107 S.W.3d at 265.                      In fact,
    
    Bridgewater's only ability to redress the exceptional situation presented by this case is
    
    through the recall of our mandate.14 To be clear, the rare and unique combination of
    
    
             14
                We are confident that Bridgewater has no other meaningful remedy. Rule 29.07(d), which addresses the
    ability to withdraw a guilty plea, cannot be employed as a substitute for the timely assertion of a claim within the
    ambit of Rule 24.035. Brown, 66 S.W.3d at 727-31. Plainly, Bridgewater's ineffective assistance of counsel claim
    was within the ambit of Rule 24.035. Our conclusion that Bridgewater was deprived of a meaningfully ability to
    pursue his Rule 24.035 remedy is best remediated by reopening the Rule 24.035 hearing, and not by attempting to
    engraft a heretofore unrecognized exception to the legal principles differentiating between Rule 29.07(d) and Rule
    24.035 so carefully explained in Brown.
              Moreover, habeas corpus does not appear to afford Bridgewater a meaningful alternative. Habeas relief is
    available in limited circumstances to permit consideration of a procedurally defaulted claim that was not timely
    raised under Rule 24.035 or Rule 29.15. See State ex rel. Zinna, 301 S.W.3d at 517. Bridgewater timely raised his
    claim under Rule 24.035. Though the discovery of evidence after the conclusion of a Rule 24.035 or Rule 29.15
    might, in rare circumstances, permit the reopening of a post-conviction proceeding under the "cause and prejudice"
    prong of habeas corpus relief, the "cause and prejudice" prong cannot generally be employed to redress defense
    counsel's failings, as cause and prejudice refers to a "procedural defect . . . caused by something external to the
    defense--that is, a cause for which the defense is not responsible." Id. at 516-17 (quoting Brown, 66 S.W.3d at 731),
    but see Ewing v. Denney, 
    360 S.W.3d 325
     (Mo. App. W.D. 2012) (affording habeas relief to redress trial/appellate
    counsel's failure to perfect a direct appeal where defendant was mislead and thus failed to timely file a Rule 29.15
    claim of ineffective assistance of counsel). In any event, habeas relief is traditionally associated with claims of
    manifest injustice arising out of assertions of actual innocence, or claims of cause and prejudice, both of which serve
    as a gateway to permit review of procedurally defaulted claims of constitutional proportion impacting the fairness of
    a defendant's trial. See Amrine v. Roper, 
    102 S.W.3d 541
    , 545-47 (Mo. banc 2003). The case before us does not
    involve a claim of actual innocence, or a procedurally defaulted claim that Bridgewater was deprived of a fair trial.
    Rather, the sole and only issue is whether but for trial counsel's affirmative representation about the sentencing
    structure Bridgewater would receive if he pleaded guilty, Bridgewater would have refused to plead guilty and would
    have insisted on going to trial. We are unaware of any case in the Missouri that has entertained a habeas claim
    under these circumstances. Even if a habeas petition could afford Bridgewater an alternative means to seek relief,
    our Supreme Court has recognized that habeas and the recall of a mandate are functionally equivalent in certain
    circumstances. See Whitfield, 107 S.W.3d at 269, n.19.
    
                                                             17
    circumstances warranting this relief are Bridgewater's discovery of evidence after his
    
    Rule 24.035 hearing: (i) that the post-conviction record plainly establishes should have
    
    been in trial counsel's possession but was inexplicably missing; (ii) that was thus
    
    unavailable at the post-conviction hearing through no apparent fault of Bridgewater; (iii)
    
    that is established by the post-conviction record to be material as in its absence, trial
    
    counsel had no independent recollection of its content; (iv) that plainly supports the
    
    specific assertion of ineffective assistance of counsel set forth in the Bridgewater's Rule
    
    24.035 motion; (v) that is plainly contradictory of a factual finding in the judgment
    
    explaining the motion court's denial of the Rule 24.035 claim; (vi) where the judgment
    
    denying the claim made no other findings that would alternatively support the judgment;
    
    and (vii) where the record does not plainly refute Bridgewater's claim of prejudice.
    
                                           Conclusion
    
           Our mandate dated November 20, 2013 is recalled. Our order/memorandum dated
    
    September 20, 2013 is withdrawn. The motion court's judgment denying Bridgewater's
    
    Rule 24.035 motion is vacated.      This matter is remanded to the motion court with
    
    instructions to reopen the evidentiary hearing on Bridgewater's Rule 24.035 claim of
    
    ineffective assistance of counsel asserting an affirmative misrepresentation by trial
    
    counsel that Bridgewater would receive a cumulative sentence structure of life
    
    imprisonment by pleading guilty. On remand, the motion court shall appoint Bridgewater
    
    counsel to represent his interests in the reopened Rule 24.035 proceeding. During the
    
    reopened hearing, the trial court shall permit the introduction of evidence it deems
    
    relevant to the File Memo, and may permit the introduction of such other evidence as it
    
                                                18
    deems relevant under the circumstances. The motion court shall thereafter issue its
    
    judgment addressing Bridgewater's Rule 24.035 claim in the manner required by Rule
    
    24.035(j).
    
    
                                          __________________________________
                                          Cynthia L. Martin, Judge
    
    
    
    All concur
    
    
    
    
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