In the Missouri Court ot` Appeals Eastern District DIVISION FOUR TERRY 'l`. WATSON, ) ED103245 ) Appellant, ) Appeal from the Circuit Court ) ofthe City of St. Louis v_ ) 1322-CC00457 ) STATE OF MISSOURI, ) Honorable Bryan L. Hettenbaeh ) Respondent. ) Fiied: September 13, 2016 Introduction Terry Watson (Movant) appeals the judgment of the motion court denying his motion for post-conviction relief under Rule 29.15l Without an evidentiary hearing, as Well as the motion court’s denial of his motion to amend the judgment We reverse and remand for an evidentiary hearing on the claims in Movant’s Rule 29.15 motion.

Background The State charged l\/lovant with robbery in the first degree, armed criminal action, resisting arrest, and trafficking in the Second degree. A jury convicted Movant of all charges except armed criminal aetion, and the trial court sentenced Movant to a total of 18

years’ imprisonment This Court affirmed Movant’s convictions and sentence on appeal.

State v. Watson, 386 S.W.3d 907 (Mo. App. E.D. 2013).

Movant timely filed a pro se motion to vacate, set aside, or correct the judgment on February ll, 2013, and later an amended motion through counsel.2 The motion court denied Movant’s amended motion without an evidentiary hearing, finding that the record conclusively refuted all of Movant’s claims. Movant filed a motion to amend the judgment under Missouri Rule of Civil Procedure 78.07(c), arguing that his post-conviction counsel had abandoned him in that she never consulted with him before filing an amended motion The motion and had substantially altered the factual allegations in his original motion. court denied Movant’s motion to amend the judgment, finding it amounted to an allegation of ineffective assistance of post-conviction counsel. This appeal follows Standard of Review Our review of the motion court’s denial of a motion f`or post-conviction relief is “limited to a determination of whether the findings of fact and conclusions of law are clearly erroneous.” Hicl<ey v. State, 328 S.W.Bd 225, 227 (Mo. App. E.D. 2010) (citing Rule 29.15(k)). Findings and conclusions are clearly erroneous “only if`, after a full review

of the record, this Court is left with a definite and firm impression that a mistake has been made.” § An evidentiary hearing on the claims contained in the motion is warranted when (l) the motion alleges facts, not conclusions, warranting relief; (2) the facts alleged are not refuted by the reeord; and (3) the matters complained of resulted in prejudice to the movant. Teei' v. State, 198 S.W.3d 667, 669 (Mo. App. E.D. 2006) (citing Morrow v. State, 21 S.W.3d 819, 822-23 (Mo. banc 2000)).

Discussion Movant argues that the motion court clearly erred in denying his amended Rule 29.15 motion without a hearing because he alleged unrefuted facts showing that his trial counsel was ineffective for failing to explain the elements of first-degree robbery and of accomplice iiability, causing him to reject a more favorable plea offer. We discuss these arguments together, and we find Movant was entitled to an evidentiary hearing.

A defendant has the right to effective assistance of counsel during plea negotiations, as it is a “critical stage” of the criminal proceeding Williams v. State, 367 S.W.3d 652, 654 (Mo. App. E.D. 2012) (citing Lafler v. Cooper, 566 U.S. ---, 132 S.C. 1376 (2012), and Missouri v. Frye, 566 U.S. --~, 132 S.Ct. 1399 (2012)). In order to show his trial counsel was ineffective, Movant had to allege unrefuted facts showing his counsel’s performance fell below the standard of skill, care, and diligence of a reasonably competent attorney; and that Movant was prejudiced in that but for counsel’s errors, the outcome wouid have been different Williams, 367 S.W.3d at 655 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). In the context of plea negotiations, to show prejudice, Movant must allege unrefuted facts “demonstrate[ing] a reasonable probability [he] would have accepted the earlier plea offer had [he] been afforded effective assistance of counsel.”

Joseph v. State, 482 S.W.3d 457, 460 (Mo. App. E.D. 2016) (quoting E;ye, 132 S.Ct. at 1409-10).

Here, Movant’s amended motion contains two allegations that his trial counsel ineffectively advised him regarding the State’s plea offer of 10 years. First, he argues his trial counsel inisadvised him that in order for Movant to be convicted of robbery in the first degree, the State would have to prove that Movant’s co-defendant used a gun to forcibly take the victim’s property, with “bodily harm toward the victim,” when in fact the charge of first-degree robbery only required a showing that one of them “[d]isplay{ed] or threaten[ed] the use of what appear[ed] to be a deadly weapon or dangerous instrument.”

Section 569.020.1(4), RSMo. (2000). Second, l\/lovant argues that his trial counsel failed to advise him regarding the law of accomplice liability and that he could be convicted on the basis of his co-defendant’s actions. Both failures, he alleges, caused him to reject a plea offer of 10 years.4 The motion court essentially found that Movant failed to allege prejudice because he did not specifically allege that the 10-year plea offer was for all of the charges, rather

than just first-degree robbery. However, the motion as a Whole implies that the lO-year plea offer would have included all charges For example, in alleging prejudice, he states that had he received competent advice, he “would have been sentenced to ten (10) years of incarceration instead of eighteen (18).” Giving Movant the benefit of the doubt regarding his language, sep Hatcher v. State, 4 S.W.3d 145, 148 (Mo. App. S.D. 1999), we find he sufficiently alleged prejudice, and this allegation is not refuted by the record. Any clarification needed regarding the specific offer would come at an evidentiary hearing.

Second, Movant alleged that he received inaccurate advice from his attorney regarding the burden of proof the State had to carry at trial, both regarding the elements of robbery in the first degree and regarding accomplice liability. The record does not refute Movant’s claims that his attorney rnisadvised him in these respects.5 in fact, during Movant’s sentencing hearing, when the trial court asked Movant about his counsel’s representation, he answered every question negatively. Movant expressed that he felt his counsel did not confer with him, was disloyal, did not answer all of his questions, and that he had additional complaints but would include them in his motion. While this by no means establishes Movant’s counsel was ineffective, and we are cognizant of Movant’s prior convictions and familiarity with the legal system,6 the record here did not conclusively refute Movant’s claims that his trial counsel was ineffective, and that he was prejudiced thereby. Thus, Movant was entitled to an evidentiary hearing on his claims. Points granted

Conclusion The motion court did not err in denying Movant’s motion to amend the judgment However, Movant’s amended motion alleged unrefuted facts that would, if true, entitle him to relief; thus, the motion court clearly erred in failing to conduct an evidentiary hearing on the claims in Movant’s amended motion that his trial counsel misadvised him regarding the elements of robbery and the proof necessary for accomplice liability, resulting in prejudice We reverse the motion court’s judgment on Movant’s 29. 15 motion and remand for an evidentiary hearing on these claims.

James M. Dowd, P.J., concurs.

Kurt S. Odenwald, J., concurs.