Case Law Update: 2011-2014 Cumulative Edition

Holding: (1) After J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009), failure to file a timely motion is not jurisdictional. Therefore, the untimeliness of a postconviction motion can only be raised as an affirmative defense, and the defense is waived if not timely raised. Here, the defense is not timely raised because it was not raised in the motion court, but for the first time on appeal. This Court recognizes that the Eastern and Southern Districts have both held to the contrary, but this Court disagrees with them. Thus, the appeal should not be dismissed on this ground. (2) On the merits, Movant claims that the motion court’s Findings are inadequate under Rule 24.035(j) for meaningful appellate review. However, Movant failed to file a motion to amend the judgment under Rule 78.07(c), which provides “[i]n all cases, allegations of error relating to the form or language of the judgment, including the failure to make statutorily required findings, must be raised in a motion to amend the judgment in order to be preserved for appellate review.” This Court now expressly holds that Rule 78.07(c) applies to postconviction proceedings. Since Movant failed to file a motion to amend judgment, the issue is not preserved.
State v. Neal, 2011 WL 1238314 (N.C. Ct. App. 2011):
Holding: Court was required to issue written findings to resolve a material conflict in the evidence over whether Defendant’s motion to suppress should be granted.


Guilty Plea
Webb v. State, No. SC91012 (Mo. banc 3/29/11):

Even though Movant said no promises had been made to him to get him to plead guilty, where Movant claimed his attorney erroneously told him he’d only have to serve 40% of his sentence before being eligible for parole but he really had to serve 85%, this was affirmative misadvice and warranted an evidentiary hearing.

Facts: Movant pleaded guilty to first-degree involuntary manslaughter and ACA. Movant’s plea deal was for a 10 year sentence. However, the trial court indicated it would reject this deal, impose a 12-year sentence, and allowed Movant the opportunity to withdraw his plea. Movant did not. Later, Movant filed a Rule 24.035 motion claiming that his plea was involuntary and unknowing because his attorney was ineffective for telling him he would only have to serve 40% of his sentence before being eligible for parole, but he really had to serve 85%. The motion court found the claim to be refuted by the record since Movant had said at his plea that no promises were made to him to plead guilty.

Holding: Prior Missouri cases have drawn a distinction between an attorney’s failure to inform (which is not ineffective) and giving affirmative misinformation (which is ineffective). Here, Movant claims his attorney affirmatively misinformed him he would only have to serve 40% of his sentence. Movant’s negative response to a routine question that no promises were made to him is too general to refute that no such information was given. The State claims that the SAR would have given correct information, but the Supreme Court reviews it and determines the SAR did not. The Supreme Court also notes that the SAR is part of the record of the case, and should be provided to the attorneys and appellate court where requested. (The circuit clerk had refused to provide it). Movant is entitled to an evidentiary hearing on his claim.

Concurring Opinion: Padilla v. Kentucky, 130 S.Ct. 1473 (2010)(which held that attorneys must inform defendants of immigration consequences of their guilty pleas) indicates that attorneys have an obligation to inform clients of truly clear consequences of their guilty pleas. The Missouri Supreme Court’s prior cases may need to be expanded to take into account Padilla when considering whether counsel rendered ineffective assistance. Other courts have recognized that Padilla applies to other situations besides deportation. The 85% rule in this case was even more “certain” than deportation in Padilla and counsel has a duty to inform of “certain” consequences. There may be other situations where counsel must advise about consequences – a conviction may disqualify a person from professional licenses, used to deny gov’t benefits, access to housing, student loans and health care. Until there is further specific guidance, counsel and courts should be as vigilant as possible to explain to defendants that a guilty plea may carry serious consequences beyond immediate punishment.

Dissenting Opinion: Padilla should not be expanded beyond the deportation context.
Wright v. State, 411 S.W.3d 381 (Mo. App. E.D. 2013):

Holding: Although Eastern District reluctantly upholds a “group guilty plea” despite prior criticism of the practice by the Eastern District and Missouri Supreme Court, a concurring opinion says that “[d]efense lawyers agreeing to such a procedure may well be presumptively ineffective.”
Stanley v. State, No. ED97795 (Mo. App. E.D. 2012):

(1) Even though a second postconviction counsel filed a second amended motion which was untimely, the motion court can grant relief on it if Movant was abandoned by his first postconviction counsel thereby excusing the untimely filing of the second amended motion; and (2) where the guilty plea court failed to advise Movant prior to his plea that he could not withdraw from his non-binding plea agreement if the court chose not to follow the State’s recommendation, Movant was entitled to postconviction relief from the plea where the judge imposed a higher sentence.

Facts: Movant/Defendant pleaded guilty pursuant to a non-binding plea agreement under which the State was going to argue for two concurrent three-years sentences, and the defense could argue for probation. The court did not inform Movant prior to his plea that if the court did not follow the State’s recommendation, Movant could not withdraw the plea. The court ultimately did not follow the State’s recommendation, but instead, sentenced Movant to two consecutive four-year sentences. Movant filed a 24.035 motion, which was timely amended by a first postconviction attorney. Subsequently, the first postconviction attorney withdrew from the case. A second postconviction attorney entered the case and filed a second amended motion alleging that the plea court failed to inform Movant that, should it reject the State’s recommendation, Movant could not withdraw his guilty plea. The second amended motion, however, was untimely because the time for filing any amended motion had expired before the second postconviction counsel entered the case.

Holding: (1) The Missouri Supreme Court has recognized limited exceptions to the timeliness requirements of the postconviction rules. A motion court can permit the filing of an untimely amended motion and consider a movant’s claims if it determines that a movant was abandoned by postconviction counsel. Counsel abandons a movant when he or she is aware of the need to file an amended motion but fails to do so. In such a case, the court may consider an untimely postconviction motion only when the Movant is free of responsibility for failure to comply with the postconviction rule. Here, a remand is required to determine why the second amended motion was untimely, i.e., whether Movant’s first postconviction attorney abandoned him. “If the motion court finds that Movant’s second amended motion was untimely due to no fault of Movant, the motion court must permit Movant to withdraw his plea” based on the second amended motion. (2) Under Rule 24.02(d)(2), the plea court was required to tell Movant that his plea could not be withdrawn if the court did not accept the State’s recommendation. The court failed to do this before he entered his guilty plea. Due process requires that a defendant understand the true nature of his agreement before his plea is accepted by a court. The court must tell a defendant clearly and specifically whether he will or will not be able to withdraw the guilty plea if the court exceeds the recommendation. That did not happen here.
Conger v. State, No. ED96015 (Mo. App. E.D. 10/18/11):

Movant was entitled to evidentiary hearing on claim that he was coerced into pleading guilty because his counsel wanted more money for a trial than Movant could pay.

Facts: Movant (defendant) was charged with various offenses. He ultimately pleaded guilty. At the plea hearing, he said he was not threatened or coerced to plead guilty, and expressed general satisfaction with defense counsel. Later, he filed a 24.035 motion claiming he was coerced to plead guilty because he could not afford the fee counsel demanded to go to trial. The motion court found the claim was refuted by the record.

Holding: An attorney’s statement to a client for additional fees to take a case to trial is not itself coercive. However, a financial conflict of interest arises when a defendant’s inability to pay creates a divergence of interest between counsel and defendant such that counsel pressures or coerces a defendant to plead guilty. Here, Movant pleaded facts which, if true, would warrant relief: Counsel filed motions to withdraw, which were denied; Movant paid counsel $11,500, but counsel said it would cost an additional $20,000 to go to trial; plea counsel pressured Movant by telling him she would not take the cases to trial until additional fees were paid; Movant could not pay the additional $20,000; Movant would not have pleaded guilty had counsel not coerced his decision. The State argues the claim is refuted by the record. But the guilty plea court never informed Movant that if he could not afford counsel for trial, the court would appoint counsel for trial. Movant’s general answers that he was not coerced or threatened and was satisfied with counsel do not refute allegations that Movant’s counsel told him she would not take the case to trial until he paid more fees and that this pressured him to plead guilty. Remanded for evidentiary hearing.
Brown v. State, No. ED94429-01 (Mo. App. E.D. 7/12/11):

Holding: Where (1) Movant claimed that guilty plea counsel was ineffective because counsel told him he’d only serve 3 to 5 years and (2) the plea record showed the court only asked Movant whether or not any threats or promises had been made to him, Movant’s statements were insufficient to cleary refute the claim that counsel promised him a lesser sentence; Movant entitled to evidentiary hearing.
Collins v. State, No. ED94590 (Mo. App. E.D. 3/29/11):

Where Movant alleged his counsel told him he would receive 407 days jail time credit if he pleaded guilty but he later was not given this, Movant was entitled to evidentiary hearing on whether counsel was ineffective.

Facts: Movant pleaded guilty to stealing pursuant to a plea bargain. At his plea, he asked the judge if he would receive jail time credit and the judge said yes. After Movant was delivered to the DOC, he learned that he would only be given 243 days credit instead of 407 days because he was not eligible for time served prior to the date of the offense. (Movant was serving other sentences). Movant filed a Rule 24.035 motion claiming his attorney had been ineffective in advising him that he would receive 407 days credit. The motion court denied the claim without a hearing.

Holding: Movant may be entitled to vacate his guilty plea if his attorney misinformed him about the number of days credit he would receive. Movant’s claim is not refuted by the record, since he specifically asked the judge at his plea if he would be given credit. The State argues that because Movant asked this after his plea was accepted, Movant did not rely on it in pleading guilty. However, the immediacy of the question, the form of the question and the court’s response all show the parties’ and court’s understanding that jail time credit was part of the plea agreement. Movant is entitled to an evidentiary hearing.
Brantley v. State, No. SD30868 (Mo. App. S.D. 4/20/12):

Holding: Where Movant claimed his plea counsel was ineffective in failing to provide him with timely discovery, which caused him to miss a favorable plea offer and later accept a less-favorable one, this stated a viable claim and required a hearing under Missouri v. Frye, 132 S.Ct. 1399 (2012).
State v. Thieman, No. SD30818 (Mo. App. S.D. 11/10/11):

Holding: Where Defendant’s prior guilty plea had been withdrawn, his statements made in a SAR (sentencing assessment report) could not be used by the State at his trial because Rule 24.02(d)(5) provides that “evidence of a guilty plea, later withdrawn, or an offer to plead guilty …, or of statements made in connection with, and relevant to, any of the foregoing pleas or offers is not admissible in any civil or criminal proceeding against the person who made the plea or offer.”
Jack v. State, No. SD30512 (Mo. App. S.D. 8/9/11):

Holding: Denial of Rule 29.07(d) motion to correct manifest injustice is appealable and is governed by rules of civil procedure; judgment becomes final 30 days after entry and notice of appeal is due not later than 10 days thereafter.
Cafferty v. State, 2014 WL 5648639 (Mo. App. W.D. Nov. 4, 2014):
Even though guilty plea form stated that Movant understood the charge of child nonsupport, where Movant told judge during guilty plea that he didn’t pay his child support because he couldn’t find a job after being released from jail, Movant’s guilty plea (1) lacked a sufficient factual basis because he asserted “good cause” for not paying, and (2) was not knowing and voluntary because the record did not show that he understood the specific nature of the charge against him.

Facts: Movant pleaded guilty to criminal nonsupport. During the guilty plea hearing, the judge read the charge to Movant, asked if he had failed to pay child support as alleged, and asked “why was that?” Movant said, “Because I couldn’t find work. Ever since I got out of prison it has been hard to find work.” The Court accepted the plea.

Movant subsequently filed a Rule 24.035 motion.

Holding: Movant claims that no factual basis established that he failed to pay child support “without good cause.” At the time Movant pleaded guilty, Sec. 568.040 provided that a person commits the crime of nonsupport if he “knowingly fails to provide, without good cause, adequate support.” Given Movant’s explanation for why he failed to pay, he did not unequivocally state that he lacked good cause to provide support. Even though Movant signed a petition to enter a plea of guilty and stated that he fully understood the charges against him, a plea petition is not a substitute for a judge insuring that a defendant understands the charge. Movant’s answer as to why he didn’t pay required that the judge explore further to determine either that Movant had the ability to pay or purposely maintained his inability in order to avoid paying. Here, the record does not show that Movant understood the specific nature and elements of the charge. Conviction vacated and remanded.
State v. Hopkins, 2014 WL 928973 (Mo. App. W.D. March 11, 2014):

Holding: Even though Defendant who pleaded guilty was denied his right of allocution at sentencing, the appellate court has no authority to hear this on direct appeal from a guilty plea, but the issue may be raised in a Rule 24.035 motion; a direct appeal of a guilty plea is limited to issues relating to subject matter jurisdiction and the sufficiency of the charging documents.
Frye v. State, 2013 WL 324029 (Mo. App. W.D. Jan. 29, 2013):

Holding: Where Rule 24.035 Movant alleged that plea counsel was ineffective in failing to communicate a plea offer to him (causing him to have entered a guilty plea on less favorable terms), case is remanded to motion court for Findings on prejudice, i.e., whether Movant demonstrated a reasonable probability that the State would not have withdrawn the offer and that the trial court would not have rejected a plea agreement based on the offer.
Dodson v. State, No. WD73680 (Mo. App. W.D. 4/24/12):

Where (1) plea agreement was for “four and defer,” and (2) judge did not inform Defendant that if judge did not give probation that Defendant would not be able to withdraw his plea, this failure to warn failed to comply with Rule 24.02(d)1(B) and necessitated postconviction relief.

Facts: Defendant and State entered into a plea agreement for “four and defer.” At the plea, the judge informed Defendant that the judge could impose 4 years in prison, that the State would not be taking a position on probation, and that no one had promised Defendant probation. The judge did not tell Defendant that if the judge denied probation, Defendant could not withdraw his plea. The judge ultimately sentenced Defendant to 4 years. The Defendant filed a motion to withdraw the plea. At a hearing on that motion, defense counsel testified that the parties’ true agreement was for probation, but that the plea was phrased the way it was because the judge had a policy of refusing to accept agreements for probation. After the motion to withdraw was denied, the Defendant (Movant) filed a Rule 24.035 motion.

Holding: Rule 24.02(d)1(B) allows a prosecutor and defendant to reach an agreement whereby the prosecutor will make a recommendation or agree not to oppose the defendant’s request for a particular disposition with the understanding that such recommendations or requests shall not be binding on the court. Where such an agreement is entered, Rule 24.02(d)2 provides that “if the agreement is pursuant to Rule 24.02(d)1(B), the court shall advise the defendant that the plea cannot be withdrawn if the court does not adopt the recommendation or request.” Here, this was a non-binding plea agreement within the ambit of Rule 24.02(d)1(B) because of use of the term “defer,” i.e., the State would neither recommend nor oppose probation. Therefore, the agreement fell within the scope of 24.02(d)2, which required the court to advise Defendant that the plea could not be withdrawn if the court did not accept it. Since the court did not so warn Defendant, postconviction relief is granted.
* U.S. v. Davila, 93 Crim. L. Rep. 392, ___ U.S. ___ (U.S. 6/13/13):

Holding: Federal judge’s participation in plea negotiations in violation of Federal Rule 11 does not require vacating the guilty plea unless the record shows Defendant would not have pleaded guilty in the absence of the error.
* Chaidez v. U.S., 92 Crim. L. Rep. 609, ___ U.S. ___ (U.S. 2/20/13):
Holding: Padilla’s ruling that defense attorneys must warn clients about immigration consequences is a new rule that is not retroactive on collateral review.
* Missouri v. Frye, ___ U.S. ___, 90 Crim. L. Rep. 849 (U.S. 3/21/12):

Holding: (1) Failure to communicate plea offer to Defendant before it expired is ineffective assistance of counsel, and (2) to show prejudice a Defendant must show a reasonable probability he would have accepted the expired offer and a reasonable probability the prosecution would have adhered to the agreement and that it would have been accepted by the court.
* Freeman v. U.S., ___ U.S. ___, 2011 WL 2472797 (U.S. 6/23/11):

Holding: Even though a defendant pleads guilty with a particular recommended sentence as a condition of the plea, defendant may still be eligible for a sentence reduction if the U.S. Sentencing Commission later lowers the sentencing range
* Premo v. Moore, ___ U.S. ___, 88 Crim. L. Rep. 474, 131 S.Ct. 733 (U.S. 1/19/11):

Holding: State court decision that counsel was not ineffective in not moving to suppress statement to police before a guilty plea was not unreasonable, where Defendant had also confessed to other individuals.
U.S. v. Saferstein, 90 Crim. L. Rep. 788 (3d Cir. 1/26/12):

Holding: A district judge’s botched summary of the terms of a plea bargain during a plea colloquy had the effect of expanding the defendant’s right to appeal, notwithstanding specific limitations to the contrary laid out in the written agreement.
U.S. v. Orocio, 89 Crim. L. Rep. 620 (3d Cir. 6/29/11):

Holding: Padilla is retroactive to cases on collateral review.
U.S. v. Fisher, 93 Crim. L. Rep. 43 (4^th Cir. 4/1/13):

Holding: Officer’s lies on a search warrant rendered the Defendant’s guilty plea involuntary, where defense lawyer testified that she advised Defendant to plead guilty because there were no grounds to challenge the warrant (but there would have been if the lies had been known).
U.S. v. Smith, 89 Crim. L. Rep. 244 (4^th Cir. 5/17/11):

Holding: Even though Defendant pleaded guilty, this did not waive a claim that there was a breakdown of communication so bad as to constitute constructive denial of counsel.
U.S. v. Pena, 93 Crim. L. Rep. 450 (5^th Cir. 6/18/13):

Holding: Federal judge improperly participated in plea negotiations when he suggested at a status conference that the agreement being negotiated should be linked to resolution of other pending charges against Defendant.

U.S. v. Carreon-Ibarra, 90 Crim. L. Rep. 788 (5^th Cir. 2/29/12):

Holding: A district court’s admonition to a guilty-pleading defendant that he faced a sentence of five years to life was not sufficient to ensure that the defendant understood that he was pleading guilty to a machinegun possession offense with a mandatory minimum of 30 years.
U.S. v. Hogg, 2013 WL 38354009 (6^th Cir. 2013):

Holding: Even though plea court advised Defendant of the then-correct range of punishment at time of plea, court’s failure to anticipate that Fair Sentencing Act (which had just gone into effect) would apply to persons who were sentenced after the effective date and would thus substantially reduce Defendant’s range of punishment entitled Defendant to withdraw his plea.
U.S. v. Mendez-Santana, 2011 WL 1901545 (6^th Cir. 2011):

Holding: Defendant had absolute right to withdraw an unaccepted guilty plea, and did not have to show legal error to do so.
U.S. v. Szymanski, 88 Crim. L. Rep. 350294 (6^th Cir. 2011):

Holding: Where in child pornography plea the court failed to inform Defendant that the Gov’t had to prove he knew that the material he had featured underage persons, this warranted allowing withdrawal of plea because Defendant in his PSI denied any knowledge that the material he had constituted child pornography.
U.S. v. Mendez-Santana, 89 Crim. L. Rep. 318 (6^th Cir. 5/20/11):

Holding: Federal district court has no discretion to deny a defendant’s motion to withdraw a guilty plea before its acceptance by the court.
U.S. v. Lara, 2012 WL 3763617 (8^th Cir. 2012):

Holding: Sentencing court erred in allowing plea agreement to be breached where sentencing court allowed Gov’t to present evidence of drug quantity listed in the PSI after the Gov’t had stipulated to the quantity in the agreement.
U.S. v. Heid, 2011 WL 3503314 (8^th Cir. 2011):