Allen v. State

• Citation: 484 S.W.3d 808
• Decision Date: 01 December 2015
• Docket Number: No. ED 102317,ED 102317
• Parties: Rodney E. Allen, Appellant, v. State of Missouri, Respondent.
• Court: Missouri Court of Appeals

484 S.W.3d 808

Rodney E. Allen, Appellant,

v.State of Missouri, Respondent.

No. ED 102317

Missouri Court of Appeals, Eastern District, DIVISION TWO .

Filed: December 1, 2015

Motion for Rehearing and/or Transfer Denied by Supreme Court January 25, 2016

Application for Transfer Denied April 5, 2016

Andrew E. Zleit, 1010 Market Street, Suite 1100, Saint Louis, MO, 63101, for appellant.

Evan J. Buchheim, 221 West High St., P.O. Box 899, Jefferson City, MO, 65102, for respondent.

Angela T. Quigless

, Judge

I. Introduction

Rodney E. Allen ("Movant") appeals from the motion court's denial of his Rule 24.035¹ post-conviction relief ("Rule 24.035 motion") without an evidentiary hearing. Movant pled guilty to three counts of the unclassified felony of first-degree statutory sodomy, in violation of Section 566.062, RSMo (2000)

,² one count of the class B felony of first-degree child molestation, in violation of Section 566.067, and one count of the class D felony of sexual misconduct involving a child, in violation of Section 566.083. In his Rule 24.035 motion, Movant claims, inter alia, that his guilty pleas were not knowingly, voluntarily, and intelligently entered because his plea counsel failed to advise him that he would be subject to "lifetime supervision" as a consequence of his guilty pleas. Finding no error, we affirm.

II. Factual and Procedural Background

In the underlying criminal case, Movant was indicted on three counts of first-degree statutory sodomy (Counts I, II,³ and VI), one count of first-degree child molestation (Count IV), and one count of sexual misconduct involving a child by indecent exposure (Count V). The factual basis for the guilty pleas was that Movant: touched a child's genitals with his hand (Count I); put his penis into the same child's anus (Count II); touched the child's genitals through the clothing (Count IV); and knowingly exposed his genitals to the child (Count V). The factual basis for Count VI was that Movant touched a different child's genitals with his hand.

On the day of trial, Movant decided to enter blind pleas⁴ to all counts, except for Count III. Before offering his pleas, Movant informed the plea court that his counsel had explained the charges to him and that he had enough time to confer with his counsel about whether to plead guilty or not. Movant understood he could proceed to trial, and understood the other rights he would have at trial. After the State recited the factual basis for the pleas, Movant agreed that the acts set out by the State were true.

The State announced the following range of punishment: ten to thirty years' or life imprisonment for Counts I, II, and VI; five to fifteen years' imprisonment for Count IV; and one to four years' imprisonment for Count V. Movant verified that he understood the State's recommendation and acknowledged no promise was being made about the sentence. Movant reiterated to the court that his plea counsel had explained the charges and answered his questions, that he had been told the range of punishment, and that he had a sufficient opportunity to discuss his case with his plea counsel. The plea court accepted Movant's guilty pleas. At the sentencing hearing, the court sentenced Movant to twenty years each on Counts I, II, and VI, fifteen years on Count IV, and four years on Count V, all to be served concurrently.

Movant timely filed a pro se Rule 24.035 motion for post-conviction relief, which counsel later amended. Movant alleged, inter alia, that his plea counsel was ineffective for failing to inform him "that as part of any punishment he received for his first-degree statutory sodomy convictions, he would be subjected to lifetime supervision." The motion court denied Movant's motion without an evidentiary hearing. Movant appeals.

III. Standard of Review

Our review of the denial of a Rule 24.035 motion is "limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous." Rule 24.035(k); Weeks v. State, 140 S.W.3d 39, 44 (Mo. banc 2004)

. The findings and conclusions are deemed clearly erroneous only if, after reviewing the entire record, we are left with the definite impression that a mistake has been made. Brooks v. State, 242 S.W.3d 705, 708 (Mo. banc 2008). A movant has the burden to show by a preponderance of the evidence that the motion court clearly erred in its ruling. Roberts v. State, 276 S.W.3d 833, 835 (Mo. banc 2009).

IV. Discussion

In Movant's sole point on appeal, he asserts the motion court clearly erred in denying his Rule 24.035 motion without an evidentiary hearing because he pled facts, not refuted by the record, which would entitle him to relief on his claim that his plea counsel was ineffective for failing to advise him that he would be subject to lifetime supervision as a consequence of his guilty pleas. Movant asserts, in his Rule 24.035 motion, that had he been informed of the requirement of lifetime supervision, "[Movant] would have refused to plead guilty on any count and instead would have insisted on going to trial...." Movant argues that his plea counsel should have informed him of the requirement because it is a direct consequence of his guilty pleas, irrespective of whether that consequence is considered regulatory or punitive under Burgess v. State, 455 S.W.3d 21, 25 (Mo. App. E.D. 2014)

. We disagree.

When a movant requests an evidentiary hearing on a claim of ineffective assistance of counsel, the movant must allege facts, that if true would warrant relief and unrefuted by the record, "that (1) trial counsel's performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney and (2) he was thereby prejudiced." Webb v. State, 334 S.W.3d 126, 128 (Mo. banc 2011)

; see also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). For a plea of guilty, prejudice exists when but for counsel's deficient performance, there is a reasonable probability that the movant would not have pled guilty but insisted on going to trial. Webb, 334 S.W.3d at 128.

By pleading guilty, a movant waives "any claim that counsel was ineffective except to the extent that the conduct affected the voluntariness and knowledge with which the plea was made." Worthington v. State, 166 S.W.3d 566, 573 (Mo. banc 2005)

. A voluntary and intelligent plea "means, inter alia, that the defendant must enter the plea with knowledge of the direct consequences of the plea." Reynolds v. State, 994 S.W.2d 944, 946 (Mo. banc 1999) (citation omitted). "Direct consequences are those which definitely, immediately and largely automatically follow the entry of a plea of guilty." Ramsey v. State, 182 S.W.3d 655, 659 (Mo. App. E.D. 2005). Counsel has a basic duty to advise a defendant of direct consequences of his plea. Johnson v. State, 451 S.W.3d 276, 279 (Mo. App. W.D. 2014) (citation omitted).

However, counsel has no duty to inform a defendant of collateral consequences of pleading guilty. Redeemer v. State, 979 S.W.2d 565, 572 (Mo. App. W.D. 1998)

; Price v. State, 974 S.W.2d 596, 599 (Mo. App. E.D. 1998). Accordingly, counsel's failure to advise a defendant regarding collateral consequences of a guilty plea cannot rise to the level of constitutionally ineffective assistance of counsel. Redeemer, 979 S.W.2d at 572.

Movant contends his guilty pleas were neither knowingly nor voluntarily entered because his counsel failed to inform him of the requirement of "lifetime supervision" under Section 217.735.1.⁵ Movant argues that, because Movant is mandatorily subject to lifetime supervision under the section, lifetime supervision is a direct consequence of his guilty plea and that, as such, his counsel had obligation to inform him of the consequence. We disagree.

Under current Missouri law, "issues concerning parole eligibility, and the requirement to register as a sex offender, are generally deemed to be ‘collateral consequences' of a guilty plea; plea counsel is therefore not required to discuss such matters with a defendant in order for the defendant's guilty plea to be considered knowing and voluntary." McCoy v. State, 456 S.W.3d 887, 893 (Mo. App. W.D. 2015)

(citation omitted); see, e.g., Reynolds, 994 S.W.2d at 946 ("parole eligibility is considered to be a ‘collateral consequence’ of a plea, about which counsel has no obligation to inform the defendant"); Ramsey, 182 S.W.3d at 659–61 (holding that sex-offender registration is a collateral consequence of a guilty plea because it is "non-punitive and regulatory"). Relying on the reasoning in Ramsey, this court in Burgess also held that parole monitoring is non-punitive and regulatory and, therefore, a collateral consequence of a guilty plea. 455 S.W.3d at 25. Movant, however, asserts Burgess and Ramsey should be reexamined because the distinction between regulation and punishment is not supportable by Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). Padilla held that plea counsel has a constitutional obligation to advise a noncitizen defendant of the risk of adverse immigration consequences, such as deportation, arising out of a guilty plea. 559 U.S. at 368–69, 130 S.Ct. 1473. Emphasizing the "unique nature" of deportation as a consequence of a criminal conviction, the Court held that the "collateral versus direct distinction is ... ill suited [sic ] to evaluating a Strickland

claim concerning the specific risk of deportation." Id. at 365–66, 130 S.Ct. 1473.

The Missouri Supreme Court has not decided whether Padilla

expands counsel's obligation to inform a defendant of non-deportation consequences of a guilty plea. McCoy, 456 S.W.3d at 893 (discussing Webb ,⁶ 334 S.W.3d 126 ). However, the Court of Appeals has clearly "declined to expand Padilla's reasoning beyond the deportation context into parole matters." Simmons v. State, 432 S.W.3d 306, 310 (Mo. App. E.D. 2014). In Smith v. State, the court reasoned that "the Missouri Supreme Court in its consideration of Padilla in Webb...