Barber v. State

• Decision Date: 14 July 2020
• Docket Number: WD 82714
• Parties: Stanley BARBER, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

609 S.W.3d 795

Stanley BARBER, Appellant,

v.STATE of Missouri, Respondent.

WD 82714

Missouri Court of Appeals, Western District.

OPINION FILED: July 14, 2020

Motion for Rehearing and/or Application for Transfer to Supreme Court Denied September 1, 2020

Application for Transfer Denied November 24, 2020

Kathryn Merwald, Kansas City, MO, Counsel for Appellant.

Gregory Barnes, Jefferson City, Mo, Counsel for Respondent.

Before Division Four: Karen King Mitchell, Presiding Judge, Thomas H. Newton and Lisa White Hardwick, Judges

Thomas H. Newton, Judge

Mr. Stanley Barber appeals the Clay County Circuit Court's judgment denying a Rule 24.035 motion. He contends that the court erred in denying his claim that his counsel was ineffective for failing to advise him that a pending felony stealing charge should be dismissed under Bazell¹ and for advising him instead to accept a plea agreement to a different, amended charge—felony receiving stolen property—and a three-year prison term. We reverse and remand.

As outlined more fully below, Mr. Barber was charged in 2015 with C felony stealing for an offense that occurred in 2012. The charge was still pending when the Missouri Supreme Court issued its opinion in State v. Bazell , 497 S.W.3d 263 (Mo. banc 2016), and several months later, Mr. Barber agreed, on the advice of counsel, to plead guilty to an amended charge, C felony receiving stolen property, with restitution, and a recommended three-year prison sentence. The State filed an amended charge in January 2017 on the same day that Mr. Barber pleaded guilty to felony receiving stolen property. As agreed, he was sentenced to three years in prison.

Mr. Barber timely filed a pro se Rule 24.035 motion claiming that counsel was ineffective for failing to advise him of the Bazell decision before negotiating the plea agreement and that, if he had known that he had a statute of limitations defense to the stealing charge under Bazell, he would not have entered a plea to a different felony charge and would instead have insisted on going to trial. Post-conviction counsel was appointed to represent Mr. Barber and timely filed an amended Rule 24.035 motion.

The amended motion raised two interrelated issues: that plea counsel was ineffective in failing (1) to advise Mr. Barber that he had a statute of limitations defense to the stealing charge under Bazell , and had Mr. Barber been so advised, he would not have pleaded guilty and would instead have insisted on going to trial with a reasonable probability that the court would have dismissed the misdeameanor stealing charge as barred by the statute of limitations, and any other charge filed against him would also have been dismissed as untimely; and (2) to object to the filing of the amended information that charged Mr. Barber with a different offense, also barred by the statute of limitations and not saved by tolling, to which objection the trial court would have responded by denying the motion for leave to amend thus forcing the State to proceed under the original stealing charge that was barred by the statute of limitations as argued in the first claim. The amended motion argued as to both claims that they would have succeeded before the plea court and were thus meritorious. Following an evidentiary hearing, the motion court denied the motion, and this timely appeal followed.

Legal Analysis

We review a motion court's denial of a Rule 24.035 motion "only to determine whether the findings and conclusions are clearly erroneous. Rule 24.035(k)." Parsons v. State , 574 S.W.3d 810, 815 (Mo. App. E.D. 2019).

Findings and conclusions are clearly erroneous only if, after reviewing the entire record, we are left with the definite and firm impression that a mistake has been made. We presume that the motion court's findings are correct.

[The movant's] burden of proof is established by Strickland's two-prong test for determining ineffective-assistance-of-counsel claims in post-conviction-relief cases. [ Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ]. To be entitled to relief, the movant must show by a preponderance of the evidence that (1) his counsel failed to exercise the level of skill and diligence that a reasonably competent counsel would in a similar situation, and (2) he was prejudiced by that failure.

Id. at 815-16 (citations omitted).

"If conviction results from a guilty plea, any claim of ineffective assistance of counsel is immaterial except to the extent that it impinges the voluntariness and knowledge with which the plea was made." Johnson v. State , 580 S.W.3d 895, 900 (Mo. banc 2019) (citation omitted).

In the guilty-plea context, the U.S. Supreme Court has expounded at some length on the second Strickland prong: "When a defendant claims that his counsel's deficient performance deprived him of a trial by causing him to accept a plea, the defendant can show prejudice by demonstrating a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Lee v. United States , ––– U.S. ––––, 137 S. Ct. 1958, 1965, 198 L.Ed.2d 476 (2017).

The Court in Lee drew an important distinction between ineffective assistance that occurs during a trial and ineffective assistance that occurs during plea negotiations. A claim of ineffective assistance of counsel will often involve a claim of attorney error during the course of a legal proceeding – for example, that counsel failed to raise an objection at trial or to present an argument on appeal. A defendant raising such a claim can demonstrate prejudice by showing a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

But a claim of ineffective assistance in plea negotiations amounts, by contrast, to an averment that counsel's deficient performance arguably led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself. When a defendant alleges his counsel's deficient performance led him to accept a guilty plea rather than go to trial, we do not ask whether, had he gone to trial, the result of that trial would have been different than the result of the plea bargain. That is because, while we ordinarily apply a strong presumption of reliability to judicial proceedings, we cannot accord any such presumption to judicial proceedings that never took place. We instead consider whether the defendant was prejudiced by the denial of the entire judicial proceeding ... to which he had a right.

Parsons , 574 S.W.3d at 816 (citations omitted).

"A defendant must enter a guilty plea knowingly and voluntarily." Taylor v. State , 497 S.W.3d 342, 348 (Mo. App. W.D. 2016).

In addition, a defendant is entitled to the effective representation of counsel in connection with the negotiation of a plea agreement. The negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel. Before deciding whether to plead guilty, a defendant is entitled to the effective assistance of competent counsel. Effective assistance in plea negotiations requires counsel to conduct a reasonable investigation before advising a client to accept a plea[.]

Id. at 349 (citations omitted).

To aid the defendant in reaching a decision, defense counsel, after appropriate investigation, should advise the defendant of the alternatives available and address considerations deemed important by defense counsel or the defendant in reaching a decision. Defense counsel should not recommend to a defendant acceptance of a plea unless appropriate investigation and study of the case has been completed.

An appropriate investigation by counsel is necessary to ensure a defendant makes a knowing and voluntary decision to accept a guilty plea, because prior to pleading guilty, a defendant needs to know, for example, the probability of conviction in the event of trial. Because this requires a careful evaluation of problems of proof and of possible defenses , few defendants can make this appraisal without the aid of counsel. Where a defendant can show that plea counsel's failure to conduct an adequate investigation affected the voluntariness and understanding with which the plea of guilty was made, the defendant may state a viable claim for post-conviction relief.

Id. at 349-50 (emphasis added) (citations omitted).

Although Mr. Barber presents two points relied on, they are best analyzed together as arising from counsel's representation of him during a single plea negotiation that started with one criminal charge going in and ended with another to which he agreed to enter a guilty plea.² In the first point, Mr. Barber argues that the motion court clearly erred in denying the claim that plea counsel was ineffective for failing to advise of and raise a statute-of-limitations defense to the stealing charge in light of Bazell , and this ineffectiveness resulted in an unknowing and involuntary plea.³ Mr. Barber contends that he established that he was not aware, after Bazell was decided, that stealing was a misdemeanor violation with a one-year statute of limitations. Because the stealing charge was filed more than one year after the alleged act, Mr. Barber claims that a motion to dismiss would have been meritorous. In the second point, Mr. Barber argues that counsel was ineffective for not objecting to or seeking to dismiss the first amended information because the statute of limitations is not tolled when the State later charges a different offense, and the amended information was filed beyond the three-year statute of limitations for felony receiving stolen property.⁴

Of particular importance to understanding whether Mr. Barber's guilty plea in January 2017 to a felony charge of receiving stolen property, which was negotiated to resolve the outstanding stealing charge, was knowing and voluntary is a chronology of key events. That chronology...