DePriest v. State, ED 102307

Citation478 S.W.3d 494
Decision Date27 October 2015
Docket NumberED 102307
Parties David G. DePriest, Appellant, v. State of Missouri, Respondent.
CourtCourt of Appeal of Missouri (US)

478 S.W.3d 494

David G. DePriest, Appellant,
v.
State of Missouri, Respondent.

ED 102307

Missouri Court of Appeals, Eastern District, DIVISION TWO .

Filed: October 27, 2015
Motion for Rehearing and/or Transfer to Supreme Court Denied January 4, 2016
Sustained and Cause Ordered Transferred March 1, 2016


Lisa M. Stroup, 1010 Market Street, Suite 1100, St. Louis, MO 63101, for appellant.

Chris Koster, Shaun J. Mackelprang, P.O. Box 899, Jefferson City, MO 65102, for respondent.

Introduction

Gary M. Gaertner, Jr., Judge

David DePriest (Movant) appeals the denial of his motion to vacate his guilty plea under Rule 24.0351 (Rule 24.035 Motion) without an evidentiary hearing. This appeal concerns the fundamental constitutional issue of a defendant's voluntariness in entering a plea of guilty, and the inherent constitutional risks involved when a

478 S.W.3d 497

court chooses to accept multiple defendants' pleas of guilty at the same time.

Specifically, the Missouri Supreme Court and this Court have admonished the trial court here on multiple occasions that group pleas are disfavored and should be conducted "sparingly," if at all.2 Roberts v. State, 276 S.W.3d 833, 856 n.5 (Mo. banc 2009). While the Missouri Supreme Court declined to adopt a rule that group pleas are per se unconstitutional, it did note that the practice increases the risk that pleas are either unknowing or involuntary. See id.

Despite this, the trial court here not only again engaged in this questionable practice, but also compounded the general risks by receiving simultaneous guilty pleas from co-defendants who were (1) siblings, (2) charged with the same offenses stemming from the same drug evidence, the majority of which was found in Movant's bedroom, (3) represented by the same attorney, and (4) pleading guilty pursuant to a plea agreement with the State that made any benefit to Movant's sister contingent on Movant's blind plea. Without inquiring further about any potential conflicts, the trial court proceeded to have Movant and his sister plead guilty standing side-by-side, with only their conflicted lawyer appearing on their behalf, alongside five additional defendants and their lawyers, in order to "save a great deal of time." If there was ever a time to condemn this group-plea procedure, it is now, in this case.

Because of the group plea under the circumstances here, there is no way to read this record and conclude that Movant voluntarily pled guilty. We reverse and remand with directions to vacate Movant's plea.

Background

The following facts are contained in the record of Movant's guilty plea. The State charged Movant and his sister Natalie DePriest (Natalie) with the felony drug offenses of producing a controlled substance by knowingly cultivating more than five grams of marijuana (Count I), and possession of a controlled substance with intent to distribute (Count II). These charges came after police executed a search warrant at a residence occupied by Movant and Natalie. Police found 12 mature marijuana plants, eight small sprout marijuana plants, and marijuana in the closet in Movant's bedroom.3 Police also seized a rifle

478 S.W.3d 498

that was one-quarter of an inch shorter than allowed by Missouri law, resulting in a charge of unlawful possession of a weapon (Count III) against Movant.

Movant's counsel (Counsel) represented Movant on all three charges, and he also represented Natalie on Counts I and II against her. Early on in Movant's case, the State offered a plea agreement whereby Movant would receive a 10–year sentence pursuant to Section 559.115, which would have first required him to successfully serve 120 days in a shock incarceration program. If he had not been successful, he would have served the remainder of his 10–year sentence. If Movant had successfully completed the 120 days' shock incarceration program, he would have been placed on a term of probation. At that point, he would have been required to serve the remainder of his 10–year sentence only if he violated the terms of his probation.

Counsel subsequently filed a motion to suppress evidence and conducted a joint preliminary hearing4 with Movant and Natalie, at which an associate circuit judge also heard argument on the motion to suppress.5 After this hearing, the State revoked its first offer and made another offer of 15 years, with the same opportunity for probation after 120 days' shock incarceration.6 Counsel later wrote to the prosecutor requesting another plea agreement that would include a recommendation for a suspended imposition of Movant's sentence with probation, but the State informed Counsel that no further offers would be forthcoming. The prosecutor stated that both of the prior offers Movant rejected were "better than the standard offer down here for that kind of case."7

Both Movant and Natalie ultimately entered blind pleas of guilty8 to the charges against them, but only Natalie received anything in exchange from the State for doing so. The State agreed that if Movant pled guilty with Natalie, the State would dismiss some additional charges of passing bad checks, not pursue any bad-check charges in the future, and reinstate her bond so she could be released from jail pending sentencing.9 The State's

478 S.W.3d 499

agreement with Natalie was contingent on Movant pleading guilty to avoid the possibility of Natalie later testifying that Movant had no involvement with the drugs, and the prosecutor further wanted them both to plead guilty on the same day.

On the day Movant and Natalie pled guilty, the trial court simultaneously received five other guilty pleas. The trial court stated that the reason for this procedure was "quite frankly, ... to save a great deal of time." The trial court conducted this group plea by "addressing [its] questions and comments to [the seven defendants] as a group." The trial court told them for their responses, the court would begin with one defendant "and then move straight on down the line in order."

During this plea proceeding, Counsel and the prosecutor informed the trial court that the dismissal of Natalie's additional charges and the reinstatement of her bond were contingent on Movant's plea of guilty. The trial court was also aware that Counsel represented both Movant and Natalie, but made no further inquiry into the possibility of an actual conflict of interest upon hearing the terms of the plea agreement. The trial court accepted Movant's and Natalie's pleas and set a later date for sentencing.

At sentencing, Counsel asked that the trial court consider suspending imposition of Movant's sentence and granting Movant probation. Counsel noted that the crimes to which Movant pled guilty were nonviolent crimes, and the only prior conviction on Movant's record was the result of a court-martial proceeding in 1999 when Movant was in the Army; the equivalent of a misdemeanor for possession of a controlled substance. Counsel also noted that the sentencing assessment report for Movant indicated he was "a good risk to succeed on probation." The State argued conversely that the evidence showed "a large scale hydroponic grow operation" and recommended the maximum sentences of 15 years each for Counts I and II, and seven years for Count III. The State also asked the court to order them to run consecutively, for a total sentence of 37 years.10 The trial court ultimately did impose the maximum sentences, but ordered the two 15–year sentences to be served concurrently, and consecutive to the seven-year sentence, for a total of 22 years' imprisonment.11

Movant filed his Rule 24.035 Motion, raising several claims of ineffective assistance of counsel and containing additional factual allegations. Among them, Movant argued that his counsel was ineffective for (1) laboring under an actual conflict of interest by representing Movant and Natalie; (2) laboring under an additional conflict of interest due to Counsel's own political efforts toward the legalization of marijuana; (3) failing to inform Movant that by proceeding with the preliminary hearing, the State would revoke its plea offer; (4) allowing Movant to participate in the trial court's group plea procedure; and (5) failing to object when the trial court closed the courtroom to the public. The motion court—the same court that conducted the group plea at which Movant pled guilty—denied Movant's motion

478 S.W.3d 500

without an evidentiary hearing. This appeal follows.

Standard of Review

Our review of a motion court's denial of a Rule 24.035 motion is limited to the determination of whether the findings and conclusions of the motion court were clearly erroneous. Rule 24.045(k). A movant is entitled to an evidentiary hearing on the claims in his motion where he or she alleges facts, not refuted by the record, that if true, would warrant relief; and the matters complained of resulted in prejudice, Recklein v. State, 813 S.W.2d 67, 70 (Mo. App. E.D. 1991). However, where the record allows this Court to determine the correctness of the motion court's actions, no remand for a hearing is necessary. See Luster v. State, 795 S.W.2d 109...

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    ...and with an understanding that the trial court could impose any sentence within the authorized range of punishment. DePriest v. State, 478 S.W.3d 494, 498 (Mo.App.E.D. 2015).2 An Alford plea allows a defendant to plead guilty to a charged offense without admitting actual guilt when the reco......
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