Frye v. State

• Decision Date: 29 January 2013
• Docket Number: No. WD 70504.,WD 70504.
• Citation: 392 S.W.3d 501
• Parties: Galin E. FRYE, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

392 S.W.3d 501

Galin E. FRYE, Appellant,

v.STATE of Missouri, Respondent.

No. WD 70504.

Missouri Court of Appeals,

Western District.

Jan. 29, 2013.

Emmett D. Queener, Columbia, MO, for appellant.

Shaun J. Mackelprang, Jefferson City, MO, for respondent.

Before Special Division: THOMAS H. NEWTON, Presiding Judge, JOSEPH M. ELLIS, Judge and CYNTHIA L. MARTIN, Judge.

CYNTHIA L. MARTIN, Judge.

This appeal follows the United States Supreme Court's vacation of our opinion in Frye v. State, 311 S.W.3d 350 (Mo.App. W.D.2010) (“Frye I ”) and remand of the case to this court to determine state law questions bearing on the federal question of Strickland¹ prejudice where ineffective assistance of counsel is claimed in connection with plea negotiations. Missouri v. Frye, 566 U.S. ––––, 132 S.Ct. 1399, 1410–11, 182 L.Ed.2d 379 (2012) (“ Frye II ”). In Frye I, we reversed a motion court's judgment rejecting a Rule 24.035 motion claiming ineffective assistance of counsel where trial counsel failed to communicate a plea offer. Frye I, 311 S.W.3d at 361.

Having resolved the state law questions remanded to this court by the United States Supreme Court, we again reverse the motion court's judgment and remand this matter for further proceedings as hereinafter described.

Factual and Procedural Summary²

On August 14, 2007, the State charged Frye with one count of the class D felony of driving while his driving privilege was revoked in violation of section 302.321.³ Frye had previously been convicted of three misdemeanor driving while revoked charges on May 21, 2004, April 20, 2006, and February 10, 2006.

Frye's preliminary hearing was scheduled for November 9, 2007. Frye contacted counsel the day before to inform him that he could not attend the hearing. Trial counsel appeared on Frye's behalf and received a continuance of the preliminary hearing to January 4, 2008. Frye had no other scheduled court appearances between November 9, 2007, and January 4, 2008.

On November 15, 2007, the State sent Frye's trial counsel a written plea offer (“Offer”). The Offer was file stamped as received in trial counsel's office on November 19, 2007. The Offer stated:

My recommendation is a [sic] follows: 3 and defer, on the felony with 10 days “shock” in the Boone County Jail; OR 90 days to serve on an amended misdemeanor in the Boone County Jail.

I am going to subpoena witnesses for the preliminary hearing on January 4, 2008. I will need to know if Mr. Frye will be waiving [sic] to preserve the offer by noon on December 28, 2007.

Trial counsel's highlighting of, and other pen marks on, the written Offer, coupled with trial counsel's testimony at the post-conviction hearing, confirm that trial counsel actually received and read the Offer approximately one week after it was mailed.

Frye testified at the post-conviction hearing that he had no knowledge of the Offer until after he was convicted, sentenced, and incarcerated.⁴ At the time of the Offer, Frye lived in St. Louis, Missouri. Trial counsel had Frye's mailing address. Frye testified at the post-conviction hearing that during the Offer window he did not see or speak with trial counsel and that his mailing address did not change.

Trial counsel testified at the post-conviction hearing that trial counsel could not recall whether he had communicated the Offer to Frye. Trial counsel testified that there was no correspondence in his file to indicate any effort was made by his office to mail the Offer to Frye. Trial counsel could not recall speaking with, seeing, or ever attempting to contact Frye during the Offer window of November 15, 2007, to December 28, 2007.

On January 4, 2008, Frye appeared for his continued preliminary hearing. Trial counsel, who was unable to attend, placed a note in Frye's file for the docket attorney covering the hearing. The note stated “—Probably should—Talk to him, from St. Louis, rec is tagged—Also has new misd, (go ahead & enter) WAIVE.” Trial counsel interpreted his note during the post-conviction hearing. He testified that his note indicated that the Offer was included in the file and should be discussed with Frye. By this time, however, the Offer had expired. Frye testified that the docket attorney did not advise him of the expired Offer at the time of the preliminary hearing. Trial counsel interpreted his note's reference to “new misd” as referring to the fact that Frye had received another charge. Frye testified during his post-conviction hearing that he received another misdemeanor driving while revoked charge on December 30, 2007, although the record does not reflect where this charge was received. This was two days after the Offer expired. It is unclear how trial counsel knew of Frye's new charge, though we surmise Frye must have had a discussion of some sort with his counsel between December 30, 2007, the date of the new charge, and January 4, 2008, the date of the preliminary hearing.

On March 3, 2008, Frye entered an “open” guilty plea to the class D felony of driving while revoked. The new charge Frye received on December 30, 2007, was not discussed or disposed during the guilty plea hearing. The State recommended a three year sentence, deferred, with ten days shock time. This was identical to the first of the two options that had been described in the Offer. The sentencing court did not accept the State's recommendation, however. Frye was sentenced on May 5, 2008, to three years' imprisonment in the Missouri Department of Corrections.

On June 9, 2008, Frye filed a pro se motion seeking post-conviction relief pursuant to Rule 24.035 (“Motion”). Frye's Motion alleged that trial counsel was ineffective for failing to communicate the Offer. Following an evidentiary hearing, the motion court denied Frye's Motion. Frye appealed.

Appellate Procedural History

In Frye I, Frye contended that the motion court clearly erred in denying his motion because he received ineffective assistance of counsel when trial counsel failed to inform him of the Offer which would have permitted Frye to plead to a misdemeanor instead of a felony, and which would have exposed him to a lesser range of sentencing than the sentence imposed following his guilty plea. Id. at 353.

We found that Frye established both defective performance by trial counsel and prejudice as required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Specifically, we found that trial counsel's performance was deficient because he failed to communicate the Offer that was more favorable than the guilty plea terms Frye ultimately accepted. Frye I, 311 S.W.3d at 353–56. We also found that Frye demonstrated prejudice because there was a reasonable probability that Frye would have accepted the Offer to plead to a lesser charge, which would have exposed him to a maximum range of punishment that was less than the sentence ultimately imposed. Id. at 360–61. In other words, we concluded that Frye demonstrated that there was a reasonable probability that “but for” his trial counsel's deficient performance, the outcome would have been different. Id. at 357–59 (“To demonstrate prejudice, the movant must show a reasonable probability that, but for his attorney's unprofessional errors, the result of the proceeding would have been different.”). We deemed Frye's guilty plea withdrawn, and remanded the case for further proceedings. Id. at 361.

The State's application for transfer to the Missouri Supreme Court was denied. Id. at 350. The State's petition for writ of certiorari to the United States Supreme Court was granted. Frye II, 132 S.Ct. at 1399.

As noted, the United States Supreme Court vacated our opinion in Frye I.Id. at 1410–11. The Supreme Court agreed, as we had concluded, that the Sixth Amendment to the United States Constitution guaranteed Frye the effective assistance of counsel during plea negotiations. Id. at 1407–08. The Supreme Court also agreed, as we had concluded, that Frye established Strickland's performance prong, as trial counsel's failure to communicate a plea offer fell below the standard of reasonableness. Id. at 1410. However, the Supreme Court held that we erred “in articulating the precise standard of prejudice in this context.” Id. The Supreme Court held that we “failed ... to require Frye to show that the first plea offer, if accepted by Frye, would have been adhered to by the prosecution and accepted by the trial court.” Id. at 1411. In so holding, the Supreme Court refined the test for Strickland prejudice where ineffective assistance of counsel is claimed in connection with plea negotiations:

In order to complete a showing of Strickland prejudice, defendants who have shown a reasonable probability they would have accepted the earlier plea offer must also show that, if the prosecution had the discretion to cancel it or if the trial court had the discretion to refuse to accept it, there is a reasonable probability neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented.

Id. at 1410 (emphasis added).

As to the first component of this refined Strickland analysis, the Supreme Court agreed, as we had concluded, that:

There appears to be a reasonable probability Frye would have accepted the prosecutor's original offer of a plea bargain if the offer had been communicated to him, because he pleaded guilty to a more serious charge, with no promise of a sentencing recommendation from the prosecutor.⁵

Id. at 1411.

With respect to the balance of the refined Strickland analysis, the Supreme Court concluded that “[w]hether the prosecution and trial court [have the discretion to cancel or refuse to accept an earlier plea offer] is a matter of state law, and it is not the place of this Court to settle those matters.” Id. at 1410–11. The Supreme Court remanded Frye's case to this court to determine these state law questions. Id. at 1411. If no such discretion exists as a matter of Missouri law, then it follows that...