Napper v. State

• Docket Number: ED111129
• Decision Date: 28 November 2023
• Parties: CHARLES NAPPER, JR., Appellant, v. STATE OF MISSOURI, Respondent.
• Court: Missouri Court of Appeals

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CHARLES NAPPER, JR., Appellant,
v.
STATE OF MISSOURI, Respondent.

No. ED111129

Court of Appeals of Missouri, Eastern District, First Division

November 28, 2023

Appeal from the Circuit Court of the City of St. Louis Honorable Mark H. Neill

Philip M. Hess, Judge

Introduction

Charles Napper, Jr. ("Movant") appeals the motion court's judgment after it overruled his amended Rule 24.035 post-conviction relief motion following an evidentiary hearing.^[1] In his sole point on appeal, Movant alleges the motion court clearly erred in overruling his amended motion because the circuit court erred in denying his motion to withdraw plea counsel ("Counsel") from representing him due to a conflict of interest. Movant claims Counsel's representation created an actual conflict warranting her disqualification because Counsel was employed by the City of St. Louis Circuit Attorney's Office ("CAO") when he was charged with first-degree murder and armed criminal action, but Counsel represented him on those same charges after Counsel left the CAO and began working for the Missouri State Public Defender System ("MSPD"). Because

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Counsel did not have an actual conflict of interest, the motion court did not err in overruling Movant's claim. Point I is denied. The circuit court's judgment is affirmed.

Factual and Procedural History

In 2009, Counsel was employed as an assistant circuit attorney with the CAO. In June 2016, Movant was indicted on one count of first-degree murder and one count of armed criminal action for shooting a man inside a market in the City of St. Louis. Assistant Circuit Attorney R.G. entered her appearance on the State's behalf. Movant was represented by a public defender.

Counsel's employment with the CAO ended on May 4, 2017, because she refused to charge a case she believed was unsupported by the evidence. Counsel began working for the MSPD on June 16, 2017. Counsel was assigned Movant's case shortly after joining the MSPD. Counsel reviewed the assignment for conflicts because Movant's prosecution was initiated while she was employed with the CAO. Counsel's review included determining whether she had any knowledge of the facts, if she participated in any way, or heard conversations about the case. Counsel reviewed the discovery and Case.Net entries to determine if she filed any pleading or performed any work on Movant's case while employed with the CAO. Counsel did not recall ever speaking to R.G. or any other CAO employee about Movant's case and disavowed participating in any aspect of Movant's case while employed with the CAO. Counsel entered her appearance on Movant's behalf on June 20, 2017.

During an initial meeting between Counsel and Movant, Counsel disclosed to him she was a former assistant circuit attorney and discussed the circumstances surrounding her move to the MSPD. Counsel reviewed the State's discovery with Movant and spoke to him about possible

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defenses they could present, including self-defense and lesser-included offenses. Counsel met with Movant at least six times or more to prepare for trial.

In January 2018, Movant's trial commenced. Assistant Circuit Attorneys R.G. and R.S. represented the State. After a jury was selected, Counsel informed the circuit court Movant requested she withdraw her representation and sought a continuance to hire a private attorney. The circuit court asked Counsel whether any conflicts of interest developed in her professional relationship with Movant, to which Counsel replied, "I do not believe so, no." The circuit court asked Counsel if there were any ethical considerations she felt would bar her from representing Movant, to which Counsel responded, "I don't believe so." The circuit court also questioned Movant, who stated he did not feel Counsel was well prepared for trial because he did not have a pretrial hearing and no witnesses were deposed. Regarding the conflict of interest, Movant stated, "I don't know if she tried murder cases on the defense side, but I do . . . understand she was a prosecutor, and I think . . . it would be better that I had a defense attorney who is experienced on the defense side more." Movant pointed out most of Counsel's trial experience was as a prosecutor. Movant expressed his concern about Counsel having "a personal vendetta" against the CAO because of how her employment ended. The circuit court found Counsel did not have a conflict of interest and overruled Movant's request to continue the trial to hire a private attorney.

Later that day, Movant agreed to plead guilty to second-degree murder and armed criminal action. When the circuit court undertook its plea colloquy, Movant initially indicated he had enough time to speak to Counsel, but later stated he did not have sufficient time given his request for a continuance to hire a private attorney. Movant denied Counsel made any threats or promises to induce him to plead guilty. When asked if he was pleading guilty voluntarily, Movant stated, "I'm pleading guilty because I think it's the best I can do right now." The circuit court sentenced

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Movant to twenty-five years' imprisonment on both counts, to run concurrently. During the sentencing hearing, Movant stated he had no complaints about Counsel's representation. When asked if he had anything else he wished to tell the circuit court about Counsel's representation, Movant said, "No."

On May 25, 2018, Movant timely filed his pro se Rule 24.035 motion for post-conviction relief. The motion court appointed counsel who filed a timely amended motion, raising one claim alleging the circuit court abused its discretion in overruling Movant's request to withdraw counsel because Counsel's representation created an actual conflict of interest warranting disqualification, despite her disavowal of any actual impropriety or knowledge of Movant's case during her CAO employment. In the same claim, Movant argued Counsel was ineffective because her representation created an actual conflict of interest adversely affecting her performance and resulted in Counsel coercing Movant into pleading guilty due to him losing confidence in Counsel's ability to provide competent representation. The motion court granted Movant an evidentiary hearing on this claim.

Movant and Counsel testified at the evidentiary hearing.^[2] After the evidentiary hearing, the motion court issued its findings of fact, conclusions of law, and judgment overruling Movant's amended motion. The motion court found Counsel had no conflict of interest, and therefore, did not render ineffective assistance of counsel. Movant appeals.

Standard of Review

This Court's review of a Rule 24.035 post-conviction relief motion is "limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous."

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Rule 24.035(k). "A motion court's findings are presumed correct, and we will overturn the ruling only if we are left with a definite and firm impression that a mistake has been made." James v. State, 462 S.W.3d 891, 893 (Mo. App. E.D. 2015) (quoting Nichols v. State, 409 S.W.3d 566, 569 (Mo. App. E.D. 2013)). Movant must prove claims "by a preponderance of the evidence." Rule 24.035(i). Ordinarily, when raising an ineffective assistance of counsel claim, the movant must allege facts, not refuted by the record, showing "counsel's performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney," resulting in prejudice to the movant. Jackson v. State, 660 S.W.3d 679, 682 (Mo. App. E.D. 2023) (quoting Matthews v. State, 175 S.W.3d 110, 113 (Mo. banc 2005)); see also Stricklandv. Washington, 466 U.S. 668, 687 (1984).

Discussion

Point I: Conflict of Interest Party Positions

In his sole point on appeal, Movant alleges the motion court clearly erred in overruling his amended motion because he demonstrated by a preponderance of evidence the circuit court erred in denying his motion to withdraw Counsel's representation due to an actual conflict of interest. Movant contends he raised the actual conflict with the circuit court in his motion to withdraw Counsel's representation, hence he did not waive the conflict. Movant concedes Counsel's disavowal of any actual impropriety or knowledge of his case while employed at the CAO "arguably [may] have fended off any subsequent allegations that her representation violated Missouri's Rules of Professional Conduct." Yet, Movant argues Counsel's representation garnered an appearance of impropriety and doubt in the fairness of the proceedings warranting reversal of the motion court's judgment.

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The State argues the motion court's judgment should be affirmed for three reasons. First, the State alleges Movant is asserting a non-cognizable claim of circuit court error in a postconviction proceeding. Second, the State argues Movant waived this claim by subsequently entering a guilty plea and allowing Counsel to represent him for months after being informed of the potential conflict. Third, the State contends Counsel had no actual conflict of interest...