Neal v. State
| Decision Date | 31 July 2012 |
| Docket Number | WD73588 |
| Parties | ARYAN D. NEAL, Appellant, v. STATE OF MISSOURI, Respondent. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Jackson County, Missouri
Before Division Three: Victor C. Howard, Presiding Judge, Karen K. Mitchell, Judge
and Cynthia L. Martin, Judge
Aryan Neal ("Neal") appeals from the denial of his Rule 24.035 motion after an evidentiary hearing. First, Neal contends that he was denied effective assistance of counsel because trial counsel had a conflict of interest and acted contrary to Neal's interests in connection with Neal's motion to withdraw his guilty pleas. Neal claims that had trial counsel not acted contrary to his interests, there is a reasonable probability that the trial court would have permitted the withdrawal of his guilty pleas and he would have exercised his right to a jury trial. Second, Neal claims that his guilty pleas were notknowing and voluntary because they were made in reliance on trial counsel's affirmative misrepresentation that a key witness positively identified Neal. Neal claims that had he known that the witness did not positively identify him, he would not have pled guilty and would have exercised his right to a jury trial. We affirm.
This appeal arises from Neal's pleas of guilty to multiple criminal charges arising out of three separate criminal escapades.
In 16CR03001082, ("the First case"), Neal was charged as a prior and persistent offender with one count of the class A felony of murder in the first degree, one count of the class A felony of murder in the second degree, one count of the class A felony of assault in the first degree, and three counts of the unclassified felony of armed criminal action in connection with criminal conduct that occurred on or about January 9, 2002.
In 16CR04002413, ("the Second case"), Neal was charged with one count of the class A felony of murder in the second degree and one count of the unclassified felony of armed criminal action in connection with criminal conduct that occurred on or about January 16, 2002.
In 0616-CR00872, ("the Third case"), Neal was charged with one count of the class A felony of assault in the first degree and one count of the unclassified felony of armed criminal action in connection with criminal conduct that occurred on or about September 11, 2005 while Neal was in the Jackson County jail.
As will become apparent, only the facts relating to the First case are implicated by this appeal. In summary fashion, on January 9, 2002, Neal acted in concert with BrianLittle ("Little"), Richard Johnson ("Johnson"), and Fernando Fernandez ("Fernandez"), in planning the robbery of two men and a woman (collectively, "the Victims") who intended to purchase twenty pounds of marijuana for $10,000. During the robbery, there was a shooting which resulted in the death of the two men and injury to the woman. Neal participated in the shooting using a twelve-gauge shotgun. One of the two men killed during the robbery died from shotgun wounds.
On April 3, 2006, Neal entered guilty pleas in all three cases pursuant to a collective plea agreement. The State agreed to amend the charge of murder in the first degree to murder in the second degree in the First case. In the Third case, the State agreed to amend the charge of assault in the first degree from an A felony to a B felony, to recommend a sentence of ten years on the assault charge, and to recommend a sentence of three years on the armed criminal action charge. The State did not agree to amend the charges in the Second case. Except as noted, the State required an open plea on all charges, but agreed that all sentences would run concurrently.
In entering his guilty pleas Neal testified that he understood all the charges pending against him; that he was pleading guilty pursuant to the plea agreement; that he understood the terms of the plea agreement; that he understood that he was facing a possible life sentence on the murder in the second degree counts; that he understood the range of punishment for all of the charges; that he had no complaints with respect to the representation of his trial counsel; and to the factual basis for all of the charges.
On July 7, 2006, Neal appeared for a sentencing hearing. At that time, Neal made a pro se request to withdraw his guilty pleas and to proceed to trial. Neal said he wishedto withdraw his guilty pleas because he did not know he was facing a possible life sentence. The trial court asked Neal whether this was the only reason he wanted to withdraw his pleas. Neal answered in the affirmative. The trial court denied Neal's request, as it was facially negated by the record taken at the guilty plea hearing. The trial court proceeded with the sentencing hearing, taking testimony from the State's witnesses. The trial court agreed to hear testimony from Neal's witnesses on August 10, 2006.
On July 17, 2006, Neal submitted a handwritten motion1 renewing his request to withdraw his guilty pleas. Neal abandoned his claim that he had not been advised that he faced a life sentence, and now claimed that he should be permitted to withdraw all of his guilty pleas because (1) trial counsel told him that he took depositions of the co-defendants in the First case when the depositions were taken by a different attorney in the case pending against co-defendant Dominick Clarkson ("Clarkson")2; (2) trial counsel informed Neal that he had been positively identified in the deposition of co-defendant Johnson as the shooter in the First case, when (according to Neal) Johnson did not so testify; and (3) that he had not received discovery on the Second case.
Neal was examined by the court about his allegations. Neal was then cross-examined by the State. At the conclusion of the State's cross-examination, Neal's trial counsel, Willis Toney ("Toney") inquired of Neal. Toney commenced his examination of Neal as follows:
Thereafter, Neal acknowledged that co-defendant depositions taken in Clarkson's case would have involved discussion of the same events for which Neal had been charged. Neal acknowledged that Toney had read portions of Johnson's deposition to him in advance of his guilty pleas. Specifically, Neal acknowledged that Toney read the portions of the deposition where Johnson identified a person named "Dex" as the shooter in the First case. Neal agreed that Johnson testified that he understood "Dex" to be the street name for Aryan Neal.3 Neal also agreed that Toney informed him that Johnson had agreed to testify against Neal pursuant to a plea agreement. Notwithstanding, Neal maintained that Johnson did not "positively" identify him because there was no paperwork demonstrating that Johnson had pointed Neal out in a lineup. After Neal finished testifying, Toney tried to call Neal's mother as a witness, but she refused to cooperate and would not take the stand.
The State then called Toney to testify. At the conclusion of the State's direct examination, Toney was cross-examined by Neal. Toney testified that he had advised Neal that the only way the State would agree to reduce his first degree murder charge in the First case to a second degree murder charge was if Neal pled guilty in all three of the cases pending against him. Neal asked "Do you think that was a very intelligent plea?" Toney responded "I think it was a very smart plea because I think the evidence against you on the [First case] is overwhelming, and if you go to trial on it you are going to getlife without parole."4 Toney also testified that he does not leave copies of depositions with his incarcerated clients to protect his clients from having other inmates use information against his clients. Neal questioned Toney about the disposition of the charges against his co-defendants, suggesting Neal believed his co-defendants had not been treated as harshly as his plea agreement would require.
The trial court found:
The trial court sentenced Neal in the First case to life on both second degree murder counts, and fifteen years on each of the other counts. In the Second case, Neal was sentenced to life on the second degree murder count and fifteen years on the armed criminal action count. In the Third case, Neal was sentenced to fifteen years on theassault charge and three years on the armed criminal action charge.5 All sentences were ordered to run concurrently.
Neal timely filed a pro se Rule 24.035 motion. Post-conviction counsel filed an amended motion. Thereafter, Neal filed a pro se motion asserting additional claims that post-conviction counsel failed to include in the amended motion. Post-conviction counsel filed a motion conceding abandonment because the amended motion failed to include all of Neal's pro se claims. The motion court ordered a revised amended motion to be filed within fourteen days. Post-conv...
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