Parsons v. State
| Decision Date | 14 May 2019 |
| Docket Number | No. ED 106367,ED 106367 |
| Citation | 574 S.W.3d 810 |
| Parties | Gerald PARSONS, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
FOR APPELLANT, Richard H. Sindel, 8000 Maryland, Suite 910, Clayton, Missouri 63105.
FOR RESPONDENT, Eric Schmitt, Daniel N. McPhearson, 221 West High Street, P.O. Box 899, Jefferson City, Missouri 65102.
James M. Dowd, Judge This post-conviction-relief case arose out of an incident in which Gerald Parsons, while intoxicated, crashed his vehicle into a stationary police vehicle injuring the officer inside. Parsons was charged with driving while intoxicated (DWI) and second-degree assault of a law enforcement officer, both class B felonies which carried punishment ranges of five to 15 years in prison. After plea negotiations failed, Parsons entered blind guilty pleas to both charges and received concurrent sentences of 12 years on each conviction. Later, it was determined that the DWI charge was an included offense of the assault charge and, therefore, the guilty plea on the DWI charge violated Parsons’s constitutional right against double jeopardy. Parsons was permitted to withdraw his guilty plea to the DWI charge and that charge was dismissed, but his guilty plea and 12-year sentence on the assault charge remained in place.
Parsons now appeals the denial following an evidentiary hearing of his Rule 24.0351 motion for post-conviction relief based on allegations of ineffective assistance of counsel. He contends that the motion court clearly erred when it found he was not prejudiced by his counsel’s failure to recognize the double jeopardy situation presented by the two charges and counsel’s advice that he plead guilty to both charges.
We find that the motion court clearly erred when it found that Parsons was not prejudiced by counsel’s error. Therefore, we reverse and remand.
Background
Under § 558.011.1(2)2 , second-degree assault of a law enforcement officer and driving while intoxicated each carry a sentence range of between five and 15 years in prison. During the plea bargain negotiations in this case, the State offered to recommend sentences of 11 years on each charge in exchange for Parsons’s guilty pleas.3 Parsons rejected the offer. Then, on February 25, 2016, he entered blind guilty pleas to the two charges.4 On April 20, 2016, the court accepted his pleas and sentenced him to 12 years on each conviction and ordered the sentences to run concurrently.
Parsons’s counsel then discovered that the DWI charge was an included offense since driving while intoxicated was one of the elements of the assault charge. As a result, the guilty pleas and convictions subjected Parsons to multiple punishments for the same offense in violation of his constitutional right to be free from double jeopardy, which Parsons never waived.5 The plea court and the State were also apparently unaware of this defect in the plea negotiations and the court’s sentences.
On May 5, 2016, counsel filed a motion to withdraw Parsons’s guilty plea to the DWI charge to which the State consented and on May 19, 2016, the court set aside that guilty plea. The State also filed a nolle prosequi as to the DWI charge.
Parsons’s counsel did not advise him that he should seek also to withdraw his guilty plea to the assault charge. In fact, counsel stated at the evidentiary hearing that after realizing his error with respect to the double jeopardy issue, he told Parsons it was best not to seek re-sentencing on the assault charge because he feared that if Parsons requested a lesser sentence, the plea court might be inclined to give him a greater one.
Parsons then filed his Rule 24.035 motion seeking relief from the assault conviction and its 12-year prison sentence. He asserted multiple claims of prejudicial ineffective assistance of counsel,6 including that counsel’s erroneous advice caused him to plead guilty to the assault charge unknowingly and involuntarily and that had counsel correctly advised him that he legally faced only the assault charge and its 15-year maximum sentence—not both the assault charge and the DWI charge with its additional 15 years—he would have gone to trial.
At the evidentiary hearing, Parsons testified that at the time he entered his blind guilty pleas, he believed he "did not really have any options" except to plead guilty, because he thought he could be sentenced up to a maximum of 30 years in prison. Plea counsel testified that before he discovered his error, he advised Parsons that he had a "very difficult case" for trial; that consecutive sentences were "a possibility"; and that, therefore, he could face up to 30 years on the charges.7 Parsons testified, however, that had he known he faced only the assault charge and its 15-year maximum sentence, he would not have pleaded guilty and would have insisted on going to trial.
The motion court—notably, the same judge as in the plea court—found that Parsons’s counsel was "deficient in failing to object to the imposition of sentence on both charges." But the motion court found that Parsons was not prejudiced by counsel’s error because the plea court set aside Parsons’s DWI guilty plea and conviction. The motion court also found that Parsons’s remaining guilty plea, to the second-degree assault charge, was entered knowingly and voluntarily, despite the fact that Parsons had entered it based on misinformation about the double jeopardy consequences and thus as a result of a fundamentally-flawed plea bargaining process.
This appeal follows.
Standard of Review
We review the denial of a Rule 24.035 motion for post-conviction relief only to determine whether the motion court’s findings and conclusions are clearly erroneous. Rule 24.035(k); Dorsey v. State , 448 S.W.3d 276, 282 (Mo.banc 2014). 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. Swallow v. State , 398 S.W.3d 1, 3 (Mo.banc 2013). We presume that the motion court’s findings are correct. Chaney v. State, 323 S.W.3d 836, 841 (Mo.App.E.D. 2010).
Parsons’s burden of proof is established by Strickland’s two-prong test for determining ineffective-assistance-of-counsel claims in post-conviction-relief cases. Johnson v. State, 406 S.W.3d 892, 898 (Mo.banc 2013) (citing 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 898-99.
There is extensive jurisprudence, specific to the guilty plea context, addressing the movant’s burden of proof with respect to the prejudice prong of the Strickland test. See, e.g., Lee v. United States, ––– U.S. ––––, 137 S.Ct. 1958, 1965, 198 L.Ed.2d 476 (2017) ; Missouri v. Frye, 566 U.S. 134, 147, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) ; Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ; Webb v. State, 334 S.W.3d 126, 128 (Mo.banc 2011) ; Dobbins v. State, 187 S.W.3d 865, 867 (Mo.banc 2006). In Lee, the Supreme Court of the United States recited the standard we find to be applicable in this case: "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." 137 S.Ct. at 1965 (citing Hill, 474 U.S. at 59, 106 S.Ct. 366 ).
The Court in Lee drew an important distinction between ineffective assistance that occurs during a trial and ineffective assistance that occurs during plea negotiations. Id. at 1964-5. 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. Id. at 1964 (citing Roe v. Flores-Ortega, 528 U.S. 470, 481, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) ). 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." Flores-Ortega , 528 U.S. at 482, 120 S.Ct. 1029 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052 ) (internal quotation marks omitted).
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." Lee, 137 S.Ct. at 1965 (quoting Flores-Ortega, 528 U.S. at 483, 120 S.Ct. 1029 ) (emphasis added). 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. Id. 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." Id. (quoting Flores-Ortega , 528 U.S. at 482—483, 120 S.Ct. 1029 ) (internal quotation marks omitted). We instead consider whether the defendant was prejudiced by the "denial of the entire judicial proceeding ... to which he had a right. " Id. (citing Flores-Ortega , 528 U.S. at 483, 120...
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