Shepard v. State
| Decision Date | 25 October 2022 |
| Docket Number | ED110167 |
| Parties | JACOB T. SHEPARD, Appellant, v. STATE OF MISSOURI, Respondent. |
| Court | Missouri Court of Appeals |
Appeal from the Circuit Court of Cape Girardeau County Cause No 21CG-CC00025, Honorable Scott A. Lipke Judge.
Jacob Shepard appeals from the circuit court's judgment denying his amended motion for postconviction relief under Rule 24.035 without an evidentiary hearing. Shepard argues that his attorney was ineffective for advising him to plead guilty even though he had a potential defense under the Good Samaritan Law, § 195.205, RSMo. Supp. 2021, because drugs he admittedly possessed were discovered only after he called authorities for medical assistance. Because Shepard's allegations are insufficient to state a claim for ineffective assistance of counsel and are refuted by the record, the circuit court did not clearly err in denying his motion without an evidentiary hearing.
The State charged Shepard by information with one count of possession of a controlled substance. The probable cause statement supporting the information stated that Shepard called 911 for help because he believed that he was being followed. When officers arrived, they saw Shepard exhibiting paranoid behavior that they believed to be drug related. Shepard consented to be searched and then began removing items from his pockets and placing them on the hood of a police cruiser. When Shepard removed a pack of cigarettes from his pocket, he threw it toward the road rather than placing it with the rest of his belongings. Officers retrieved the package and discovered methamphetamine inside.
A little over a year after his arrest, Shepard pleaded guilty in exchange for the State's agreement to recommend a five-year prison sentence. During the plea colloquy, the circuit court questioned Shepard about the voluntary nature of his plea. Shepard testified that no one had promised him anything, threatened him, forced him, or coerced him to plead guilty. He assured the court that he understood he did not have to plead guilty, that he was entitled to proceed to trial, and that by pleading guilty he was waiving his constitutional rights relating to trial. Shepard told the circuit court that he was satisfied with his counsel's performance and that there was nothing his attorney would not do that Shepard wanted done. Shepard agreed that he had no complaints at all about his attorney's services.
The court also questioned Shepard about a Petition to Enter Plea of Guilty that Shepard had signed and filed with the court prior to the plea. In the petition, Shepard agreed that he (1) had discussed the case with his attorney, (2) had told his attorney all of the facts and circumstances regarding the case, (3) committed the crime charged, and (4) was giving up a number of constitutional rights, including his right to present evidence and have a trial. He also agreed in the petition that his attorney had "done all that anyone could do to counsel and assist me" and that he was satisfied with the advice of his counsel. At the hearing, the circuit court confirmed that Shepard read and understood the plea petition before signing it.
The court then asked Shepard to explain what he did that made him guilty of the charged crime. Shepard testified that he was in a bar parking lot and "called 911 for emergency services" and that, when the police arrived, there was methamphetamine in his general area, but he initially denied that the drugs were his. When the circuit court questioned Shepard's attorney about the denial, his attorney stated The court then stated it was having trouble with the factual basis of the plea and asked if Shepard wanted to speak to his attorney. After a brief conversation off the record, Shepard admitted that the drugs the police discovered were his.
Next the court asked the prosecuting attorney to recite the facts the State would prove at trial. The prosecutor stated that the facts would be that "Shepard called the police because he believed people were following him." When they arrived on the scene, the police watched Shepard throw a package of cigarettes on the ground. Shortly thereafter, officers discovered methamphetamine in the cigarette package. Shepard agreed that the facts recited by the prosecutor sounded correct. The circuit court accepted Shepard's plea and sentenced him to the recommended five years in prison.
Shepard timely filed his pro se motion for postconviction relief under Rule 24.035. Appointed counsel filed an amended motion and request for an evidentiary hearing. In the amended motion, Shepard alleged that his attorney was ineffective for failing to properly advise Shepard that he was entitled to an immunity defense under § 195.205. Shepard also challenged the circuit court's authority to convict him. In support of these claims, Shepard alleged that he called 911 "for help" because he was "pouring sweat and his chest was hurting." When officers arrived on the scene, he told them he had used methamphetamine and asked them to call an ambulance. As requested, the officers called an ambulance, which transported Shepard to the hospital for treatment.
Shepard alleged that he told his attorney several times that he believed that "his case fell under the Good Samaritan Law." According to Shepard, his attorney responded simply by telling him that it did not matter because he "was definitely going to prison in this case." Shepard also alleged that his attorney should have requested tapes of his 911 call and video from the responding officers' body-worn cameras as part of his investigation, though Shepard did not allege what those recordings would have shown. Finally, Shepard alleged that if his attorney had informed him that he was entitled to a defense under § 195.205, Shepard would have requested that this attorney file a motion to dismiss and would not have pleaded guilty. He alleged that his attorney's conduct "affected the voluntariness and knowledge with which [his] plea was made."
The circuit court denied Shepard's Rule 24.035 motion without an evidentiary hearing. This appeal follows.
We review the denial of a Rule 24.035 motion for postconviction relief to determine whether the circuit court's findings and conclusions are clearly erroneous. Rule 24.035(k); Hefley v. State, 626 S.W.3d 244, 248 (Mo. banc 2021). Findings and conclusions are clearly erroneous if, after reviewing the entire record, there is a "definite and firm impression that a mistake has been made." Hefley, 626 S.W.3d at 248 (internal quotation marks and citation omitted).
Section 195.205 provides a defense from prosecution for certain drug-related offenses, including possession of a controlled substance, to anyone "who is experiencing a drug or alcohol overdose or other medical emergency who seeks medical assistance for himself or herself." Section 195.205.2. If the evidence of the crime is obtained as a result of the person seeking medical assistance, the statute provides that the person "shall not be arrested, charged, prosecuted convicted, or have his or her property subject to civil forfeiture[.]" Id. This Court recently held that § 195.205 is a defense to prosecution that the defendant bears the burden of pleading and proving. State v. Gill, 642 S.W.3d 356, 361 (Mo. App. E.D. 2022).
Generally, Shepard argues that his attorney failed to advise him that he was entitled to a defense under § 195.205. Shepard claims that he would not have pleaded guilty had he been aware that this defense applied to him. More specifically, Shepard alleges that his attorney was ineffective in three ways: for not filing a motion to dismiss under § 195.205 (Point I), for not further investigating that defense (Point II), and for advising him to plead guilty without further investigating the defense (Point III). Shepard also argues that the circuit court lacked authority to enter a conviction because Shepard was immune from prosecution under § 195.205 (Point IV).
We start with Shepard's claims of ineffective assistance of counsel. "To state a claim for ineffective assistance of counsel, the movant must allege facts demonstrating: (1) that counsel's performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney, and (2) that counsel's deficient performance actually prejudiced the movant." McLemore v. State, 635 S.W.3d 554, 559 (Mo. banc 2021) (internal quotation marks and citations omitted). "Prejudice exists where the movant shows that, but for counsel's ineffective assistance, he would not have pleaded guilty and would have insisted on taking his case to trial." Starks v. State, 636 S.W.3d 615, 620 (Mo. App. E.D. 2021).
To be entitled to an evidentiary hearing on a postconviction motion, the movant must allege: (1) facts, not conclusions, warranting relief; (2) that are not refuted by the record; and (3) that result in prejudice to the movant. Stanley v. State, 420 S.W.3d 532, 544 (Mo. banc 2014). A hearing is not required when the motion, files, and record conclusively show the movant is not entitled to relief. Id.; Rule 24.035(h).
After a negotiated guilty plea, a claim of ineffective assistance of counsel is irrelevant except to the extent it affects the voluntariness and understanding with which the guilty plea was made. Roberts v. State, 276 S.W.3d 833, 836 (Mo banc 2009). A guilty plea waives all claims of ineffective assistance that do not involve the voluntariness and understanding of the plea. Meadors v. State, 571...
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