Larry E. Johnson v. State of Missouri , 2014 Mo. App. LEXIS 1298 ( 2014 )

In the
Missouri Court of Appeals
Western District

LARRY E. JOHNSON, 
 WD76872
Appellant,  OPINION FILED:
v. 
 November 18, 2014
STATE OF MISSOURI, 

Respondent. 


Appeal from the Circuit Court of Buchanan County, Missouri
The Honorable Patrick K. Robb, Judge
Before Division Four: Alok Ahuja, C.J. Presiding, James Edward Welsh, and Gary D. Witt, JJ.
Larry E. Johnson appeals the circuit court's judgment denying his Rule 24.035 motion for
post-conviction relief after an evidentiary hearing. Johnson pleaded guilty to the class B felony
of driving while intoxicated. In this appeal, Johnson contends that his plea counsel was
ineffective for failing to inform him that he would be subject to a 40 percent mandatory
minimum prison term before becoming eligible for parole. Johnson claims that, but for counsel's
failure to advise him of the 40 percent mandatory minimum, he would not have pleaded guilty
but would have insisted on his constitutional right to a trial. We affirm the circuit court's
judgment.
The state charged Johnson with driving while intoxicated as a chronic offender.1 On
January 11, 2012,2 Johnson pleaded guilty to the class B felony of driving while intoxicated and
acknowledged that he had seven prior intoxicated-related traffic offenses. At the plea hearing,
Johnson assured the court that he understood the guilty plea petition, that he understood that he
was pleading guilty to the class B felony of driving while intoxicated, and that he understood the
rights he was giving up by pleading guilty. Johnson acknowledged that the range of punishment
for the offense was a minimum of five years in the Missouri Department of Corrections up to a
maximum of 15 years in the Missouri Department of Corrections. Johnson further assured the
court that he understood that he could receive up to 15 years in the Department of Corrections
with no probation. Johnson agreed that no one had made any promises to get him to plead guilty.
In asking about any promises, the court inquired of Johnson:
[THE COURT]: Has [your attorney] promised you or assured you that if
you pled guilty to this charge you would receive probation or a particular
sentence?
[JOHNSON]: No, sir.
[THE COURT]: Has anybody promised you that if you pled guilty to the
charge you would receive probation or a particular sentence?
[JOHNSON]: No, sir.
[THE COURT]: Has [your attorney] or anybody else assured you that if
you received a sentence of incarceration in the Department of Corrections that
you would be released after serving a certain portion of that sentence?
1
"A 'chronic offender' is: . . . . A person who has pleaded guilty to or has been found guilty of four or more
intoxication-related traffic offenses[.] § 577.023.1(2)(a), RSMo Cum. Supp. 2013. Any person who pleads guilty to
or is found guilty of driving while intoxicated pursuant to section 577.010, RSMo Cum. Supp. 2013, "who is
alleged and proved to be a chronic offender shall be guilty of a class B felony." § 577.023.5, RSMo Cum. Supp.
2013.
2
Johnson attempted to plead guilty on January 6, 2012, but the circuit court rejected his plea due to
Johnson's denial of his previous convictions.
2
[JOHNSON]: No, sir.
[THE COURT]: Has [your attorney] or anybody else made any promises
or representations to you that you would be released on parole after serving a
certain portion of any sentence you might receive?
[JOHNSON]: No, sir.
[THE COURT]: Has [your attorney] or anybody else made any promises
or representation to you that you would be eligible for parole after serving a
certain portion of your sentence?
[JOHNSON]: No, sir.
Johnson also assured the court that he was satisfied with the representation provided to him by
his attorney and that there was nothing more that he wanted his attorney to do. Johnson admitted
that, on May 12, 2011, he was operating a motor vehicle on US 169 Highway in Buchanan
County while under the influence of alcohol and that his blood alcohol content was .17 percent.
The circuit court accepted Johnson's guilty plea and sentenced Johnson to six years in the
Missouri Department of Corrections.
Johnson timely filed a pro se motion for post-conviction relief. Thereafter, counsel was
appointed, and counsel filed an amended motion for post-conviction relief. In the amended
motion, Johnson alleged that his plea counsel was ineffective in failing to inform him that he
would be subject to a 40 percent mandatory minimum sentence. Johnson further alleged that he
was prejudiced by counsel's ineffectiveness because, had he known he would be subjected to a
mandatory minimum of 40 percent of his sentence, he would not have pled guilty but would have
insisted on his right to a jury trial. The circuit court held an evidentiary hearing, and the circuit
court received into evidence the telephonic deposition of Johnson, which represented the
testimony that Johnson would have provided at the evidentiary hearing. Johnson testified that,
prior to pleading guilty, his plea counsel never told him that he would be required by statute to
3
serve a mandatory minimum of 40 percent of any sentence. The circuit court denied Johnson's
motion for post-conviction relief. Johnson appeals.
Our review of the circuit court's ruling on a Rule 24.035 motion is limited to determining
whether its findings and conclusions are clearly erroneous. Rule 24.035(k). Findings and
conclusions are clearly erroneous only if we have a definite and firm impression that a mistake
was made. Dobbins v. State, 187 S.W.3d 865, 866 (Mo. banc 2006). By pleading guilty, Johnson
"waived any claim that counsel was ineffective except to the extent that the conduct affected the
voluntariness and knowledge with which the plea was made." Worthington v. State, 166 S.W.3d
566, 573 (Mo. banc 2005).
To succeed on his claim of ineffective assistance of counsel, Johnson must demonstrate:
"(1) that counsel‟s performance did not conform to the degree of skill, care and diligence of a
reasonably competent attorney; and (2) that [Johnson] was thereby prejudiced." Haskett v. State,
152 S.W.3d 906, 909 (Mo. App. 2005). If Johnson fails to show either ineffective assistance or
prejudice, we do not consider the other. Id.
Johnson claims that his plea counsel rendered ineffective assistance of counsel by failing
to inform him of "a significant and automatic consequence of pleading guilty--that he would be
required to serve almost half of any sentence before . . . becoming eligible for parole." In
support of his contention, Johnson relies on case law that states that a defendant must be
informed of all direct consequences of a guilty plea. Reynolds v. State, 994 S.W.2d 944, 946
(Mo. banc 1999). "Direct consequences are set forth in [Rule] 24.02(b) and include the nature of
the charges, the maximum possible and mandatory minimum penalties, the right to be
represented by an attorney, the right not to plead guilty, and the defendant's waiver of all trial
rights if he pleads guilty." State v. Rasheed, 340 S.W.3d 280, 284 (Mo. App. 2011) (citing Rule
4
24.02(b)(1)-(4)). "[D]irect consequences are ones that 'definitely, immediately, and largely
automatically' follow the entry of a plea of guilty." Id. (citation omitted). A voluntary and
intelligent plea "means . . . . that the defendant must enter the plea with knowledge of the direct
consequences of the plea." Reynolds, 994 S.W.2d at 946. Although it is necessary to inform a
defendant of all direct consequences of a guilty plea, plea counsel is not required to inform a
defendant of collateral consequence. Id. Johnson contends that the 40 percent mandatory
minimum sentence an inmate must serve before becoming eligible for release on parole under
section 558.019.2(1)3 meets the legal test for a "direct consequence" of a guilty plea.
"Missouri courts," however, "have consistently held that counsel has no obligation to
inform a defendant of the parole consequences of his guilty plea." Simmons v. State, 432 S.W.3d
306, 308 (Mo. App. 2014) (citing Reynolds, 994 S.W.2d at 946; Johnson v. State, 398 S.W.3d
513, 516-17 (Mo. App. 2013); Smith v. State, 353 S.W.3d 1, 3-4 (Mo. App. 2011); Bryant v.
State, 316 S.W.3d 503, 510 (Mo. App. 2010)). "[P]arole eligibility is considered to be a
'collateral consequence' of a plea, about which counsel has no obligation to inform the
defendant." Simmons, 432 S.W.3d at 308 (citing Reynolds, 994 S.W.2d at 946). "Because it is
considered a collateral consequence, matters relating to parole eligibility do not affect the
3
Section 558.019.2, RSMo Cum. Supp. 2013, provides in part:
Other provisions of the law to the contrary notwithstanding, any offender who has pleaded guilty
to or has been found guilty of a felony other than a dangerous felony as defined in section 556.061
and is committed to the department of corrections shall be required to serve the following
minimum prison terms:
(1) If the offender has one previous prison commitment to the department of corrections
for a felony offense, the minimum prison term which the offender must serve shall be forty
percent of his or her sentence or until the offender attains seventy years of age, and has served at
least thirty percent of the sentence imposed, whichever occurs first[.]
5
voluntariness of a guilty plea." Simmons, 432 S.W.3d at 308 (citing Reynolds, 994 S.W.2d at
946).
Johnson acknowledges that Missouri precedent does not require plea counsel to inform a
defendant about the parole consequences of a guilty plea, but Johnson urges us to re-examine this
precedent because he argues that the precedent "comes from a time when there were few, if any,
statutory mandatory minimum sentences." As noted above, as recently as this year, Missouri
courts have held that counsel is not required to inform the defendant about the parole
consequences of his guilty plea, even though the parole guidelines appear to be an immediate and
largely automatic consequence of pleading guilty. Simmons, 432 S.W.3d at 308. See also
Johnson, 398 S.W.3d at 516-17, and Smith, 353 S.W.3d at 3-4.
Johnson further contends that the United States Supreme Court has expanded the duty of
counsel to inform a defendant about the consequences of a guilty plea in Padilla v. Kentucky, 559
U.S. 356 (2010). In Padilla, the United States Supreme Court held that plea counsel has an
affirmative duty to inform a defendant about the deportation consequences of his guilty plea
when the immigration consequences are clear. Id. at 369. Recent Missouri cases, however, have
"declined to expand Padilla's reasoning beyond the deportation context into parole matters."
Simmons, 432 S.W.3d at 310 (citing Webb v. State, 334 S.W.3d 126, 128-29 (Mo. banc 2011);4
4
A year after Padilla was decided, the Missouri Supreme Court revisited the distinction between direct and
collateral consequences resulting from a guilty plea in Webb v. State, 334 S.W.3d 126 (2011). In Webb, the
defendant alleged in his Rule 24.035 motion that his plea counsel erroneously advised him that he would not be
subject to the law requiring him to serve 85 percent of his sentence before becoming eligible for parole but that he
would be required to serve 40 percent of his sentence without parole eligibility. Id. at 128. The Webb court held
that "where counsel misinforms the client as to the effects of the client's plea, the counsel has rendered ineffective
representation." Id. at 127. The Webb court, therefore, found that the defendant was entitled to an evidentiary
hearing to establish whether he was prejudiced by his plea counsel's erroneous advice. Id. at 131. In recognizing a
distinction between the failure to inform a defendant about the consequences of a plea and misinforming a defendant
about the consequences of a plea, "the Webb court did not overturn existing case law holding that parole eligibility is
a collateral matter that does not affect the voluntariness of a guilty plea." Simmons, 432 S.W.3d at 309 (citing
Smith, 353 S.W.3d at 5). We note that in his amended motion Johnson alleged that his plea counsel misinformed
6
Johnson, 398 S.W.3d at 518; and Smith, 353 S.W.3d at 5.); see also Burgess v. State, 2014 WL
707158 (Mo. App. 2014). These recent Missouri cases have also continued to hold that, "[u]nder
existing case law, counsel has no obligation to advise a criminal defendant about the parole
consequences of his guilty plea." Simmons, 432 S.W.3d at 310 (citing Reynolds, 994 S.W.2d at
946, and Johnson, 398 S.W.3d at 518); see also Smith v. State, 353 S.W.3d at 4.
Johnson's counsel was not ineffective for failing to advise Johnson that he would be
subject to a 40 percent mandatory minimum prison term before becoming eligible for parole and
the failure to do so did not render Johnson's guilty plea unknowing or involuntary. The circuit
court, therefore, did not clearly err in denying Johnson's Rule 24.035 motion for post-conviction
relief. We affirm the circuit court's judgment.
/s/ JAMES EDWARD WELSH
James Edward Welsh, Judge
Gary Witt, Judge, concurs.
Alok Ahuja, Chief Judge Presiding, writes a separate concurring opinion.
him that he would be required to serve a maximum of 15 percent of his sentence before becoming eligible for parole
and that his plea counsel failed to inform him that he would be required to serve a mandatory minimum of 40
percent of his sentence. The circuit court found that Johnson's testimony at the evidentiary hearing was not credible
and found that it was directly refuted by his own testimony at the plea hearings and sentencing hearing. On appeal,
Johnson does not contend that his plea counsel misinformed him about the consequences of his plea. His only
contention is that plea counsel failed to inform him that he would be subject to a 40 percent mandatory minimum
prison term before becoming eligible for parole.
7
IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
LARRY E. JOHNSON, )
Appellant, )
)
v. ) WD76872
)
STATE OF MISSOURI, ) FILED: November 18, 2014
Respondent. )
CONCURRING OPINION
I concur in Judge Welsh‟s opinion for the Court. Johnson claims that his attorney was
ineffective, and that his guilty plea was involuntary, because counsel failed to advise him of the
mandatory minimum prison term he would be required to serve before being eligible for parole
pursuant to § 558.019.2(1), RSMo. His claim is directly contrary to the Missouri Supreme
Court‟s decision in Reynolds v. State, 994 S.W.2d 944 (Mo. banc 1999), which held that neither
the plea court, nor plea counsel, was constitutionally obligated to inform a defendant of the
mandatory minimum prison term required by § 558.019.2(3), RSMo 1994 – a minimum-term
provision which is functionally identical to § 558.019.2(1). Id. at 946-47.
Article V, § 2 of the Missouri Constitution provides that the Missouri Supreme Court‟s
“decisions shall be controlling in all other courts.” Thus, until Reynolds‟ holding on this federal
constitutional issue is overruled by the Supreme Court of the United States or by the Missouri
Supreme Court, it is binding on this Court.
Johnson argues, with some force, that the United States Supreme Court‟s decision in
Padilla v. Kentucky, 559 U.S. 356 (2010), requires re-examination of prior Missouri decisions
holding that plea counsel is not constitutionally required to advise a defendant that he or she will
be required to serve a minimum term before becoming eligible for parole. Padilla‟s
interpretation of plea counsel‟s minimum obligations under the Sixth Amendment to the United
States Constitution is undoubtedly relevant to Reynolds‟ continued validity. Padilla does not
directly address, however, the issue presented here and in Reynolds: whether plea counsel is
constitutionally ineffective where counsel fails to inform a defendant of the parole consequences
of a guilty plea. Instead, Padilla involves the “unique” sanction of deportation as a result of a
guilty plea, id. at 365, a consequence which Padilla states is “„the equivalent of banishment or
exile.‟” Id. at 373 (quoting Delgadillo v. Carmichael, 332 U.S. 388, 390-91 (1947)).
Because it involved a different, and “unique,” consequence of a criminal conviction,
Padilla does not directly control the disposition of this case. And in Webb v. State, 334 S.W.3d
126 (Mo. banc 2011), six members of the Missouri Supreme Court divided three-to-three
concerning Padilla‟s effect on claims that plea counsel was ineffective for misadvising, or failing
to advise, a defendant concerning a mandatory minimum term of incarceration. Id. at 134-40
(Wolff, J., concurring); id. at 143-45 (Fischer, J., dissenting).1 Given that Padilla does not
address the precise question decided in Reynolds, and that the judges of the Missouri Supreme
Court have expressed disagreement concerning Padilla‟s application in this context, I believe
this Court is obligated to continue to follow Reynolds, until the holding of that case is directly
overruled or modified by the Supreme Court of the United States or the Missouri Supreme Court.
1
The Missouri Supreme Court‟s per curiam opinion in Webb concluded that, because reversal for an
evidentiary hearing was required on other grounds, “[i]t is not necessary to consider whether Padilla applies to other
consequences [of a guilty plea] such as parole eligibility.” Id. at 131 n.8.
2
Cf. Doe v. Roman Catholic Archdiocese of St. Louis, 311 S.W.3d 818, 823 (Mo. App. E.D. 2010)
(Court of Appeals would continue to follow a Missouri Supreme Court decision on an issue of
federal constitutional law, absent a decision of the Supreme Court of the United States which
“plainly conflicts with,” or “directly question[s],” the Missouri Supreme Court decision).
/s/ALOK AHUJA
Alok Ahuja, Judge
3