Webb v. State

PER CURIAM.

Introduction

Eric Webb, an intoxicated driver who pleaded guilty to first-degree involuntary manslaughter and armed criminal action, alleges that he did not receive effective representation when he pleaded guilty because his attorney misled him by telling him that he would not be subject to the law requiring him to serve 85 percent of his sentence in prison on the manslaughter conviction before becoming eligible for parole.

This Court has held that the failure to inform a client about parole eligibility does not render the attorney’s representation ineffective but has indicated that a plea may be considered involuntary if counsel misinforms the client as to the effects of the plea. Reynolds v. State, 994 S.W.2d 944, 946 (Mo. banc 1999). The court of appeals has observed this distinction based on Reynolds by holding that counsel’s misinformation renders the representation ineffective. This Court now adopts this distinction and holds that where counsel misinforms the client as to the effects of the client’s plea, the counsel has rendered ineffective representation. Webb, therefore, is entitled to an evidentiary hearing.

Facts and Procedural History

Eric Webb, driving a Jeep under the influence of alcohol, collided with a truck, killing Terry Parker, an occupant of the truck. Webb was indicted as a persistent offender with one count of the class B felony of first-degree involuntary manslaughter, one count of armed criminal action and one count of failure to drive on the right half of the roadway.

When Webb appeared at a June 2008 plea hearing, the prosecutor told the court that the state was dropping the charge for failure to drive on the right half of the roadway in exchange for Webb’s guilty pleas to the other two charges. In exchange for Webb’s guilty pleas, the prosecutor recommended that Webb receive two 10-year sentences to run concurrently.

Webb’s guilty pleas admitted that in April 2007, while he was driving under the influence of alcohol, he drove on the wrong side of the road with criminal negligence and collided with a vehicle in which Terry Parker was an occupant, causing Parker’s death. He also admitted that he committed the crime of involuntary manslaughter through the use of a dangerous instrument, an automobile. He then entered guilty pleas to one count of first-degree involuntary manslaughter and one count of armed criminal action.

After he pleaded guilty, the court asked Webb a series of questions, to which Webb responded that (1) no one had threatened him or promised him anything to get him to plead guilty, (2) he understood he was waiving all of his rights at trial and (8) he understood the range of punishment available for both counts. Webb also said that his attorneys had not made him plead guilty against his free will, that his attorneys could not have done anything differently in handling his case and that he was satisfied with their legal services. The court found that Webb’s pleas were voluntary, knowing and intelligent but deferred acceptance of his pleas until the court could see the sentencing assessment report (SAR) that it was ordering under section 217.760.¹

Webb appeared again in July 2008 for sentencing. Webb’s attorney acknowledged that she had reviewed the SAR and had discussed it with Webb. The court informed Webb that, based on the SAR, it intended to reject the plea agreement and sentence Webb to a 12-year term of imprisonment rather than a 10-year term. Webb was given the opportunity to withdraw his plea but chose to maintain it and accept the 12-year sentence. The court then sentenced Webb to 12 years of imprisonment on each count to run concurrent with one another and concurrent with a prior sentence that Webb already was serving. Though indicted as a persistent offender, Webb was not sentenced as a persistent offender.

Webb timely filed a pro se motion for post-conviction relief. The court appointed post-conviction counsel, who filed an amended Rule 24.035 motion. The motion alleged, in part, that Webb’s guilty plea was involuntary and unknowing because he was denied the right to effective assistance of counsel. Webb’s motion alleged that his counsel told him that, as a result of his guilty plea, he would not be subject to any “85 [percent] non-parole eligibility rule” but that he would be required to serve 40 percent of his sentence without parole eligibility. Webb alleged that, but for his attorney’s misrepresentation, he would have rejected pleading guilty and, instead, would have insisted on proceeding to trial. He also argued that because the 85-per-cent rule was contained in the statute, it was a direct consequence of his plea, and the sentencing court should have informed him of this consequence.

The motion court entered written findings of fact and conclusions of law and a judgment overruling Webb’s motion without an evidentiary hearing. After opinion in the court of appeals, this Court granted transfer and has jurisdiction. Mo. Const. art. V, sec. 10.

Standard of Review for Rule 24.035 Motion

This Court’s review of the overruling of a Rule 24.035 motion is limited to a determination of whether the motion court’s findings and conclusions are clearly erroneous. Rule 24.035(k); Feldhaus v. State, 311 S.W.3d 802, 804 (Mo. banc 2010).

A movant only is entitled to an evidentiary hearing if (1) the movant pleaded facts, not conclusions, warranting relief; (2) the facts alleged are hot refuted by the record; and (3) the matters complained of resulted in prejudice to the mov-ant. Matthews v. State, 175 S.W.3d 110, 113 (Mo. banc 2005). When the requested evidentiary hearing involves a claim of ineffective assistance of counsel, the movant must allege facts, unrefuted by the record, that (1) trial counsel’s performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney and (2) he was thereby prejudiced. Id. To satisfy the “prejudice” requirement when challenging a guilty plea, the movant must allege facts showing “ ‘that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’ ” Coates v. State, 939 S.W.2d 912, 914 (Mo. banc 1997) (quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).

The Guilty Pleas and Their Consequences

Webb entered guilty pleas to armed criminal action and the class B felony of involuntary manslaughter. Under section 565.024.2, a defendant who is convicted of involuntary manslaughter as a class B felony must serve a “minimum prison term” of “eighty-five percent of his or her sentence.” ² The statute was amended in 2005 to add the 85-percent requirement.³ Webb alleged, however, that his attorney advised him that the minimum prison term he would be required to serve was only 40 percent of his 12-year sentence. Webb, therefore, alleges that he pleaded guilty believing that the minimum prison term he would serve was 4.8 years of his sentence before becoming eligible for parole. In reality, he is required to serve at least 10.2 years of his sentence before he is eligible for parole.

This Court, as noted, has held that a defendant’s plea is not involuntary when a defendant pleads guilty to a crime without knowing that the crime carries a mandatory minimum penalty. Reynolds, 994 S.W.2d at 946. The defendant in Reynolds was not informed that he would have to serve 80 percent of his sentence before becoming eligible for parole. Id. at 945. He filed a Rule 24.035 motion arguing that his plea was involuntary because he was not informed of this consequence of his plea. Id. at 946. This Court held that, to enter a voluntary and intelligent plea, the defendant is required only to have knowledge of the direct consequences of his plea. Id. (citing Brady v. United States, 397 U.S. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)). Eligibility for parole, the Court said, is merely a “collateral” consequence of a defendant’s plea, and, therefore, “neither counsel nor the trial court is under an affirmative obligation to inform a defendant of the parole consequences of the guilty plea.” Reynolds, 994 S.W.2d at 946 (citing Hill, 474 U.S. at 56, 106 S.Ct. 366). The Court noted, however, that misinforming — in contrast to failing to inform — may affect the voluntariness of a defendant’s plea. Reynolds, 994 S.W.2d at 946.⁴

Since Reynolds, the court of appeals has drawn a distinction between misinformation and failure to inform. In Hao v. State, the eastern district of the court of appeals held that the defendant had pleaded sufficient facts to entitle him to an evidentiary hearing where the defendant was required to serve one-third of his sentence, but his attorney allegedly had informed him erroneously that he would be eligible for parole after serving only 15 percent of his sentence. Hao v. State, 67 S.W.3d 661 (Mo.App.2002). Similarly, in Patterson v. State, the western district of the court of appeals cited Hao with approval and held that “[a]n evidentiary hearing was necessary to determine whether counsel’s incorrect advice about the applicability of the eighty-five percent rule ‘could have had a prejudicial effect on the voluntariness of the plea.’ ” Patterson v. State, 92 S.W.3d 212, 216 (Mo.App.2002) (quoting Copas v. State, 15 S.W.3d 49, 55 (Mo.App.2000)). See also the southern district’s opinion in Fogle v. State, 124 S.W.3d 509, 511-12 (Mo.App.2004), remanding for an evidentiary hearing where the defendant alleged that counsel misinformed him as to the effect of his sentence on his eligibility for parole.

Further, the court of appeals has held that “[a] negative response to a routine inquiry whether any promise other than stated on the record had been made is too general to encompass all possible statements by counsel to his client.” Shackleford v. State, 51 S.W.3d 125, 128 (Mo.App.2001). In such a case, allegations that the defendant’s attorney misinformed him as to parole eligibility “are not conclusively refuted by the record [where] no mention is made of parole eligibility.” Id.; Reid v. State, 192 S.W.3d 727, 733 (Mo.App.2006).

In this case, the motion court held that Webb was not entitled to an evidentia-ry hearing because he had told the sentencing court that, other than the plea agreement with the state, he had not been promised anything to get him to plead guilty. The motion court, therefore, held that Webb’s claim that his attorney told him he only would have to serve 40 percent of his sentence was refuted by the record. But an attorney’s advice is not the same as a promise — a defendant can say correctly that he was promised nothing, but this does not mean he was given correct advice as to the effects of his plea. Moreover, Webb’s response after the plea that he was satisfied with his attorney’s services obviously was not made with knowledge that his plea attorney’s alleged advice had been incorrect. As noted, a negative response to a routine inquiry has not been considered sufficient to refute the record. See Shackleford, 51 S.W.3d at 128; Reid, 192 S.W.3d at 733. Under this analysis, the motion court’s finding that the record refutes Webb’s claim is clearly erroneous.⁵

The state agrees with the preceding analysis but argues Webb’s claim nonetheless is refuted by the record because the record shows that Webb reviewed the SAR with his attorney and that the information about parole eligibility is set forth in the SAR. Therefore, the state argues, Webb was informed he would have to serve a minimum prison term of 85 percent of his sentence when he reviewed his SAR with his attorney. The record in this Court at the time of oral argument did not contain the SAR because, the assistant attorney general said, the circuit clerk informed him that the SAR was not part of the court’s record and would not be produced. The SAR is not a public document until after the defendant pleads guilty. Section 557.026, RSMo 2000. But, as a document reviewed by the sentencing court, by Webb and by his attorney, it should be part of the record.⁶ This Court, after oral argument, ordered the clerk to send the SAR to this Court under seal, and this Court provided copies to counsel.

The state’s argument in this Court assumed that the SAR contained the information about the 85-percent requirement, but in fact Webb’s SAR does not contain any language notifying him or his attorney that he would be required to serve at least 85 percent of his sentence.⁷ Webb, therefore, is entitled to an evidentiary hearing and may be entitled to relief if he proves the facts he has alleged and establishes that he was prejudiced by relying on misinformation.⁸

Conclusion

The motion court’s judgment is reversed. The case is remanded.

TEITELMAN, WOLFF, BRECKENRIDGE and STITH, JJ., concur.

WOLFF, J., concurs in separate opinion filed.

TEITELMAN and STITH, JJ., concur in opinion of WOLFF, J.

FISCHER, J., dissents in separate opinion filed. PRICE, C.J., and RUSSELL, J., concur in opinion of FISCHER, J.

1 . All statutory citations are to RSMo Supp. 2007, unless otherwise indicated.

2 . See State v. Sealer, 316 S.W.3d 920 (Mo. banc 2010), for a discussion of this statute.

3 . 2005 Mo. Legis. Serv. 1st Ex.Sess. H.B. 2.

4 . The Court said:

Although there is authority for the proposition that misinforming as opposed to failing to inform a defendant about eligibility for parole may undermine'the voluntariness of the plea, ... in this case movant alleges only that he had not been informed, not that he had been misinformed. As such, he has no grounds to contest the plea.

Reynolds, 994 S.W.2d at 946 (internal citations omitted).

5 . The dissent argues that Peiffer v. State, 88 S.W.3d 439 (Mo. banc 2002), is controlling. It is not. The defendant in Peiffer asserted that he had received ineffective assistance of counsel where his counsel "told him that if he pleaded guilty and received concurrent sentences, his date for earlier release on another sentence would not be affected.” Id. at 445. Not only did this Court find that the defendant "failed to establish any facts not refuted by the record,” it also found that "the motion court’s findings were not clearly erroneous." Id. at 446. The motion court had found that the defendant’s belief that he would receive credit for time served on an earlier case was unreasonable. Id. at 445. The motion court also noted that the defendant "failed to allege that his attorney specifically told him he would receive credit in this manner.” Id.

6 . Because the sentencing court considered the SAR, it is part of the circuit court record to be reviewed in post-conviction proceedings. See Rule 30.04(a) ("The record on appeal shall contain all of the record, proceedings, and evidence necessary to the determination of all questions to be presented.”); Rule 30.04(h) ("If anything material is omitted from the record on appeal, ... [t]he appellate court may ... order that a supplemental record on appeal be prepared ... by the clerk of the trial court.”). In this case, the record reflects that counsel reviewed the SAR with Webb, and the sentencing court reviewed the SAR before rejecting the 10-year plea agreement. This is consistent with the statutes governing presentence investigations, sections 217.760, RSMo Supp.2003; 217.762, RSMo 2000; and 557.026, RSMo 2000, pursuant to which the SAR is prepared. See also Rule 29.07(a). Section 559.125, RSMo 2000, allows only the parole board and "the judge entitled to receive [presentence] reports” to view the presentence reports. A defendant or his attorney as well as any "other person having a proper interest therein” may inspect the report at the discretion of the court. Section 559.125.2. Finally, the report shall be made available to the state when "at the discretion of the court/' the report's receipt "is in the best interest of the state.” Section 559.125.3. Under this statute, any appellate court considering the case below has "a proper interest therein” to view the SAR. It is also in the best interest of the state to allow the appellate court to have access to the SAR. Therefore, in cases such as this, after the plea, the SAR is part of the record, and circuit court clerks are to provide copies of a defendant’s SAR upon request to post-conviction and appellate counsel for both the defendant and the state. Because the information in the report is privileged, the SAR is to be entered in the record under seal.

7 . Section 565.024 provides that first-degree involuntary manslaughter is a class B felony when a person, driving while intoxicated, acts with criminal negligence and kills a passenger in another car. Section 565.024. l(3)(a). The statute as written leads to some confusion, but it is not vague. Seeler, 316 S.W.3d 920. Section 565.024.2 makes a conviction of violating section 565.024. l(3)(a) subject to the 85-percent limitation on parole eligibility. In addition to the statute, this information was available to counsel in the 2007-2008 Users Guide of the Missouri Sentencing Advisory Commission, available at http://www.mosac. mo.gov/file/User% 20Guide% 202007-2008_l.pdf, on page 7, and also was available on the "Automated Recommended Sentencing Information” on the Missouri Sentencing Advisory Commission website, http://www. mosac.mo.gov/page.asp?id=181. There is no reason that appears on Webb’s SAR as to why the probation officer who prepared the report did not include the 85-percent requirement.

8 . In his brief and at oral argument, Webb argued that he should receive an evidentiary hearing under the United States Supreme Court’s recent decision in Padilla v. Kentucky, - U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). It is not necessary to consider whether Padilla applies to other consequences such as parole eligibility because Webb is entitled to an evidentiary hearing under Missouri’s case law.