Court of Appeals of Missouri, Western District, Fourth Division
ARAK L. McCOY, Appellant,
STATE OF MISSOURI, Respondent
Appeal from the Circuit Court of Jackson County. The Honorable Michael W. Manners, Judge.
Jonathan Laurans, Kansas City, MO, for appellant.
Evan J. Buchheim, Jefferson City, MO, for respondent.
Before Division Four: Alok Ahuja, C.J., Cynthia L. Martin, J., and David H. Miller, Sp. J. All concur.
Alok Ahuja, Chief Judge.
Arak McCoy pleaded guilty in the Circuit Court of Jackson County to one count of statutory sodomy, for which he was sentenced to ten years' imprisonment. Execution of the sentence was suspended, and McCoy was placed on probation for five years. McCoy later filed a motion under Supreme Court Rule 29.07(d), seeking to withdraw his plea. McCoy argued that his guilty plea was not knowing and voluntary because his plea counsel had misadvised, and failed to advise, him concerning the terms of the lifetime supervision and monitoring to which he would be subject as a result of his conviction. The circuit court denied relief following an evidentiary hearing. We affirm.
The State charged McCoy with one count of first-degree statutory sodomy under § 566.062, based on an incident in September 2011 during which he allegedly inserted his penis into the anus of a boy who was less than 12 years old. McCoy was less than seventeen years old at the time of the offense.
The State and McCoy negotiated a plea agreement. In exchange for McCoy's guilty plea the State agreed to amend the charge to allege sodomy involving a victim less than 14 years old. In light of the amendment, the offense would no longer be deemed a " dangerous felony" under § 556.061(8), and McCoy would therefore not be subject to the requirement of § 558.019.3 that he serve a minimum of 85% of his sentence prior to being eligible for parole. The State also agreed to recommend a sentence of ten years, with execution of the sentence suspended and McCoy placed on probation for five years.
At the time of his guilty plea, McCoy was seventeen years old. At the plea hearing McCoy admitted that he had engaged in anal intercourse with a child who was less than fourteen, and that he was accordingly guilty of first-degree statutory sodomy. The court accepted his plea, and sentenced McCoy consistently with the plea agreement to ten years' imprisonment. Execution of the sentence was suspended, and McCoy was placed on five years' probation.
McCoy later filed a motion to set aside his guilty plea under Supreme Court Rules 24.035 and 29.07(d). McCoy's motion alleged that his plea counsel had failed to advise him that, pursuant to § 217.735, his guilty plea would render him subject to lifetime supervision and global positioning system (or " GPS" ) monitoring. Instead, McCoy claimed that plea counsel told him that he would be entitled to petition for release from probation and supervision within approximately two years, and that McCoy " would most likely be successful in doing so." McCoy's motion also alleged that counsel had advised him to admit that he had engaged in anal intercourse with the victim, even though that " admission was not true," " at least to the extent that [McCoy] had not anally penetrated the victim."
The motion court conducted an evidentiary hearing at which McCoy, his mother, and plea counsel testified. At the hearing, McCoy denied that he had penetrated the victim's anus with his penis; he testified that he admitted to this act during the plea hearing, even though it was not true, because counsel told him to do so. In addition, both McCoy and his mother testified that they were not informed of the lifetime
supervision and GPS monitoring requirements to which McCoy would be subject due to the nature of the offense to which he was pleading guilty. McCoy testified that counsel advised him " that I could petition to get off the registering after two years I believe."
Plea counsel testified that, in a private one-on-one meeting without his parents present, McCoy admitted to counsel that he had inserted his penis into the victim's anus, and had kept it there for " 'five or six minutes.'" Counsel denied ever telling McCoy to lie about what had happened. Counsel testified that he advised McCoy and his parents that " there was a mountain of evidence against him and that we needed to try to work out a plea with the State because I didn't believe that we would be successful at trial." The evidence against McCoy included medical evidence which indicated that the victim had experienced injuries consistent with anal penetration. Plea counsel testified that, although he informed McCoy that he would be subject to lifetime sex-offender registration, he advised McCoy and his parents " that there was a possibility that we could petition the Court for an early release" from his probation within two years. On cross-examination, counsel clarified that what he expressed to McCoy and his parents " was just kind of a generalized thought that, you know[,] [petitioning for early release was] something to look into maybe later." Counsel acknowledged that he did not advise McCoy or his parents of the lifetime GPS monitoring requirement.
Following the evidentiary hearing the circuit court entered judgment denying McCoy relief. The court determined that, because McCoy had never been delivered to the Department of Corrections, he could not seek post-conviction relief under Rule 24.035, but only under Rule 29.07(d). The court rejected McCoy's claim that counsel had instructed him to lie by admitting anal penetration of the victim: " Movant is, by his own testimony, a liar for whom the requirements of the oath will be readily jettisoned if they impede him in getting what he wants."
With respect to counsel's advice regarding lifetime supervision and monitoring, the circuit court determined that the supervision and monitoring requirements were " collateral consequences" of McCoy's guilty plea, and that counsel therefore was not required to advise McCoy of those consequences in order for his plea to be considered knowing and voluntary. The circuit court also found that, even if counsel was constitutionally obligated to inform McCoy of the lifetime supervision and monitoring requirements, there was not a reasonable probability that McCoy would have chosen to go to trial if counsel had more fully advised him. The court noted the length of the sentence to which McCoy would have been subject if he had been convicted after trial, the fact that ...