Court of Appeals of Missouri, Southern District, First Division
JEREMY W. ARATA, Movant-Appellant,
STATE OF MISSOURI, Respondent-Respondent.
FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Calvin
Holden, Circuit Judge
JEFFREY W. BATES, P.J.
Arata (Arata) appeals from the motion court's denial,
following an evidentiary hearing, of Arata's Rule 29.15
motion for post-conviction relief. In the underlying criminal
case, Arata was convicted by a jury of first-degree
involuntary manslaughter and sentenced to 12 years'
imprisonment. See § 565.024. Because Arata was
intoxicated when he hit and killed another motorist, he is
required to serve 85% of his sentence before becoming
eligible for parole (the 85% rule). See §
565.024.1(3)(a); § 565.024.2. On appeal, Arata contends
his defense counsel was ineffective in failing to inform
Arata, prior to declining a seven-year plea offer from the
State, that Arata would be subject to the 85% rule. Arata
argues that he was prejudiced because "if [he] had been
informed that he would have to serve 85% of any sentence
imposed for involuntary manslaughter in the first degree,
[he] would not have taken his case to trial, but would have
accepted the [S]tate's seven-year plea offer."
Finding no merit in this contention, we affirm.
review of the motion court's findings of fact and
conclusions of law is for clear error. Rule 29.15(k). This
Court presumes that the motion court's findings and
conclusions are correct, and we may reverse only when left
with a definite and firm impression that the motion court has
made a mistake. Zink v. State, 278 S.W.3d 170, 175
(Mo. banc 2009). "On a claim of ineffective assistance
of counsel, the motion court is free to believe or disbelieve
any evidence, whether contradicted or undisputed."
Savick v. State, 461 S.W.3d 63, 66 (Mo. App. 2015).
We defer to the motion court's credibility
all claims of ineffective assistance of counsel, the test to
determine whether counsel was ineffective throughout plea
negotiations is the two-prong test stated in Strickland
v. Washington, 466 U.S. 668, 687-94 (1984). Lafler
v. Cooper, 132 S.Ct. 1376, 1384-85 (2012); Missouri
v. Frye, 132 S.Ct. 1399, 1409-10 (2012);
Savick, 461 S.W.3d at 66. Thus, a movant must
overcome the strong presumption that counsel was competent
and demonstrate instead that: (1) counsel failed to exercise
the customary skill and diligence that a reasonably competent
attorney would exercise; and (2) that such failure prejudiced
the movant. Strickland, 466 U.S. at 687-94. Where
the movant claims that counsel's deficient performance
led him to reject a plea offer and proceed to trial,
Strickland prejudice exists when:
but for the ineffective advice of counsel there is a
reasonable probability that the plea offer would have been
presented to the court (i.e., that the defendant
would have accepted the plea and the prosecution would not
have withdrawn it in light of intervening circumstances),
that the court would have accepted its terms, and that the
conviction or sentence, or both, under the offer's terms
would have been less severe than under the judgment and
sentence that in fact were imposed.
Lafler, 132 S.Ct. at 1385. "Both of these
prongs must be shown by a preponderance of the evidence in
order to prove ineffective assistance of counsel."
Zink, 278 S.W.3d at 175.
case, Arata failed to meet his burden of proving defense
counsel failed to inform Arata that he would have to serve
85% of any sentence imposed before becoming eligible for
parole. Arata and defense counsel provided the only testimony
at the evidentiary hearing on Arata's amended
post-conviction motion. Arata testified that: (1) he was not
informed by defense counsel of the 85% rule's
applicability to his case; and (2) if he had known that he
would have to serve 85% of any sentence imposed before
becoming eligible for parole, he would have taken the
State's offer of seven years instead of proceeding to
trial. Defense counsel testified that he could not
specifically remember telling Arata the 85% rule applied to
his case. Defense counsel did, however, provide the following
additional relevant testimony: (1) it was defense
counsel's practice and procedure to inform his clients if
there was a minimum parole requirement associated with any
charges they faced; (2) defense counsel reviewed §
565.024 when advising Arata whether to accept the plea; (3)
defense counsel was certain that he had seen the 85% rule
when advising Arata whether to accept the offer because it
was included in § 565.024 at the time; and (4) defense
counsel would be surprised if he had not told Arata that the
85% rule applied in his case.
motion court considered Arata and defense counsel's
testimony, weighed their credibility and determined that
Arata had not proven by a preponderance of the evidence that
defense counsel failed to inform him that he would have to
serve 85% of any sentence imposed before becoming eligible
for parole. Although Arata in his own testimony professed
ignorance of the 85% rule, the motion court did not find that
evidence credible. Defense counsel's contrary testimony
about his practice and procedure, on the other hand, was
found credible by the motion court. The decision of which
testimony to credit under these circumstances was a matter
for the motion court to resolve, and we defer to its
determination. Savick, 461 S.W.3d at 66. Because
Arata's testimony was not believed, he failed to prove
his claim that defense counsel did not advise him of the 85%
rule's applicability to his case. Without such proof,
Arata failed to overcome the strong presumption that defense
counsel rendered effective assistance.
claim also fails because defense counsel had no duty to
inform Arata that he was subject to the 85% rule. In other
words, even if true, the facts alleged by Arata do not
warrant post-conviction relief as a matter of law. Arata
cites Frye, Lafler and Padilla v.
Kentucky, 559 U.S. 356 (2010), for the principle that
criminal defendants are entitled to receive effective
assistance of counsel when deciding whether to accept a plea
offer extended by the State. That a constitutional right to
effective assistance of counsel in plea negotiations exists,
however, does little to define the scope of that right, and
the Supreme Court has declined to outline the specific
obligations of defense counsel during plea negotiations.
See Frye, 132 S.Ct. at 1408; see also Arnold v.
State, No. ED102943, 2016 WL 1642966, at *5-6 (Mo. App.
April 26, 2016) (noting Frye is limited to cases
where counsel failed to communicate an existing plea offer to
the defendant and Lafler is limited to cases where
counsel provided bad advice on whether to accept an existing
offer). As for the resolution of this appeal, it is
sufficient to simply reiterate that multiple Missouri cases,
post Frye, Lafler and Padilla,
have considered the scope of a defense counsel's
obligation to inform a defendant of parole eligibility, which
is a collateral consequence of the guilty plea. These cases
have concluded that defense counsel may be ineffective for
affirmatively misadvising a defendant about his or her parole
eligibility for a particular sentence, but counsel cannot be
ineffective for merely failing to inform a defendant of such
consequences. Compare Davis v. State, 497 S.W.3d
307, 307-08 (Mo. App. 2016) (vacating and remanding for an
evidentiary hearing where the movant rejected a plea offer
and proceeded to trial after his counsel allegedly misadvised
him that he would have to serve 85% of his sentence before
becoming eligible for parole), with Voegtlin v.
State, 464 S.W.3d 544, 554-55 (Mo. App. 2015) (holding
counsel had no duty to inform a defendant that he would have
to serve a minimum of 40% of his sentence before becoming
eligible for parole because parole eligibility is only a
collateral consequence of a guilty plea); Simmons v.
State, 432 S.W.3d 306, 308-09 (Mo. App. 2014) (applying
the same rule to a claim that counsel was ineffective for
failing to inform a defendant he would have to serve 85% of
his sentence before becoming eligible for parole);
Johnson v. State, 398 S.W.3d 513, 516-17 (Mo. App.
2013) (same holding); Smith v. State, 353 S.W.3d 1,
3-5 (Mo. App. 2011) (same holding). Thus, consistent with
long-standing Missouri law, defense counsel cannot be found
ineffective for the mere failure to advise Arata that he was
subject to the 85% rule because parole eligibility remains a
collateral consequence about which defense counsel had no
duty to inform Arata.
Arata acknowledges this important principle in his brief. In
an apparent attempt to present a cognizable claim, however,
post-conviction appellate counsel argues that defense counsel
underestimated the strength of the State's case when
advising Arata whether to accept the State's plea offer.
Because this claim was not included in Arata's amended
motion, it is waived and is not subject to plain error
review. McLaughlin v. State, 378 S.W.3d 328, 340
(Mo. banc 2012). The fact that Arata presented some evidence
of the claim at his evidentiary hearing does nothing to
change this result. Id.; Day v. State, 495
S.W.3d 773, 776 (Mo. App. 2016).
this Court is not left with a definite and firm impression
that the motion court made a mistake. Zink, 278
S.W.3d at 175. The motion court's findings and
conclusions are not clearly erroneous. Rule 29.15(k).
Arata's point ...