DAVID G. DEPRIEST, Appellant,
STATE OF MISSOURI, Respondent. NATALIE DEPRIEST, Appellant,
STATE OF MISSOURI, Respondent.
FROM THE CIRCUIT COURT OF ST. FRANCOIS COUNTY The Honorable
Kenneth W. Pratte, Judge
and Natalie DePriest appeal from the motion court's
judgments overruling, without evidentiary hearings, their
separate Rule 24.035 motions for post-conviction relief. Both
alleged they had received ineffective assistance of counsel
in pleading guilty due to an actual conflict of interest
arising out of trial counsel's dual representation of the
DePriests during plea negotiations and subsequent guilty
pleas. In their amended motions, the DePriests separately
requested evidentiary hearings. The motion court overruled
each of the DePriests' motions without evidentiary
hearings. This Court has jurisdiction over the appeals
pursuant to article V, section 10, of the Missouri
Constitution. The motion court's judgments are vacated,
and these cases are remanded for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
DePriests are brother and sister. After a maintenance man
reported a marijuana-growing operation in their apartment,
the police searched it and seized several plants, seedlings,
packages of marijuana, and a firearm. David and Natalie were charged separately
with: (1) producing a controlled substance by cultivating
more than five grams of marijuana under section 195.211,
 (2) possession of a controlled
substance with intent to distribute under section 195.211,
and (3) unlawful possession of a weapon under section
571.020. The DePriests were represented by the same counsel
throughout their separate criminal proceedings.
state offered a joint plea deal to the DePriests of 10
years' imprisonment with the possibility of probation if
they successfully completed a program of shock incarceration
under section 559.115. In response, defense counsel wrote a
joint letter to the DePriests advising them both not to take
the offer. In so doing, he acknowledged that the strength of
the state's case against Natalie was much weaker than its
case against David, stating: "I really do not see how
the Prosecutor thinks he has any case against [Natalie] for
cultivation. Even the charge of possession against Natalie
may be rather weak …."
counsel then filed motions to suppress evidence in both cases
and requested a joint preliminary hearing at which to present
those motions. In response, the state sent a letter to
defense counsel withdrawing the earlier plea offer. Later,
the state made a new joint plea offer, this time proposing
15-year sentences with the possibility of probation under
section 559.115 for both David and Natalie. Defense counsel
rejected this offer and proposed, instead, suspended
impositions of sentence for both defendants. The state
declined and stated that no further joint offers would be
and Natalie were not incarcerated during these initial plea
negotiations. During the negotiations, however, Natalie was
charged with an unrelated misdemeanor for passing a bad
check. Based on that charge, the state moved to revoke
Natalie's bond in the present case. The state then sent
defense counsel a plea offer for Natalie alone. The
prosecutor offered Natalie a better deal if she would testify
against her brother, at the same time noting that this
created a conflict of interest between counsel's
representation of David and Natalie and that the state might
move for disqualification, writing:
[The state] will recommend 15 years pursuant to 559.115. [The
state] will dismiss the other two counts against her.
… However, should she not wish to accept the deal
… [the state] will then be making an offer to you to
have her testify against her brother and while you may assert
that she does not wish to do so [the state] will also be
filing a motion to disqualify you as you would not be able to
successfully represent her and her brothers [sic] interest.
counsel wrote Natalie and advised her not to accept this
offer. Defense counsel recommended that Natalie instead
continue pursuing a suspended imposition of sentence. Defense
counsel also wrote to David and explained that he understood
the state would reinstate Natalie's bond (pending
sentencing) only if both DePriests pleaded guilty
with 15-year sentences subject to the possibility of
probation under section 559.115. Counsel did not withdraw,
and the state did not seek to disqualify him.
August 2013, the DePriests jointly pleaded guilty on
counsel's recommendation. David pleaded guilty to all
three counts (i.e., producing a controlled substance,
possessing a controlled substance with intent to distribute,
and unlawful possession of a weapon). Natalie, however,
pleaded guilty only to the first two counts, and the weapons
charge against her was dismissed. Both were "open"
guilty pleas; the state had not agreed to binding or
non-binding sentencing recommendations. At the plea hearing,
the following exchange took place:
Defense Counsel: David's plea is an open plea, except
… that it was contingent on both defendants pleading
guilty; in other words, the offer to Natalie was contingent
on David pleading guilty. So [David] is relying on the
agreement in [Natalie's] case. There is no agreement as
to disposition of his case.
Assistant Prosecuting Attorney: There is no plea bargain.
Trial Court: There is no plea bargain.
Assistant Prosecuting Attorney: [The prosecuting attorney]
wanted both defendants dealt with. [He] wanted both
defendants dealt with today.
Trial Court: Okay. That's what we're doing. But there
is no - there is no plea bargain agreement. It's an open
Assistant Prosecuting Attorney: With respect to David
Depriest, right. With respect to Natalie Depriest -
Trial Court: Let's go to Natalie Depriest.
Assistant Prosecuting Attorney: With respect to Natalie
Depriest's case, she's pleading open to Counts I and
II. All other counts and case [sic] against her are
dismissed. And as a side agreement, her bond, we'll agree
that her bond can be reinstated [pending sentencing in the
in the same hearing, the following exchange occurred:
Trial Court: Do you understand by my accepting your pleas of
guilty, I am agreeing to be bound by the terms of your plea
bargain agreements, which means, basically, if you have an
agreement, which you two don't because you have open
pleas, that I will be bound by the terms of the agreement?
David Depriest: [No Response.]
Natalie Depriest: [No response].
DePriests pleaded guilty at a group plea hearing. The court
entered guilty pleas for a total of seven defendants
simultaneously. The court advised the seven defendants of
their rights as a group and questioned them as a group. The
court took their pleas moving down the line of defendants. It
made no inquiry into the possibility of a conflict of
interest due to counsel's joint representation of Natalie
and David, although it was evident at the hearing that they
were represented by the same counsel and received the same
plea deal even though they played different roles in the
crimes to which they pleaded guilty.
trial court accepted both DePriests' pleas. At the
sentencing hearing in November 2013, defense counsel argued
that the court should suspend the impositions of sentence for
both David and Natalie and place them both on probation. The
state argued that David and Natalie should each receive the
maximum prison sentences on all counts, with no possibility
of probation under section 559.115. The trial court sentenced
David and Natalie as recommended by the prosecutor to 15-year
sentences on the first two counts, to be served concurrently.
David received a seven-year consecutive sentence on the
weapons count. Neither David's nor Natalie's sentence
included the possibility of probation under section 559.115.
Rule 24.035 Motion
amended Rule 24.035 post-conviction motion alleges
ineffective assistance of counsel because defense counsel
continued to represent both her and David long after it
became clear in the plea negotiations that there was an
actual conflict of interest between them. Natalie further
alleges this conflict adversely affected defense
counsel's performance on her behalf by causing defense
counsel not to seek a separate plea offer for her earlier in
the negotiations despite the relative weakness of the
evidence against her and by causing defense counsel to fail
to "candidly and honestly advise Natalie about the
wisdom of testifying against David, because of his duty of
loyalty to David[.]"
September 2014, the motion court denied Natalie's motion
without an evidentiary hearing, stating:
… Movant cannot demonstrate what she "lost"
by her representation by [defense counsel]. Nor can she say
that she was unaware that he represented her brother, as they
stood side by side throughout the case and at guilty plea.
Finally, she cannot contend David got any advantage if there
was any to be had, from the dual representation. Indeed,
considering she was present when he received a harsher
sentence, she must know he got no appreciable
"advantage" at all. Movant merely hints at actions
[defense counsel] could have taken were he not also
representing her brother.