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Depriest v. State

Supreme Court of Missouri, En Banc

February 28, 2017


         APPEAL FROM THE CIRCUIT COURT OF ST. FRANCOIS COUNTY The Honorable Kenneth W. Pratte, Judge

          PER CURIAM

         David 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.


         The 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.[1] 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] (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.

         The 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 …."

         Defense 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 forthcoming.

         David 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.

         Defense 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.

         In 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 plea.
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 present case].

         Later 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].

         The 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.

         The 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.

         Natalie's Rule 24.035 Motion

         Natalie's 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[.]"

         In 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.

         David's ...

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