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Brandon v. State

Court of Appeals of Missouri, Western District, Fourth Division

July 25, 2017

TIMOTHY S. BRANDON, Respondent,
v.
STATE OF MISSOURI, Appellant.

         Appeal from the Circuit Court of Clay County, Missouri The Honorable Shane T. Alexander, Judge.

          Before: Mark D. Pfeiffer, Chief Judge, and James Edward Welsh and Edward R. Ardini, Jr., Judges.

          MARK D. PFEIFFER, CHIEF JUDGE.

         The State of Missouri ("State") appeals from the Judgment of the Circuit Court of Clay County, Missouri ("motion court"), granting, after an evidentiary hearing, Timothy Brandon's ("Brandon") amended Rule 24.035[1] motion for post-conviction relief, in which he alleged that he received ineffective assistance of counsel. Because the motion court clearly erred in granting post-conviction relief, we reverse.

         Factual and Procedural History

         The State charged Brandon by information with one count of statutory sodomy in the first degree. An amended information alleged that Brandon was a prior offender. A jury trial began on January 6, 2014. The next day, after the State called two witnesses, the parties reached a plea agreement. The State agreed to file a second amended information charging Brandon with the class C felony of domestic assault in the second degree and to dismiss an unrelated drug case upon the plea court's acceptance of Brandon's guilty plea. The State and Brandon agreed to jointly recommend a seven-year sentence in the Missouri Department of Corrections.

         The plea court then conducted a plea hearing based on Brandon's petition to enter a plea of guilty as charged in the second amended information. The plea court informed Brandon of his rights and found that he knowingly and voluntarily waived them and entered a plea of guilty to the class C felony of domestic assault in the second degree. The plea court sentenced Brandon to seven years' imprisonment.

         Thereafter, Brandon timely filed a pro se Rule 24.035 motion. Appointed counsel timely filed an amended motion. Pertinent to this appeal, Brandon alleged that plea counsel provided ineffective assistance when she incorrectly and affirmatively advised Brandon that, if he pleaded guilty, he would not be required to complete the Missouri Sex Offender Program ("MoSOP") or be treated as a sex offender while in prison and on parole. Brandon alleged that "[t]his misadvice rendered [his] plea unknowing, involuntary, and unintelligent." He stated that he was prejudiced by receiving this misinformation because, had plea counsel correctly advised him, he would not have pleaded guilty and would have insisted on going to trial.

         Brandon alleged that plea counsel told him that domestic assault in the second degree was not an offense for which he would be required to complete MoSOP or be supervised as a sex offender because it was not a sex crime under Missouri law. Nonetheless, upon arrival at the Department of Corrections, Brandon was advised that the Board of Probation and Parole would release him on his parole date of July 25, 2016, if he successfully completed MoSOP; and, if he declined to participate in MoSOP, his parole would be extended out to a date between July 25, 2016, and possibly to a date as late as his conditional release date of January 25, 2017.

         The motion court conducted an evidentiary hearing. Plea counsel testified that she told Brandon he would not have to admit to any sex offense or register as a sex offender because he would not be pleading guilty to a sex offense, and he would not be required to successfully complete MoSOP. Brandon testified that he would not have pleaded guilty but for the incorrect advice he claimed to have received from plea counsel.

         Christina McCarthy, the district administrator with the Department of Probation and Parole at the Farmington Correctional Center, testified via deposition. She identified MoSOP as a Department of Corrections policy implemented by the Board of Probation and Parole. She described MoSOP as "a program to assist sexual offenders with reducing their recidivism rate before they get released back into the community." She explained that participation in MoSOP is statutorily mandated for offenders in prison for sexual offenses; and, the Board of Probation and Parole may also at its discretion impose successful completion of MoSOP as a condition of parole for any offender regardless of the offense for which the offender was convicted. Ms. McCarthy then explained that the Parole Board essentially offered Brandon the option of being paroled six months prior to his conditional release date in exchange for successful completion of MoSOP.

         Irrespective of Brandon's decision to participate in MoSOP or not, however, Brandon's seven-year sentence imposed by the plea court was not impacted in any fashion whatsoever and, in fact, Brandon was released on January 25, 2017, well in advance of a full seven-year prison term.

         The motion court entered its judgment granting Brandon's amended Rule 24.035 motion, and the State timely appealed.

         Standard of Review

         A judgment sustaining a motion filed under Rule 24.035 is a final judgment for purposes of appeal by the State. Rule 24.035(k). Appellate review is limited to determining whether the motion court's findings of fact and conclusions of law are clearly erroneous. Id. "The motion court's findings and conclusions are clearly erroneous only if, after reviewing the entire record, the appellate court is left with the definite and firm impression that a mistake has been made." Hendrix v. State, 473 S.W.3d 144, 148 (Mo. App. W.D. 2015).

         Point I - Ineffective ...


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