Court of Appeals of Missouri, Western District, Fourth Division
TIMOTHY S. BRANDON, Respondent,
STATE OF MISSOURI, Appellant.
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.
D. PFEIFFER, CHIEF JUDGE.
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 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.
and Procedural History
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.
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'
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.
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.
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
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.
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.
motion court entered its judgment granting Brandon's
amended Rule 24.035 motion, and the State timely appealed.
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).
I - Ineffective ...