Court of Appeals of Missouri, Eastern District, Third Division
from the Circuit Court of Jefferson County 16JE-CC00715
Honorable Troy A. Cardona
M. Dowd, Judge
post-conviction-relief case arose out of an incident in which
Gerald Parsons, while intoxicated, crashed his vehicle into a
stationary police vehicle injuring the officer inside.
Parsons was charged with driving while intoxicated (DWI) and
second-degree assault of a law enforcement officer, both
class B felonies which carried punishment ranges of five to
15 years in prison. After plea negotiations failed, Parsons
entered blind guilty pleas to both charges and received
concurrent sentences of 12 years on each conviction. Later,
it was determined that the DWI charge was an included offense
of the assault charge and, therefore, the guilty plea on the
DWI charge violated Parsons's constitutional right
against double jeopardy. Parsons was permitted to withdraw
his guilty plea to the DWI charge and that charge was
dismissed, but his guilty plea and 12-year sentence on the
assault charge remained in place.
now appeals the denial following an evidentiary hearing of
his Rule 24.035 motion for post-conviction relief based on
allegations of ineffective assistance of counsel. He contends
that the motion court clearly erred when it found he was not
prejudiced by his counsel's failure to recognize the
double jeopardy situation presented by the two charges and
counsel's advice that he plead guilty to both charges.
that the motion court clearly erred when it found that
Parsons was not prejudiced by counsel's error. Therefore,
we reverse and remand.
Parsons's guilty pleas and counsel's discovery of the
double jeopardy issue.
§ 558.011.1(2), second-degree assault of a law
enforcement officer and driving while intoxicated each carry
a sentence range of between five and 15 years in prison.
During the plea bargain negotiations in this case, the State
offered to recommend sentences of 11 years on each charge in
exchange for Parsons's guilty pleas. Parsons rejected
the offer. Then, on February 25, 2016, he entered blind
guilty pleas to the two charges. On April 20, 2016, the court
accepted his pleas and sentenced him to 12 years on each
conviction and ordered the sentences to run concurrently.
counsel then discovered that the DWI charge was an included
offense since driving while intoxicated was one of the
elements of the assault charge. As a result, the guilty pleas
and convictions subjected Parsons to multiple punishments for
the same offense in violation of his constitutional right to
be free from double jeopardy, which Parsons never
waived. The plea court and the State were also
apparently unaware of this defect in the plea negotiations
and the court's sentences.
5, 2016, counsel filed a motion to withdraw Parsons's
guilty plea to the DWI charge to which the State consented
and on May 19, 2016, the court set aside that guilty plea.
The State also filed a nolle prosequi as to the DWI
counsel did not advise him that he should seek also to
withdraw his guilty plea to the assault charge. In fact,
counsel stated at the evidentiary hearing that after
realizing his error with respect to the double jeopardy
issue, he told Parsons it was best not to seek re-sentencing
on the assault charge because he feared that if Parsons
requested a lesser sentence, the plea court might be inclined
to give him a greater one.
Parsons `s Rule 24.035 motion for post-conviction relief and
then filed his Rule 24.035 motion seeking relief from the
assault conviction and its 12-year prison sentence. He
asserted multiple claims of prejudicial ineffective
assistance of counsel,  including that counsel's erroneous
advice caused him to plead guilty to the assault charge
unknowingly and involuntarily and that had counsel correctly
advised him that he legally faced only the assault charge and
its 15-year maximum sentence-not both the assault charge
and the DWI charge with its additional 15 years-he
would have gone to trial.
evidentiary hearing, Parsons testified that at the time he
entered his blind guilty pleas, he believed he "did not
really have any options" except to plead guilty, because
he thought he could be sentenced up to a maximum of 30 years
in prison. Plea counsel testified that before he discovered
his error, he advised Parsons that he had a "very
difficult case" for trial; that consecutive sentences
were "a possibility"; and that, therefore, he could
face up to 30 years on the charges. Parsons testified, however,
that had he known he faced only the assault charge and its
15-year maximum sentence, he would not have pleaded guilty
and would have insisted on going to trial.
motion court-notably, the same judge as in the plea
court-found that Parsons's counsel was "deficient in
failing to object to the imposition of sentence on both
charges." But the motion court found that Parsons was
not prejudiced by counsel's error because the plea court
set aside Parsons's DWI guilty plea and conviction. The
motion court also found that Parsons's remaining guilty
plea, to the second-degree assault charge, was entered
knowingly and voluntarily, despite the fact that Parsons had
entered it based on misinformation about the double jeopardy
consequences and thus as a result of a fundamentally-flawed
plea bargaining process.
The two-part Strickland test for ineffective
assistance of counsel under Rule 24.035.
review the denial of a Rule 24.035 motion for post-conviction
relief only to determine whether the motion court's
findings and conclusions are clearly erroneous. Rule
24.035(k); Dorsey v. State,448 S.W.3d 276, 282
(Mo.banc 2014). Findings and conclusions are clearly
erroneous only if, after reviewing the entire record, we are
left with the definite and firm impression that a mistake has
been made. Swallow v. State,398 S.W.3d 1, 3