Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF NEW MADRID COUNTY Honorable W.
Keith Currie, Judge.
WILLIAM W. FRANCIS, JR., P.J.
Frazier ("Frazier") appeals from the judgment of
the motion court denying his amended Rule
24.035 motion to set aside his two convictions
for statutory sodomy in the second degree. In two points on
appeal, Frazier asserts that: (1) the motion court erred in
denying his motion because his "sentence is illegal in
that his parole is conditioned on an admission of guilt . . .
even though he entered an Alford plea"; and
(2) plea counsel was ineffective for advising Frazier to
enter Alford pleas because Frazier must admit guilt
as a prerequisite for parole. Because the motion court's
denial of Frazier's amended Rule 24.035 motion, following
an evidentiary hearing, was not clearly erroneous, we affirm.
and Procedural Background
reciting the facts of this matter, our treatment of the
evidence is in accord with the principle that we defer to the
motion court's credibility determinations and view the
evidence in the light most favorable to the motion
court's judgment. Hewitt v. State, 559 S.W.3d
390, 392 (Mo.App. S.D. 2018). We recite other evidence not
encompassed by this standard as necessary for context.
was charged by information with two counts of the class C
felony of statutory sodomy in the first degree. He entered
into an Alford plea agreement with the State whereby
the State would reduce both counts to statutory sodomy in the
hearing was held on August 26, 2014. Frazier advised the
trial court that it was his decision to enter Alford
pleas, and he had discussed the plea with his attorney. The
following colloquy then took place:
THE COURT: Now, Mr. Frazier, have you spoken with your
attorney about what an Alford plea is?
[FRAZIER]: Yes, sir.
THE COURT: Let me explain to you what I understand an Alford
plea to be, because I want to make sure that you and I are
talking about the same thing.
Now, it's called an Alford plea because it's named
after a case that involved a gentleman, I believe it was a
gentleman from the state of North Carolina, he was charged
with some type of felony offense in North Carolina, and, he
ended up entering what we refer to as an Alford plea. And
that case went all the way to the United States Supreme
Court. And, in that case the Supreme Court recognized a plea
by which the defendant in entering his plea was not
necessarily admitting his guilt to the offense, or the
offenses that he was pleading to, but he was telling the
Court by entering his plea that his understanding of the
evidence that would be presented against him at trial was
such that if he were to go to trial, there would be a very
real possibility that he would be found guilty and convicted,
and the defendant believed it was in his best interest in
[sic] enter what we now refer to as an Alford plea.
Now, do you understand kind of what I just told you I
understand an Alford plea to be?
[FRAZIER]: Yes, sir.
THE COURT: And, is that basically the same type of plea that
you want to enter before the Court here today?
THE DEFENDANT: Yes, sir.
indicated his understanding that the term of punishment on
each count was up to a year in the county jail or a term in
the Department of Corrections ("DOC"), not to
exceed seven years; that he did not have to enter
Alford pleas, but could instead proceed to trial;
understood his rights attendant to a jury trial; he was
satisfied with counsel's representation; and that counsel
had done what Frazier asked.
confirmed he understood the charges against him as recited by
the trial court; believed it was in his best interest to
enter the Alford pleas; and was entering the
Alford pleas of his own free will. The evidence
against Frazier was recited, Frazier indicated he understood
the evidence, and that this understanding was the basis for
his Alford pleas.
to the Alford plea agreement, the State recommend a
five-year sentence on each count, with the sentences to run
consecutively, and Frazier would receive a suspended
execution of those sentences and five years of supervised
probation. Frazier confirmed he understood this sentencing
recommendation. He affirmed his understanding that if the
trial court accepted his plea and "[made] a finding of
[his] guilt" as to the two charges and placed him on
probation, he would be supervised by the Board of Probation
and Parole as a sex offender, and "subject to certain
requirements as a sex offender, such as registration and
things of that nature." Frazier confirmed he was asking
the trial court to accept his plea "pursuant to the
Alford case" on the two separate counts of statutory
sodomy in the second degree, and follow the State's
trial court accepted Frazier's Alford pleas,
made "a finding of [Frazier]'s guilt as to each of
the two separate counts of statutory sodomy in the second
degree, and sentenced Frazier pursuant to the State's
October 27, 2015, a probation revocation hearing was held.
Frazier waived his right to a formal hearing, and admitted to
violating his probation. The trial court announced that
Frazier had previously "pled guilty to the two amended
counts of statutory sodomy" and was given probation, but
was in violation of that probation because he went to
Arkansas without notifying his probation officer, and
"actually committed a new offense of possession of a
controlled substance" while there. The court then
revoked Frazier's probation and ordered execution of his
again confirmed that he was satisfied with plea counsel's
representation, that plea counsel had done what he asked, and
that he had ample opportunity to discuss his case with plea
counsel. The court found no probable cause existed that
Frazier received ineffective assistance of counsel. Frazier
was delivered to the DOC on October 30, 2015.
5, 2017, Frazier timely filed an amended Rule 24.035
motion. In the motion, Frazier asserted, in
relevant part, that: (1) plea counsel was ineffective for
advising him to enter an Alford plea where the terms
of his probation included the completion of the Missouri Sex
Offender Program ("MOSOP"), which would require an
admission of guilt to the facts constituting the offenses;
and (2) that his sentence was illegal because MOSOP
conditioned parole on Frazier's admission of guilt,
thereby depriving him of his right to free speech and his
right against self-incrimination.
evidentiary hearing on September 6, 2017, plea counsel
testified he explained to Frazier what an Alford
plea was, and recommended he take the plea. Plea Counsel
further explained to Frazier that if his probation was
revoked, Frazier would have to complete the MOSOP, and would
"have to admit his guilt to the underlying criminal
charges" to complete MOSOP. Plea counsel testified that
the charges put Frazier in a "tough spot" since
Frazier was looking at a life sentence on each of the initial
charges (statutory sodomy in the first degree), but indicated
that Frazier made the decision to enter Alford pleas
(for statutory sodomy in the second degree) and accept
testified he had prior convictions for "anywhere from
six to maybe eight prior drug offenses," "a third
degree assault one time," and "a [failure to pay]
child support." He admitted that he had been on
probation before (and violated such probation), and knew that
if he violated probation this time, he would go to prison.
Frazier admitted that plea counsel had explained an
Alford plea, and admitted that at the time of his
plea, the trial court also explained an Alford plea.
Frazier testified that if he had understood he had to
complete MOSOP to be eligible for parole, he would not have
taken the Alford plea, but instead "would have
waited and seen if they would offer a better deal or maybe
took it to trial."
January 25, 2018, the motion court issued findings of fact
and conclusions of law, rejecting Frazier's amended Rule
24.035 motion. The motion court found that Frazier had been
clearly advised of the nature of an Alford plea and
the consequences thereof. The motion court also found that
Frazier affirmed he understood the meaning of an
Alford plea, it was the type of plea he wished to
enter, it was in his best interest to so plead, and he was
entering the plea of his own free will.
motion court noted Frazier's argument that he would be
required to admit guilt to complete the MOSOP program,
pursuant to section 589.040. The motion court rejected this
argument, reasoning that no statute or court order required
Frazier to "admit guilt to the facts of the underlying
charge"; that the trial court was not required to list
every rule regulation or statute that would control when the
DOC released inmates; and parole or conditional release was
not a constitutional right.
motion court further found that plea counsel had not failed
to do anything that affected Frazier's rights or
prejudiced him; and Frazier failed to establish that but for
any claimed error on the part of plea counsel, he would not
have entered Alford pleas and would have insisted on
going to trial. This appeal followed.
points on appeal, Frazier asserts the motion court clearly
erred in denying his amended Rule 24.035 motion in that
"his sentence is illegal because his parole is
conditioned on an admission of guilt of the underlying
offenses even though he entered an Alford
plea;" and "plea counsel was ineffective for
advising  Frazier to enter Alford pleas despite
knowing that he would have to admit guilt as a prerequisite
Standard of Review
This Court's review of a motion court's ruling on a
Rule 24.035 motion for postconviction relief is limited to a
determination of whether the findings and conclusions of the
motion court are clearly erroneous. A motion court's
findings and conclusions are clearly erroneous if, after a
review of the entire record, the ...