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Frazier v. State

Court of Appeals of Missouri, Southern District, Second Division

May 21, 2019

DALE FRAZIER, Movant-Appellant,
STATE OF MISSOURI, Respondent-Respondent.

          APPEAL FROM THE CIRCUIT COURT OF NEW MADRID COUNTY Honorable W. Keith Currie, Judge.

          WILLIAM W. FRANCIS, JR., P.J.

         Dale Frazier ("Frazier") appeals from the judgment of the motion court denying his amended Rule 24.035[1] 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[2] 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.

         Facts and Procedural Background

         In 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.

         Frazier 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 second degree.

         A plea 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?

         Frazier 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.

         Frazier 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.

         Pursuant 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 sentencing recommendation.

         The 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 recommendation.

         On 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 sentences.

         Frazier 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.

         On June 5, 2017, Frazier timely filed an amended Rule 24.035 motion.[3] 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.

         At the 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 probation.

         Frazier 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."

         On 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.

         The motion court noted Frazier's argument that he would be required to admit guilt to complete the MOSOP program, pursuant to section 589.040.[4] 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.

         The 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.

         In two 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 for parole[.]"

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 ...

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