Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Johnson v. State

Supreme Court of Missouri, En Banc

October 1, 2019

RONALD JOHNSON, Appellant,
v.
STATE OF MISSOURI, Respondent.

          APPEAL FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS The Honorable Steven Ohmer, Judge

          W. Brent Powell, Judge

         Ronald Johnson pleaded guilty to one count of first-degree murder, one count of first-degree robbery, and two counts of armed criminal action. The circuit court sentenced him to life imprisonment without the possibility of parole. Johnson moved for postconviction relief pursuant to Rule 24.035, [1] arguing his counsel was ineffective and, therefore, his plea was not entered knowingly and voluntarily. The motion court overruled his motion after an evidentiary hearing. Because Johnson has not established his counsel was ineffective or his plea was entered unknowingly and involuntarily, the motion court's judgment is affirmed.

         Factual and Procedural Background

         Ronald Johnson and Cleophus King were charged with the murder of a local attorney in the city of St. Louis.[2] The State possessed an audio recording that documented the crime as it occurred. Before trial, the State offered Johnson a plea agreement in which the State would abandon seeking the death penalty in exchange for his guilty plea. Given the heinous nature of the alleged crimes and the significant evidence of Johnson's guilt possessed by the State, his counsel advised him he could receive the death penalty if he took his case to trial.

         Johnson ultimately accepted the State's offer. At his plea hearing, the circuit court asked Johnson if he understood the charges against him, if he had time to discuss his case with his attorney, and whether he wished to plead guilty. Johnson affirmed he understood the charges, adequately discussed the case with his attorney, and wished to plead guilty. Johnson also affirmed he fully understood the nature of the proceedings against him and he had no mental disabilities that would impair his ability to aid in his defense. The circuit court informed Johnson of the rights he would waive by pleading guilty. Johnson indicated he understood he forfeited those rights by pleading guilty and desired to do so. The State recited the following factual basis to support the guilty plea:

Judge, had this matter gone to trial, the state would have proven beyond a reasonable doubt, with readily available witnesses and competent evidence that between March 6, 2008, and March 8, 2008, here in the City of St. Louis, specifically at the home of Cleophus King at 5726 Waterman, [Johnson], acting with Cleophus King, knowingly caused the death of [Victim], a friend and acquaintance of [Johnson], that they caused [Victim's] death by strangling, stabbing, and beating him, and that they used a knife, multiple knives, weapons, and an extension cord on [Victim].
In the course of that, that [Johnson], acting with Cleophus King, stole and robbed [Victim] of his wallet, keys to his jeep, and that they subsequently went and took those items and the victim's jeep and used the victim's credit cards contained within his wallet to purchase items. And that after killing [Victim] that night, they took his body, wrapped him up and dumped him over in Illinois.

         Johnson indicated these facts, as recited by the State, were correct. He also denied there were any threats made to induce his guilty plea.

         The circuit court then asked Johnson about his satisfaction with his plea counsel's performance, to which Johnson indicated he was satisfied with his counsel and his counsel had done what Johnson asked him to do. The circuit court accepted Johnson's guilty plea, finding it to be knowing and voluntary, and imposed a sentence of life without the possibility of parole pursuant to the plea agreement.

         Johnson filed a timely motion for postconviction relief. In his amended motion, Johnson sought postconviction relief on three specific grounds.[3] Johnson argued he was coerced into pleading guilty by the threat of receiving the death penalty when he was ineligible for such punishment due to intellectual disability; he was not competent at the time of his plea and will never be competent; and his counsel was ineffective for failing to challenge the State's competency evaluation and request an independent evaluation.[4] The motion court conducted an evidentiary hearing, at which Johnson introduced evidence about his low IQ and threats made by his plea counsel that caused him to believe he would receive the death penalty if he took his case to trial even though his low IQ made him ineligible to receive the death penalty. Johnson argued his low IQ made him incompetent to enter his plea, and he would never be competent to enter a guilty plea due to his intellectual disability. At the hearing, Johnson also faulted his counsel for not challenging the State's competency evaluation and not seeking and obtaining an independent evaluation.

         Johnson's plea counsel testified he believed Johnson was intellectually slow, but he did not believe Johnson was intellectually disabled based on his interactions with Johnson. Johnson's counsel also denied encouraging Johnson to accept the State's offer or threating that Johnson would receive the death penalty if convicted by a jury. Johnson's counsel instead testified he advised Johnson only of the potential consequences of taking his case to trial, namely, that he could receive the death penalty if he did not accept the State's plea offer. Johnson's counsel testified Johnson decided to accept the plea offer and plead guilty after lengthy discussions with his family. The motion court found Johnson's plea counsel credible, specifically rejecting Johnson's allegation that counsel threatened he would receive the death penalty if the case proceeded to trial, and overruled Johnson's motion for postconviction relief. Johnson appealed, and this Court ordered transfer pursuant to Rule 83.04.

         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.'" Latham v. State, 554 S.W.3d 397, 401 (Mo. banc 2018) (quoting Rule 24.035(k)) (alterations in original). "A motion court's findings and conclusions are clearly erroneous if, after a review of the entire record, the court is left with the definite and firm impression that a mistake has been made." Id. (internal quotations omitted).

         Analysis

         Johnson seeks postconviction relief pursuant to Rule 24.035, [5] alleging his plea counsel was ineffective for advising him to accept the plea agreement. "If conviction results from a guilty plea, any claim of ineffective assistance of counsel is immaterial except to the extent that it impinges the voluntariness and knowledge with which the plea was made." Cooper v. State, 356 S.W.3d 148, 153 (Mo. banc 2011). To prove his counsel was ineffective, Johnson must show "(1) counsel's performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney and (2) he was thereby prejudiced." Webb v. State, 334 S.W.3d 126, 128 (Mo. banc 2011). "To show prejudice in a guilty plea case, a defendant must prove that, but for the errors of counsel, he would not have pleaded guilty and would have demanded trial." Cooper, 356 S.W.3d at 153.

         On appeal, Johnson asserts three grounds for relief. First, Johnson argues he was coerced into accepting the State's plea offer when his plea counsel threatened he could receive the death penalty if he took his case to trial. Second, Johnson argues he was incompetent to plead guilty because of his intellectual disability, and that he will never be competent to plead guilty due to his low IQ. Third, Johnson alleges his counsel was ineffective for failing to challenge the State's competency evaluation.

         I. Johnson was not coerced into accepting the State's plea agreement

         "[A] guilty plea must be a voluntary expression of the defendant's choice, and a knowing and intelligent act done with sufficient awareness of the relevant circumstances and likely consequences." Cooper, 356 S.W.3d at 153. "A plea of guilty is not made voluntarily if the defendant is misled or is induced to plead guilty by fraud or mistake, by misapprehension, fear, persuasion, or the holding out of hopes which prove to be false or ill founded." Drew v. State, 436 S.W.2d 727, 729 (Mo. 1969) (internal quotations omitted). The record in this case refutes Johnson's assertion that his counsel threatened him or provided any "false or ill-founded" advice. Id.

         a. Counsel did not threaten Johnson

         In his first point, Johnson argues he was coerced into accepting the State's offer by counsel's alleged threat that he could receive the death penalty if he took his case to trial. Johnson argues this constituted coercion in that his fear of receiving the death penalty induced him to plead guilty.

         "[T]he test of whether a plea is voluntarily and intelligently made is not whether a particular ritual is followed or whether each and every detail is explained to a defendant but whether the plea in fact is intelligently and voluntarily made." McMahon v. State, 569 S.W.2d 753, 758 (Mo. banc 1978). In claiming his plea was coerced by his plea counsel's alleged threat, Johnson must show he was "induced to plead guilty by fraud or mistake, by misapprehension, fear, persuasion, or the holding out of hopes which prove to be false or ill founded." Drew, 436 S.W.2d at 729. The record in this case refutes Johnson's assertion that his counsel made any threats that caused him to plead guilty due to "misapprehension" or "fear." Id.

         Although Johnson alleged his counsel threatened he would receive the death penalty at trial, the motion court did not find Johnson's allegation credible. Johnson testified he pleaded guilty to avoid the death penalty, but Johnson's counsel specifically denied telling Johnson he would definitely receive the death penalty if he went to trial. In other words, Johnson's counsel merely informed Johnson of the potential consequences of rejecting the State's offer and going to trial. The motion court found the testimony of Johnson's counsel credible. "This Court defers to 'the motion court's superior opportunity to judge the credibility of witnesses.'" McFadden v. State, 553 S.W.3d 289, 298 (Mo. banc 2018) (quoting Barton v. State, 432 S.W.3d 741, 760 (Mo. banc 2014)).

         Although the death penalty is "the most extreme sanction available to the State," State ex rel. Simmons v. Roper, 112 S.W.3d 397, 406 (Mo. banc 2003), the fact that the maximum authorized punishment for a certain crime may be a threatening alternative in itself does not render a plea involuntary. Jackson v. State, 585 S.W.2d 495, 497 n.2 (Mo. banc 1979). In Rice v. State, 585 S.W.2d 488, 493 (Mo. banc 1979), this Court held the circuit court's explanation to the defendant that a jury could sentence him "to the penitentiary for any number of years … a hundred years" did not coerce the defendant to plead guilty to a charge of murder in the second degree because it was an accurate representation of the maximum authorized punishment for that crime. Although the circuit court's description of the maximum punishment the defendant faced may have frightened him, this Court held the circuit court's explanation of the range of punishment, even when couched in somewhat hyperbolic terms, did not constitute coercion when the explanation did not exaggerate the maximum authorized punishment. See id.; see also Burks v. State, 490 S.W.2d 34, 35 (Mo. 1973) (holding the assistant prosecutor's statement that if the defendant took the case to trial, the prosecutor would "make sure that [Burks] got so much time, that [he] wouldn't get out [for] a real long time" did not constitute coercion).

         Here, Johnson testified he pleaded guilty to avoid the death penalty, suggesting he was, at least in part, intimidated by the thought of being sentenced to death. But "fear that the death penalty might be imposed [does not] render a plea vulnerable to such an attack." Jackson, 585 S.W.2d at 497 n.2; see also Rice, 585 S.W.2d at 493. What is more, the record as a whole supports a finding that Johnson was neither threatened nor coerced into pleading guilty. The record demonstrates Johnson understood all the rights attendant to trial he would waive by entering a guilty plea. He also understood the nature of the proceedings against him, the crimes he was charged with committing, and the potential consequences he faced. The record shows Johnson was able to articulate thoughts, feelings, and positions about various matters throughout the course of his prosecution and also that he could rationally weigh options and make decisions he believed were in his best interest. Finally, Johnson denied during his guilty plea hearing that any threats were made to induce his plea. Based on this record and the testimony of Johnson's plea counsel at the motion hearing, the motion court did not clearly err by finding the evidence refuted Johnson's allegation that he was threatened into entering his plea of guilty to avoid the death penalty.

         b. Counsel did not erroneously advise Johnson that he was eligible for the death penalty

         Johnson also argues his plea was unknowing and involuntary because his counsel erroneously advised him that he could receive the death penalty at trial. Johnson claims his counsel was ineffective in giving this advice because Johnson was categorically ineligible for the death penalty by virtue of his intellectual disability. Johnson argues, therefore, he was coerced into pleading guilty by counsel's erroneous advice.

         Executing intellectually disabled offenders violates the Eighth Amendment's prohibition of cruel and unusual punishment. See Atkins v. Virginia, 536 U.S. 304, 321 (2002)[6] In Atkins, the United States Supreme Court reasoned, "Because of their disabilities in areas of reasoning, judgment, and control of their impulses … [intellectually disabled offenders] do not act with the level of moral culpability that characterizes the most serious adult criminal conduct." Id. at 306. The Supreme Court held the abolition of the death penalty for intellectually disabled offenders by multiple jurisdictions in the United States demonstrated a national consensus "that today our society views [intellectually disabled] offenders as categorically less culpable than the average criminal." Id. at 316.

         But a finding of intellectual disability is not automatic. See State v. Johnson, 244 S.W.3d 144 (Mo. banc 2008). Rather, the factfinder must affirmatively find a defendant is intellectually disabled. See id. at 150. The burden of proving intellectual disability is on the defendant. Id. at 151. Until a capital defendant is adjudged to be intellectually disabled, he remains eligible for the death penalty unless the State waives the death penalty. See §§ 565.005.1, 565.020.2[7] (prescribing the maximum punishment for murder in the first degree as "either death or imprisonment for life without eligibility for probation or parole" and the maximum punishment remains death whenever "the death penalty is not waived" by the State).

         Importantly, "[a]n attorney has an obligation to inform his client of the possible range of punishment of the offense to which he pleads." Rice, 585 S.W.2d at 493. Because the trier of fact never adjudicated Johnson to be intellectually disabled, his counsel was, in fact, required to inform him that he was eligible to receive the death penalty upon conviction of murder in the first degree. Id. Although Johnson introduced evidence at the hearing on his postconviction motion that he was intellectually disabled, no court or jury ever considered this evidence for the purpose of adjudicating Johnson to be intellectually disabled or made an affirmative finding that Johnson was, in fact, intellectually disabled. Without an affirmative finding of intellectual disability, and because the State had not yet waived the death penalty, Johnson was eligible to receive the death penalty upon conviction of murder in the first degree. See §§ 565.005.1, 565.020.2. Accordingly, not only was Johnson's counsel correct to advise him he could receive the death penalty if he took his case to trial, but Johnson's counsel also had a duty to so inform him because he was not categorically ineligible to receive the death penalty. See Rice, 585 S.W.2d at 493.

         While Johnson's counsel could have more fully investigated Johnson's intellectual capacity and advised Johnson of this defense, any additional investigation or advice by counsel bears no direct correlation to Johnson's decision to accept the State's offer and plead guilty.[8] Johnson testified that he would not have pleaded guilty had he known he was ineligible for the death penalty due to intellectual disability, but Johnson also testified as follows at the motion hearing:

Q. Did you plead guilty to avoid the death penalty?
A. Yes, ma'am.

         As explained above, it would have been up to a judge or jury to find that Johnson was intellectually disabled and, therefore, ineligible for the death penalty. In other words, no amount of additional investigation would have changed the fact that Johnson had not yet been adjudicated as intellectually disabled. Because there had been no finding that Johnson was intellectually disabled, whether Johnson remained eligible for the death penalty was solely within the State's control. See § 565.005.1. If Johnson's ultimate reason for pleading guilty was to avoid receiving the death penalty, as he testified it was, then any additional investigation and advice from counsel regarding his eligibility for the death penalty would not have affected his decision to accept the State's offer and plead guilty.

         Further, Johnson presents no evidence that the State would have held open or extended the same plea offer if Johnson would have pursued the affirmative defense of intellectual disability and been unsuccessful. Accepting the State's plea offer, therefore, was the only way for Johnson to definitively ensure he would not receive the death penalty as punishment for murder in the first degree. Because the advice of Johnson's counsel "was within the range of competence demanded of attorneys in criminal cases," the motion court did not clearly err by denying postconviction relief. Hill v. Lockhart, 474 U.S. 52, 56 (1985).

         II. Johnson was competent to plead guilty

         Johnson argues he was not competent to plead guilty when he entered his plea and he will never be competent to plead guilty because of his limited intellectual capacity. "The standard for determining a defendant's competence to plead guilty is essentially the same as that for determining if a defendant is competent to proceed to trial." State v. Hunter, 840 S.W.2d 850, 863 (Mo. banc 1992). "An accused is competent to stand trial or plead guilty if he can rationally consult with counsel and the court and understands the proceedings against him." Id. Some degree of intellectual disability does not automatically render a defendant incapable of knowingly and voluntarily pleading guilty. Wilson v. State, 813 S.W.2d 833, 835 (Mo. banc 1991); see also Pulliam v. State, 480 S.W.2d 896, 904 (Mo. 1972); Evans v. State, 467 S.W.2d 920, 923 (Mo. 1971); State v. Lowe, 442 S.W.2d 525, 529-30 (Mo. 1969).

         At the hearing on his postconviction motion, Johnson introduced evidence establishing he had an IQ of 63. Johnson also adduced expert testimony that tended to show, while he was capable of conversing with his attorney, he did not possess the intellectual capacity to meaningfully assist his attorney in his defense. On the other hand, Johnson's plea counsel testified Johnson was able to repeat and rephrase information he told Johnson, demonstrating Johnson understood the nature of the proceedings and could assist in his defense. Additionally, Dr. Michael Armour, a psychologist employed by the department of mental health, performed a competency exam on Johnson pursuant to § 552.020 and concluded he was competent to stand trial. The motion court found Dr. Armour was a proficient psychologist, whose exam was reliable, and Johnson's evidence was inadequate to undermine Dr. Armour's conclusion. "This Court defers to the 'motion court's superior opportunity to judge the credibility of witnesses.'" McFadden, 553 S.W.3d at 298 (quoting Barton, 432 S.W.3d at 760). Because there was evidence tending to show Johnson was able to understand the proceedings against him and assist in his defense, it was not clear error to find Johnson was competent to enter a guilty plea.

         III. Counsel was not ineffective for declining to seek a second competency examination

         Johnson also alleges his plea counsel was ineffective for failing to challenge Dr. Armour's competency examination and declining to seek a second competency evaluation after Dr. Armour opined Johnson was competent to enter a guilty plea. Johnson argues Dr. Amour's exam was facially deficient and counsel should have sought a second, independent examination before allowing his case to proceed.

         Whether a defendant possesses the mental fitness to proceed in a criminal prosecution is a preliminary question for the judge to address. See § 552.020.2; see also Baird v. State, 906 S.W.2d 746, 749 (Mo. App. 1995). Section 552.020.2 states in pertinent part:

Whenever any judge has reasonable cause to believe that the accused lacks mental fitness to proceed, the judge shall, upon his or her own motion or upon motion filed by the state or by or on behalf of the accused, by order of record, appoint one or more private psychiatrists or psychologists … to examine the accused; or shall direct the director to have the accused so examined[.]

         These protections ensure only those defendants who understand the proceedings against them and are able to aid in their own defense stand trial. See § 552.020.1; Medina v. California, 505 U.S. 437, 448 (1992) ("If a defendant is incompetent, due process considerations require suspension of the criminal trial until such time, if any, that the defendant regains the capacity to participate in his defense and understand the proceedings against him."). Although defendants may request a second competency evaluation and receive one at their own expense, defense counsel is not ineffective for failing to request a second evaluation solely because the first exam found the defendant competent to proceed. See Goodwin v. State, 191 S.W.3d 20, 30 n.6 (Mo. banc 2006); see also Bass v. State, 950 S.W.2d 940, 947 (Mo. App. 1997) (collecting cases that hold "counsel is not ineffective for failing to request a second mental examination just because the first examination found the defendant competent").

         Dr. Armour performed a competency evaluation on Johnson pursuant to § 552.020. Dr. Armour concluded Johnson did not suffer any mental disease or defect and that he was not intellectually disabled to an extent that limited his ability to understand the proceedings against him or to assist in his own defense. The motion court found this report persuasive. Johnson's counsel testified his interactions with Johnson gave him no reason to question the expert's conclusion that Johnson was competent to plead guilty. Johnson's counsel also testified he had extensive experience using § 552.020 competency evaluations prepared by the department and he had never had any reason to doubt the quality of the department's reports. Although Johnson presented expert testimony that criticized the methods Dr. Armour used in concluding Johnson was competent to plead guilty, the motion court found this testimony unpersuasive and concluded it was insufficient to undermine Dr. Armour's finding of competence. The motion court found Dr. Armour was a capable and respected professional and that it was reasonable for Johnson's plea counsel to rely on Dr. Armour's conclusion. The motion court found a different evaluation "would merely result in a battle of the experts as opposed to a conclusive finding."

         Johnson also attempts to fault his plea counsel for not recognizing Johnson's perceived intellectual disabilities on his own. In making this argument, Johnson necessarily contends his counsel should have rejected Dr. Armour's conclusions despite the motion court finding it was reasonable for Johnson's plea counsel to rely on Dr. Armour's report. "Absent a perceived shortcoming in a mental evaluation report or a manifestation of a mental disease or defect not identified by a prior report, an attorney representing a defendant in a criminal case is not compelled to seek further evaluation." Gooden v. State, 846 S.W.2d 214, 218 (Mo. App. 1993) (citing Sidebottom v. State, 781 S.W.2d 791, 797 (Mo. banc 1989)). Because the record contains competent evidence to support the motion court's finding that Johnson's counsel was not ineffective for declining to seek a second competency evaluation, the denial of postconviction relief was not clearly erroneous.

         IV. The dissenting opinion

         The dissenting opinion raises concerning issues about the representation Johnson received; however, because Johnson did not raise any of the issues, they are not before the Court. At its core, the dissenting opinion contends Johnson is ineligible to receive the death penalty because he is intellectually disabled and, had his plea counsel so advised him, he would not have pleaded guilty. But this is not Johnson's claim on appeal. The issue in this case is not whether Johnson was intellectually disabled.[9] Nor is the issue whether his plea counsel was ineffective for failing to investigate Johnson's intellectual disability or whether his counsel should have informed him of or pursued this defense. Johnson either did not seek postconviction relief on these grounds or failed to preserve the ground for appeal. Rather, the only issues in this case are those Johnson specifically raised in his Rule 24.035 motion and raised again in his appeal. Those claims are Johnson was coerced into entering his plea of guilty by a threat of receiving the death penalty if he took his case to trial; Johnson was incompetent to enter a plea of guilty; and his counsel was ineffective for failing to challenge his § 552.020 competency evaluation.

         The dissenting opinion spends considerable time analyzing Johnson's first point relied on, which states:

The motion court clearly erred when it denied [Johnson's] motion for post-conviction relief following a hearing because [Johnson] proved by a preponderance of the evidence that he was denied his right to effective assistance of counsel, due process of law, and freedom from cruel and unusual punishment, as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, § 10 and §18(a) of the Missouri Constitution, when his attorney coerced him to enter a plea of guilty to life without parole for murder in the first degree by using the threat of the death penalty to induce a plea. This is error in that a reasonably competent attorney would have known that [Johnson], who had a diagnosis of mental retardation, and whose IQ was listed as 53 in every record reviewed by plea counsel, was not eligible to be executed, and a reasonably competent attorney would not have informed [Johnson] he was at risk for the death penalty if he did not plead guilty. But for plea counsel's unreasonable advice and lack of knowledge, [Johnson] would not have been coerced into pleading guilty to a sentence of life without parole in a manner that was neither knowing, voluntary, nor intelligent.

(Emphasis added). Absent from this point is any claim Johnson's counsel was ineffective for failing to inform him of or implement any defense based on intellectual disability. All this point asserts is Johnson's counsel was ineffective for coercing him to enter a plea of guilty by informing Johnson he was at risk of receiving the death penalty when he was ineligible for such a sentence. For the reasons laid out above, however, Johnson remained eligible for the death penalty until he accepted the State's plea offer and entered his guilty plea.

         The dissenting opinion claims that, upon reading into the context, if not the substance of, Johnson's point relied on, he alleges he was threatened and coerced into entering the guilty plea because plea counsel "misinformed and misled" him on the availability of the defense of intellectual disability. But this is not the claim set out in Johnson's point relied on. Johnson claims he was "not eligible to be executed, and a reasonably competent attorney would not have informed [Johnson] he was at risk for the death penalty." This claim does not allege plea counsel misinformed or misled Johnson on the availability of the defense of intellectual disability.

         Johnson's point relied on does allege that his counsel was wrong to advise him that he was at risk of receiving the death penalty because he was ineligible for the death penalty. But, as explained above, because there was no affirmative finding of intellectual disability by a judge or jury, and the State had not yet waived the death penalty, plea counsel did not misinform Johnson that he was eligible to receive the death penalty or otherwise mislead him into erroneously believing he was eligible for that sentence. To the contrary, Johnson's plea counsel was duty-bound to advise Johnson he was eligible for the death penalty and could receive this punishment. Johnson's counsel, therefore, did not threaten, mislead, misinform, or otherwise coerce him into pleading guilty by explaining to Johnson that he was eligible to receive the death penalty.

         The dissenting opinion also spends considerable time laying out evidence that may support a finding of intellectual disability and, therefore, render Johnson ineligible for the death penalty. But to reiterate, Johnson does not claim in his point relied on that plea counsel was ineffective for failing to raise the defense of intellectual disability. Furthermore, neither the dissenting opinion, the motion court, nor Johnson can predict how the trier of fact would have decided this issue had Johnson raised it in the underlying action. One cannot predict what evidence, if any, the State would have presented in opposition to Johnson's position if he would have raised the defense of intellectual disability, and, as the dissenting opinion acknowledges, the trier of fact would have been free to believe or disbelieve the evidence of Johnson's disability. The dissenting opinion contends had Johnson's plea counsel raised the defense of intellectual disability, then he would not have alleged plea counsel was ineffective. But consider the opposite scenario. Had Johnson's counsel advised Johnson he should reject the State's plea offer because he is ineligible for the death penalty and instead rely on the defense of intellectual disability, and the defense failed, resulting in Johnson receiving the death penalty, Johnson may similarly have raised a claim of ineffective assistance of counsel due to the erroneous advice that Johnson was ineligible for the death penalty and not at risk of receiving the death penalty if he took his case to trial. This exercise illustrates the importance of avoiding speculation about issues not properly raised or briefed.[10]

         The Court's review is limited to the arguments Johnson expressly made in his points relied on. Despite the concerns raised by the dissenting opinion, those bases to reverse the motion court's denial of postconviction relief do not appear in Johnson's points relied on. To be sure, the Court is not commenting on the merits of the concerning issues the dissenting opinion raises regarding Johnson's representation. But the fact remains Johnson has failed to establish the motion court clearly erred by entering judgment against Johnson on any of the claims he specifically raised. The Court declines, as it should, to address issues Johnson, himself, did not raise.

         Conclusion

         Because the motion court did not clearly err overruling Johnson's Rule 24.035 motion, the motion court's judgment is affirmed.

          Wilson, Russell, and Fischer, JJ., concur;

          Stith, J. dissents in separate opinion filed; Draper, C. J. and Breckenridge, J, concur in opinion of Stith, J.

         DISSENTING OPINION

          Laura Denvir Stith, Judge

         The principal opinion misapprehends the nature of Ronald Johnson's central claim on appeal and, as a result, fails to address it, much less resolve it. Mr. Johnson's complaint is not that his counsel correctly told him he could receive a death sentence if convicted of first-degree murder. His complaint is that counsel failed to include critical additional information when Mr. Johnson was contemplating whether to accept a plea deal or go to trial. Defense counsel failed to inform Mr. Johnson the uncontested evidence showed his IQ was between 53 and 63, which uncontestably put him in the category of those considered intellectually disabled by clinicians. Defense counsel failed to tell him all of his records, from the age of 10 up to and including the findings of the state expert who performed the competency exam relied on by the prosecution, determined he was mentally retarded or intellectually disabled.[1] While, as the principal opinion notes, the jury was not required to accept this evidence, the record contained absolutely no contrary evidence other than evidence the United States Supreme Court has said cannot be considered. Mr. Johnson needed to be informed that if the jury agreed with all of the experts that he was intellectually disabled, the death penalty would be off the table. Only then could he make an informed and voluntary decision to plead guilty or go to trial.

         Instead, defense counsel misinformed and misled Mr. Johnson as to the availability of a defense that would preclude imposition of the death penalty. Moreover, counsel failed to inform him that evidence of his intellectual disability increased the likelihood the jury would accept a diminished capacity defense so that he might be convicted of a crime with a lesser level of intent such as second-degree murder or voluntary manslaughter. This is especially true in light of the evidence of his other mental illnesses, the fact he did not actually perform the murder, and the fact he was emotionally dependent on and dominated by the actual murderer.

         This was not a matter of trial strategy. In defense counsel's own words, "it just never even occurred to [him] to look" at intellectual disability as a defense, and he was not familiar with the law regarding intellectual disability or the fact it made the death penalty unavailable. He simply failed to understand the difference between being incompetent and being intellectually disabled. Defense counsel instead thought the fact Mr. Johnson was "a little slow" did not give him a legal defense because counsel's interactions with Mr. Johnson convinced him Mr. Johnson understood the nature of the proceedings. But the United States Supreme Court has specifically said that this type of evidence goes to competency, not intellectual disability, and that intellectual disability must be determined under clinical standards such as the DSM. Atkins v. Virginia, 536 U.S. 304, 318 (2002). The United States Supreme Court has twice reversed a death penalty conviction when a court based its determination of lack of intellectual disability on the court's personal observations of the defendant rather than on scientific and medical criteria. Moore v. Texas, 137 S.Ct. 1039, 1050 (2017) ("Moore I"); Moore v. Texas, 139 S.Ct. 666, 671 (2019) ("Moore II").

         This is more than a failure to investigate in the sense used by the principal opinion - defense counsel did not just fail to investigate or uncover Mr. Johnson's intellectual disability. He had evidence of it, yet failed to recognize the defense or to inform Mr. Johnson about it. Prior Missouri cases make clear this type of incompetence makes the plea involuntary. Further, this failure to inform was prejudicial because Mr. Johnson testified that, had he known of it, he would have rejected the plea offer of life without parole and proceeded to trial. There is no speculation about this testimony, and the motion court did not find this testimony was not credible.

         Instead, the motion court, and now the principal opinion, concludes simply that no one can reasonably refuse a plea when there is not a guarantee death is off the table. But that is not a decision for this Court, the motion court, or any court to make. It is for Mr. Johnson. The facts of this case are as close to a guarantee as one can get that death would be off the table, but, even were they less clear, that is Mr. Johnson's call to make.

         Indeed, the best evidence of the credibility of Mr. Johnson's claim he would have rejected the plea deal and gone to trial is before this Court today - Mr. Johnson is seeking to have his life without parole sentence set aside so he can go to trial even though the death penalty still, theoretically, is on the table. Mr. Johnson made this decision once he received the information counsel had failed to provide him about the undisputed evidence of his intellectual disability and the availability of that evidence as a means to avoid the death penalty. He is entitled to his day in court.

         I. MR. JOHNSON PRESERVED HIS CLAIM FOR APPEAL

         The principal opinion asserts Mr. Johnson did not preserve for review a claim his counsel failed to inform him of or implement an intellectual disability defense. This is incorrect. First, having raised the issue in the motion court, he was entitled to seek review on appeal. Rule 24.035(k) (providing for appellate review of an order sustaining or overruling a motion to determine "whether the findings and conclusions of the trial court are clearly erroneous"). The principal opinion says he failed to assert the issue in his points relied on before this Court, however, contending his first point is limited to Mr. Johnson arguing "he was coerced into accepting the State's offer by counsel's alleged threat that he could receive the death penalty if he took his case to trial."

         But a more complete reading of Mr. Johnson's first point relied on, and his argument in support in this Court, is that Mr. Johnson complains the coercion as to the threat of the death penalty arose because counsel misinformed and misled him about the availability of a defense of intellectual disability. As discussed below, I believe his first point relied on is more than adequate to preserve that issue on appeal. Even were that not the case, the principal opinion's refusal to contend with this issue in any manner on the merits is concerning. This Court could review it ex gratia, as it did in Wilkerson v. Prelutsky, 943 S.W.2d 643, 647 (Mo. banc 1997). Additionally, this Court could find that, having raised and fully briefed the issue in his amended Rule 24.035 motion and discussed it in detail in the argument portion of his first point relied on, Mr. Johnson is entitled to plain error review under Rule 84.13. The principal opinion's failure to offer such review itself constitutes a manifest injustice.

         In the motion court, Mr. Johnson made the following argument in his motion under Rule 24.035, an argument ignored here by the principal opinion:

RONALD WAS COERCED TO PLEAD GUILTY BASED ON A THREAT OF RECEIVING THE DEATH PENALTY WHEN HE WAS INELIGIBLE FOR THAT PUNISHMENT BECAUSE HE SUFFERS FROM MENTAL RETARDATION.
Ronald was denied effective assistance of counsel, due process, and was subjected to cruel and unusual punishment in violation of his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10, 18(a) and 21 of the Missouri Constitution in that his trial counsel, Cleveland Tyson, coerced him into pleading guilty by the threat of the state seeking the death penalty if he were to take the case to trial. Ronald's guilty pleas were not voluntarily, knowingly and intelligently made because they were the result of plea counsel's use of coercion to pressure Ronald into entering his pleas of guilty because the state could not sentence a man suffering from mental retardation to death. Counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would have exercised ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.