FROM THE CIRCUIT COURT OF THE CITY OF ST. LOUIS The Honorable
Steven Ohmer, Judge
Brent Powell, Judge
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,
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.
and Procedural Background
Johnson and Cleophus King were charged with the murder of a
local attorney in the city of St. Louis. 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.
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.
indicated these facts, as recited by the State, were correct.
He also denied there were any threats made to induce his
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.
filed a timely motion for postconviction relief. In his
amended motion, Johnson sought postconviction relief on three
specific grounds. 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. 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.
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.
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).
seeks postconviction relief pursuant to Rule 24.035,
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.
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.
Johnson was not coerced into accepting the State's plea
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.
Counsel did not threaten Johnson
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.
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.
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
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
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
Counsel did not erroneously advise Johnson that he was
eligible for the death penalty
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
intellectually disabled offenders violates the Eighth
Amendment's prohibition of cruel and unusual punishment.
See Atkins v. Virginia, 536 U.S. 304, 321
(2002) 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.
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 (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).
"[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.
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. 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.
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
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).
Johnson was competent to plead guilty
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).
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.
Counsel was not ineffective for declining to seek a second
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.
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[.]
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
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."
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
The dissenting opinion
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. 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
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.
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.
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.
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.
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.
the motion court did not clearly err overruling Johnson's
Rule 24.035 motion, the motion court's judgment is
Wilson, Russell, and Fischer, JJ., concur;
J. dissents in separate opinion filed; Draper, C. J. and
Breckenridge, J, concur in opinion of Stith, J.
Denvir Stith, Judge
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. 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.
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
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").
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.
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.
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.
MR. JOHNSON PRESERVED HIS CLAIM FOR APPEAL
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."
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
motion court, Mr. Johnson made the following argument in his
motion under Rule 24.035, an argument ignored here by the
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 ...