DePriest v. State

510 S.W.3d 331, 2017 WL 770975
CourtSupreme Court of Missouri
DecidedFebruary 28, 2017
DocketNo. SC 95483, No. SC 95484
StatusPublished
Cited by17 cases

This text of 510 S.W.3d 331 (DePriest v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
DePriest v. State, 510 S.W.3d 331, 2017 WL 770975 (Mo. 2017).

Opinions

PER CURIAM

David and Natalie DePriest appeal from the motion court’s judgments overruling, without evidentiary hearings, their separate Rule 24.035 motions for post-conviction relief. Both alleged they had received ineffective assistance of counsel in pleading guilty due to an actual conflict of interest arising out of trial counsel’s dual representation of the DePriests during plea negotiations and subsequent guilty pleas. In their amended motions, the DePriests separately requested evidentiary hearings. The motion court overruled each of the DePriests’ motions without evidentiary hearings. This Court has jurisdiction over the appeals pursuant to article V, section 10, of the Missouri Constitution. The motion court’s judgments are vacated, and these cases are remanded for further proceedings.

1. FACTUAL AND PROCEDURAL HISTORY

The DePriests are brother and sister. After a maintenance man reported a marijuana-growing operation in their apartment, the police searched it and seized several plants, seedlings, packages of marijuana, and a firearm.1 David and Natalie were charged separately with: (1) producing a controlled substance by cultivating more than five grams of marijuana under section 195.211,2 (2) possession of a controlled substance with intent to distribute under section 195.211, and (3) unlawful [334]*334possession of a weapon under section 571.020. The DePriests were represented by the same counsel throughout their separate criminal proceedings.

The state offered a joint plea deal to the DePriests of 10 years’ imprisonment with the possibility of probation if they successfully completed a program of shock incarceration under section 559.115. In response, defense counsel wrote a joint letter to the DePriests advising them both not to take the offer. In so doing, he acknowledged that the strength of the state’s case against Natalie was much weaker than its case against David, stating: “I really do not see how the Prosecutor thinks he has any case against [Natalie] for cultivation. Even the charge of possession against Natalie may be rather weak .... ”

Defense counsel then filed motions to suppress evidence in both cases and requested a joint preliminary hearing at which to present those motions. In response, the state sent a letter to defense counsel withdrawing the earlier plea offer. Later, the state made a new joint plea offer, this time proposing 15-year sentences with the possibility of probation under section 559.115 for both David and Natalie. Defense counsel rejected this offer and proposed, instead, suspended impositions of sentence for both defendants. The state declined and stated that no further joint offers would be forthcoming.

David and Natalie were not incarcerated during these initial plea negotiations. During the negotiations, however, Natalie was charged with an unrelated misdemeanor for passing a bad check. Based on that charge, the state moved to revoke Natalie’s bond in the present case. The state then sent defense counsel a plea offer for Natalie alone. The prosecutor offered Natalie a better deal if she would testify against her brother, at the same time noting that this created a conflict of interest between counsel’s representation of David and Natalie and that the state might move for disqualification, writing:

[The state] will recommend 15 years pursuant to 559.115. [The state] will dismiss the other two counts against her. ... However, should she not wish to accept the deal ,.. [the state] will then be making an offer to you to have her testify against her brother and while you may assert that she does not wish to do so [the state] will also be filing a motion to disqualify you as you would not be able to successfully represent her and her brothers [sic] interest.

Defense counsel wrote Natalie and advised her not to accept this offer. Defense counsel recommended that Natalie instead continue pursuing a suspended imposition of sentence. Defense counsel also wrote to David and explained that he understood the state would reinstate Natalie’s bond (pending sentencing) only if both DePri-ests pleaded guilty with 15-year sentences subject to the possibility of probation under section 559.115. Counsel did not withdraw, and the state did not seek to disqualify him.

In August 2013, the DePriests jointly pleaded guilty on counsel’s recommendation. David pleaded guilty to all three counts (i.e., producing a controlled substance, possessing a controlled substance with intent to distribute, and unlawful possession of a weapon). Natalie, however, pleaded guilty only to the first two counts, and the weapons charge against her was dismissed. Both were “open” guilty pleas; the state had not agreed to binding or nonbinding sentencing recommendations. At the plea hearing, the following exchange took place:

Defense Counsel: David’s plea is an open plea, except ... that it was contingent on both defendants pleading guilty; in other words, the offer to Natalie was [335]*335contingent on David pleading guilty. So [David] is relying on the agreement in [Natalie’s] case. There is no agreement as to disposition of his case.
Assistant Prosecuting Attorney: There is no plea bargain.
Trial Court: There is no plea bargain.
Assistant Prosecuting Attorney: [The prosecuting attorney] wanted both defendants dealt with. [He] wanted both defendants dealt with today.
Trial Court: Okay. That’s what we’re doing. But there is no—there is no plea bargain agreement. It’s an open plea. Assistant Prosecuting Attorney: With respect to David Depriest, right. With respect to Natalie Depriest—
Trial Court: Let’s go to Natalie Depri-est.
Assistant Prosecuting Attorney: With respect to Natalie Depriest’s case, she’s pleading open to Counts I and II. All other counts and case [sic] against her are dismissed. And as a side agreement, her bond, we’ll agree that her bond can be reinstated [pending sentencing in the present case].

Later in the same hearing, the following exchange occurred:

Trial Court: Do you understand by my accepting your pleas of guilty, I am agreeing to be bound by the terms of your plea bargain agreements, which means, basically, if you have an agreement, which you two don’t because you have open pleas, that I will be bound by the terms of the agreement?
David Depriest: [No Response.]
Natalie Depriest: [No response].

The DePriests pleaded guilty at a group plea hearing. The court entered guilty pleas for a total of seven defendants simultaneously. The court advised the seven defendants of their rights as a group and questioned them as a group. The court took their pleas moving down the line of defendants. It made no inquiry into the possibility of a conflict of interest due to counsel’s joint representation of Natalie and David, although it was evident at the hearing that they were represented by the same counsel and received the same plea deal even though they played different roles in the crimes to which they pleaded guilty.

The trial court accepted both DePriests’ pleas.

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Bluebook (online)
510 S.W.3d 331, 2017 WL 770975, Counsel Stack Legal Research, https://law.counselstack.com/opinion/depriest-v-state-mo-2017.