In the Missouri Court of Appeals Eastern District DIVISION TWO
SUSAN J. ARMANTROUT, ) No. ED109942 ) Appellant, ) Appeal from the Circuit Court ) of Madison County v. ) Cause No. 20MD-CC00196 ) STATE OF MISSOURI, ) Honorable Jerel Lee Poor II ) Respondent. ) Filed: September 13, 2022
Introduction
This case involves the distinctive situation of a mother and son who were co-
defendants and entered contemporaneous guilty pleas, allegedly pursuant to a joint plea
agreement. Here, in addition to Movant’s claim of ineffective assistance of counsel, we
face the issue of how specifically a plea court accepting guilty pleas of co-defendants who
are family members must inquire into the plea agreement in order to ensure voluntariness
of the pleas.
Susan J. Armantrout 1 (Movant) appeals the motion court’s judgment denying her
motion to vacate her guilty plea under Rule 24.035 without an evidentiary hearing. Movant
1 Movant was charged as Susan J. Armantrout, but she filed a petition to enter a guilty plea that listed her name as Susan J. Skaggs. At the guilty-plea hearing, Movant’s attorney informed the court that her legal name is Susan J. Skaggs, and Susan J. Armantrout is an alias. argues she alleged facts unrefuted by the record that, if true, would establish her plea was
involuntary because her plea counsel failed to inform her of a change in her plea agreement
in the days prior to her guilty plea. Specifically, she alleged plea counsel failed to inform
her that she was no longer required to plead guilty in order for her son as a co-defendant to
receive a more favorable sentence. Appellant alleged that had she known of the change in
her plea agreement, she would not have pled guilty but would have proceeded to trial. We
reverse and remand for an evidentiary hearing.
Background
The State charged Movant with first-degree murder (Count I), armed criminal
action (Count II), and abandonment of a corpse (Count III), for killing her husband and
later transporting his body to a storage unit. The State also charged Movant’s son, Anthony
Skaggs (Skaggs), with tampering with physical evidence and abandonment of a corpse for
his involvement in the same incident. Pursuant to a plea agreement, Movant pled guilty to
first-degree murder with a sentence of life in prison without the possibility of probation or
parole, and the State dismissed the two other remaining charges. The same day, Skaggs
pled guilty to tampering with physical evidence, the State dismissed the charge of
abandonment of a corpse, the trial court sentenced him to time served, and Skaggs was
released from jail.
Movant filed a motion under Rule 24.035, and later an amended motion through
counsel, arguing that her guilty plea was involuntary. She alleged that the State had
originally made a joint plea offer to Movant and her son, which contained the condition
that if Movant pled guilty to murder in the first degree, her son would receive a sentence
of time served for his guilty plea. Movant alleged that she had discussed this condition
2 with her plea counsel, and counsel “researched the legality of it, ultimately concluding that
while it was unfair, it was legal.” Movant alleged she told her counsel that she wished to
plead guilty because she wanted her son to be released with time served upon his guilty
plea. Movant further alleged that two days before the plea hearing, the State amended its
offer to remove the condition that Movant must plead guilty so that her son would receive
a sentence of time served. Movant alleged that her counsel never informed her of this
change in the plea agreement. Movant also alleged that on the day of her plea, she and her
son were held together prior to their court appearances, and Skaggs confirmed his attorney
had told him that Movant had to plead guilty to first-degree murder in order for Skaggs to
get time served. Movant alleged Skaggs would testify that he was not informed of the
removal of this condition from the plea agreement either. Movant alleged that she
proceeded to plead guilty believing that she had to plead guilty in order for her son to be
released from custody with time served. Finally, Movant alleged that had she known of
the change to the plea agreement, she would have rejected the State’s plea offer and
proceeded to trial. Movant alleged that the State was not seeking the death penalty, and
thus she could not have received a worse sentence after trial than life in prison without the
possibility of probation or parole.
The motion court denied Movant’s motion without an evidentiary hearing, finding
the record conclusively refuted the allegations in her motion. This appeal follows.
Standard of Review
Our review is limited to a determination of whether the motion court’s findings and
conclusions are clearly erroneous. Rule 24.035(k). Because the findings of the motion
court are presumed to be correct, we will find them clearly erroneous only if, after a review
3 of the entire record, this Court is left with the definite and firm impression that a mistake
has been made. Vaca v. State, 314 S.W.3d 331, 334 (Mo. banc 2010).
To warrant an evidentiary hearing on her claim of ineffective assistance of counsel,
Movant must allege facts showing that her counsel’s performance fell below an objective
standard of reasonableness and that she was prejudiced thereby. See Lafler v. Cooper, 566
U.S. 156, 163 (2012). Where there is a plea of guilty, a claim of ineffective assistance of
counsel is immaterial “except to the extent that the conduct affected the voluntariness and
knowledge with which the plea was made.” Worthington v. State, 166 S.W.3d 566, 573
(Mo. banc 2005). Additionally, a movant is prejudiced where a reasonable probability
exists that, but for counsel’s ineffectiveness, he or she would have rejected the plea
agreement and proceeded to trial. Lowery v. State, 520 S.W.3d 474, 478 (Mo. App. S.D.
2017).
A movant is not entitled to an evidentiary hearing where the guilty plea proceedings
directly refute the movant’s claim that his or her plea was involuntary. Lomax v. State,
163 S.W.3d 561, 563 (Mo. App. E.D. 2005). However, “[t]o justify the denial of an
evidentiary hearing . . ., the record must be specific enough to conclusively refute the
movant’s allegation.” Id. (quoting State v. Driver, 912 S.W.2d 52, 56 (Mo. banc 1995)).
“[A] negative response to a routine inquiry whether any promises other than stated on the
record had been made is too general to encompass all possible statements by counsel to his
[or her] client.” Webb v. State, 334 S.W.3d 126, 129 (Mo. banc 2011) (quoting
Shackleford v. State, 51 S.W.3d 125, 128 (Mo. App. W.D. 2001)).
Discussion
4 Here, Movant argues that she was entitled to an evidentiary hearing on her motion
because she alleged unrefuted facts showing her plea was involuntary and unknowing, in
that her plea counsel failed to inform her that the State had amended its plea offer to remove
the condition that she must plead guilty to first-degree murder in order for her son to receive
a sentence of time served. We agree.
In its findings of fact, conclusions of law, and judgment denying Movant’s motion
without an evidentiary hearing, the motion court relied on the written petition to enter a
guilty plea signed by Movant, statements Movant made to the plea court, and a written
Certificate of Defense Counsel to conclude the record refuted Movant’s claims. Movant’s
written petition to enter a guilty plea set forth the plea agreement as follows:
Ct. 1- Life in DOC without possibility of probation or parole Ct. 2- Nolle 2 Ct. 3- Nolle
Movant put her initials next to this description in the written petition to enter a guilty plea.
Movant then confirmed that these were the terms of the agreement in her colloquy with the
plea court:
Q: Okay. Let’s go over the plea agreement with you. The State is going to nolle counts II and III; as to count I, Life in the Missouri Department of Corrections without the possibility of probation and parole; is that correct?
A: Yes.
The motion court further noted that Movant circled “yes” next to the box in the written
petition to enter a guilty plea which stated the following:
In entering a plea of guilty to the charge, I am not relying upon any promises, agreements or suggestions made by anyone at any time other than those expressly contained in the above plea agreement.
2 Nolle prosequi, the State will not prosecute the charge, and the charge is dismissed.
5 Movant affirmed a similar statement in her colloquy with the plea court:
Q: And in entering a plea of guilty to this charge, you’re not relying upon any promises, agreements, or suggestions made by anyone else at any other time, other than those expressly contained in the plea agreement, so in other words, the deal is the deal?
The motion court noted in its findings of fact, conclusions of law, and judgment that (1)
Movant’s plea agreement did not expressly state the condition that Movant must plead
guilty pursuant to the agreement in order for her son to be released with time served; (2)
Movant confirmed she was not relying upon any promises, agreements, or suggestions
other than those stated in the plea agreement; and (3) Movant’s counsel certified that she
had “fully, completely and timely” conveyed all plea offers by the State to Movant. We
find under the circumstances here that the trial court clearly erred in denying Movant’s
claim without an evidentiary hearing because Movant sufficiently alleged that her plea was
involuntary and unknowing due to her attorney’s failure to inform her that she need not
plead guilty in order to secure a more favorable sentence for her son. We further find the
plea court’s questions and Movant’s statements in the plea colloquy were not specific
enough to conclusively refute Movant’s claim without a hearing.
First, Movant’s motion sufficiently alleged a claim of ineffective assistance of
counsel. Movant and Skaggs were co-defendants, and according to Movant’s motion, the
State had initially offered them a joint plea agreement that required Movant to plead guilty
to first-degree murder, carrying a sentence of life in prison without the possibility of
probation or parole, in order for her son to receive a more lenient sentence of time served.
Under the terms of this deal, Movant’s motion claims the only benefit to Movant was that
6 her son would be released upon pleading guilty. According to Movant’s motion, her
attorney viewed this deal as unfair and researched whether it was in fact legal.
Moreover, Movant further alleged the State was not seeking the death penalty.
Thus, there was no worse sentence than life in prison without the possibility of probation
or parole for first-degree murder that Movant could have received after trial. If the
allegations in Movant’s motion are true, Movant received no personal benefit as it relates
to her sentence from the State’s dismissal of the other two counts against her as she received
the longest possible sentence of life in prison without the possibility of probation or parole
for her guilty plea to first-degree murder. But the benefit to her son was sufficient for
Movant, and she allegedly let her attorney know that she desired to plead guilty to benefit
her son.
According to Movant’s motion, her attorney became aware, but never
communicated to Movant, that the plea offer changed such that Movant would no longer
have to plead guilty and accept life without the possibility of probation or parole in order
for her son to be released with time served. Movant alleged she and her son were held
together on the day of their pleas prior to pleading guilty, and her son had no knowledge
of any change to the plea offer either. If Movant’s allegations are true, Movant had no
knowledge that the very reason for her acceptance of the plea offer, which she had
communicated to her attorney, was removed.
An attorney may render ineffective assistance where the attorney misinforms a
client about a consequence of pleading guilty, and the client reasonably depends on such
misrepresentation. Moore v. State, 207 S.W.3d 725, 730 (Mo. App. S.D. 2006).
“[D]epending upon the context within which it is made, an [attorney’s] omission can be
7 considered a misrepresentation.” Watts v. State, 206 S.W.3d 413, 417 (Mo. App. S.D.
2006). In Watts, the movant alleged he had initially rejected a plea offer solely because it
would have required him to serve 85 percent of his sentence, but then he accepted a later
offer believing it was not subject to the 85-percent rule because his attorney failed to inform
him that the 85-percent rule still applied. Id. at 416. The Court of Appeals found that the
movant was entitled to an evidentiary hearing on his Rule 24.035 motion because, given
the factual context, if the movant’s allegations were true, his attorney’s failure to advise
him of the applicability of the 85-percent rule could be considered a misrepresentation and
render his plea involuntary. Id. at 417.
Similarly, here, Movant’s allegation that her attorney failed to inform her that the
State had removed the condition that secured time served for her son, if true, represents a
material omission on the part of her attorney under these circumstances. According to
Movant’s motion, her attorney knew of Movant’s desire to care for her son and that was
the sole reason Movant desired to plead guilty. Thus, the removal of this condition
eliminated Movant’s entire reason for pleading guilty, and a reasonable attorney would
have communicated this to Movant. Moreover, if Movant’s allegations are true, her belief
that she needed to plead guilty to benefit her son was reasonable, in that her attorney
researched the issue and affirmatively told Movant that it was unfair but legal for the State
to impose such a condition. Cf. Hefley v. State, 626 S.W.3d 244, 249-50 (Mo. banc 2021)
(“Mistaken beliefs about sentencing affect a defendant’s ability to knowingly enter a guilty
plea if the mistake is reasonable and the mistake is based upon a positive representation
upon which the movant is entitled to rely”). Movant alleged she would have insisted on a
trial because she could not have fared any worse in terms of her own sentence, as the plea
8 agreement included a sentence of life in prison without the possibility of probation or
parole. Thus, if true, the allegations in Movant’s motion would entitle her to relief.
Second, the written statements in Movant’s petition to enter a plea of guilty and her
assent to the plea court’s statements during her plea colloquy do not specifically refute
Movant’s claim that she believed she had to plead guilty to secure lenience for her son,
despite the fact that this condition did not appear in the written petition to enter a guilty
plea. The plea court noted the disposition of the three counts against Movant contemplated
in the plea agreement, and the court asked Movant, “in other words, the deal is the deal?”
She replied yes. As it concerned her, life in prison without the possibility of probation or
parole was the deal for her. All of the questions the plea court asked had to do with
Movant’s specific charges and sentence, and the written petition to enter a guilty plea
reflected the entirety of the plea agreement as it related to Movant.
However, Movant alleged she was not making the deal to benefit herself; she made
it to benefit her son. When co-defendants plead guilty, their pleas often implicate other co-
defendants, involve some form of cooperation among co-defendants, or lessen the charges
or sentences facing a co-defendant; this is especially true when co-defendants are also
family members. See Frank v. Blackburn, 646 F.2d 873, 876 n.3 (5th Cir. 1980)
(discussing various types of plea agreements; noting “a prosecutor may provide leniency
to a defendant’s accomplices”); see also Bordenkircher v. Hayes, 434 U.S. 357, 364 n.8
(1978) (noting plea bargain in which prosecutor offers benefit to some person other than
accused “might pose a greater danger of inducing a false guilty plea”).
However, despite being co-defendants who are also mother and son, and the fact
that there was no apparent personal benefit to Movant for pleading guilty, the plea court
9 asked no questions concerning any agreements or promises there might have been
concerning Movant’s co-defendant, Skaggs. While the written petition to plead guilty and
the plea court’s colloquy were very thorough and would have sufficed for most typical
guilty pleas, given the unique circumstances here, the plea court could have and should
have asked one further, very specific, question during the plea colloquy: “Were there any
promises, agreements, suggestions, or discussions that involved your co-defendant and son
in this case that you are relying upon to enter this plea of guilty?” Had Movant answered
“no,” such a record would have sufficed to refute Movant’s allegations here and permit the
motion court to deny Movant’s present motion without an evidentiary hearing. 3 4
As it stands, the record showing Movant’s affirmation of the terms of her personal
agreement with the State as the only agreement there was for her does not specifically
refute Movant’s belief—due to her counsel’s alleged omission—that she had to enter this
plea and accept this particular sentence in order for her son to receive more favorable terms
in his plea agreement. Likewise, Movant’s realistic belief about her need to plead guilty
to benefit her son was not inconsistent with her answers to the court that there was no
outside agreement, promise, or suggestion regarding the outcome for her. Cf. Price v.
State, 171 S.W.3d 154, 157 (Mo. App. E.D. 2005) (movant’s affirmative responses to
3 The plea court did ask Movant whether any member of her family had been “mistreated, forced, threatened or coerced in any manner by anyone in order to get [Movant] to plead guilty.” However, Movant made no allegations that her son was mistreated, forced, threatened, or coerced. As alleged, the joint plea offer Movant willingly accepted after her counsel researched the offer does not involve mistreatment, force, threats, or coercion. Thus, Movant’s negative answer to the plea court’s question here does not conclusively refute Movant’s allegations. 4 The dissent maintains our holding “adds an unnecessary layer to the plea colloquy, burdening trial courts . . . .” We reiterate that this one question is necessary given the Supreme Court of Missouri’s precedent in Webb requiring specificity, in order for the motion court to deny a movant’s motion without an evidentiary hearing. Since the plea court here did not inquire about any agreements or promises involving Movant’s co- defendant, this simply means the motion court must hold a hearing on Movant’s claim that her plea was involuntary due to her counsel’s omission.
10 general questions whether he was pleading guilty of his own free will and whether he was
satisfied with counsel did not refute movant’s claim that counsel pressured movant into
pleading guilty because he could not afford his legal fees). What the court stated Movant
personally would receive regarding her sentence and the counts against her was exactly
what she expected. Thus, under these particular circumstances here, involving co-
defendants with a mother-son relationship, we do not find Movant’s answers to the court’s
inquiries here encompassed her attorney’s statements and omission to her regarding the
condition that she plead guilty in order to benefit her son. See Webb, 346 S.W.3d at 129. 5
Finally, the motion court in its denial of an evidentiary hearing relied in part on a
written Certificate of Defense Counsel, in which Movant’s counsel stated, “There have not
been any plea offers made by the State that I have not conveyed fully, completely and
timely to [Movant].” Counsel additionally affirmed in the Certificate of Defense Counsel
that she believed Movant’s guilty plea was voluntarily made. It is not clear that the
Certificate of Defense Counsel here specifically refutes Movant’s claim that Movant’s
counsel failed to communicate a change in the plea agreement concerning her son that
counsel had previously fully conveyed to Movant. Regardless, the Supreme Court of
Missouri has previously discussed the question of the extent to which a motion court can
rely upon unsworn statements of defense counsel in its decision to deny a movant an
evidentiary hearing in the context of Rule 29.07(b)(4), which requires a sentencing court
to conduct an inquiry into defense counsel’s effectiveness. See McIntosh v. State, 413
5 The dissent distinguishes Webb in passing by asserting the record here contains “far more evidence than a simple negative response to a routine inquiry regarding promises made to refute Movant’s post-conviction claim.” Aside from the plea court’s question regarding threats or coercion to a family member, discussed supra n.3, and the Certificate of Defense Counsel, which we discuss infra, the dissent notes Movant’s assurances to the plea court that she was satisfied with her plea counsel. However, Movant alleges she did not know of the change to her plea agreement prior to pleading guilty, so she could not have raised this complaint regarding her counsel during her guilty-plea hearing.
11 S.W.3d 320, 327-28 (Mo. banc 2013). The Supreme Court of Missouri in McIntosh
concluded that while an attorney has an ethical duty to make truthful statements as an
officer of the court, if a movant’s post-conviction motion “raises a question of fact as to
the accuracy of defense counsel’s claims of reasonable trial strategy, and if the other
requirements for an evidentiary hearing are met, a movant may be entitled to an evidentiary
hearing on that issue.” Id. at 328. Thus, a court should not deny a movant an evidentiary
hearing upon the basis of counsel’s unsworn statements, where the movant calls such
statements into question. Here, Movant has raised a question about the accuracy of her
counsel’s statement to the plea court regarding counsel’s conveyance of all plea offers from
the State, and Movant’s motion has met the other requirements for an evidentiary hearing.
The motion court clearly erred in relying on counsel’s certification to deny an evidentiary
hearing on this issue.
This is not a case where the guilt of the movant is necessarily in question, nor is it
a given that Movant will be able to prove at the hearing the allegations in her motion by a
preponderance of the evidence. However, Rule 24.035 provides evidentiary hearings
precisely for situations such as these. 6 First-degree murder is a serious charge, and the
allegations in Movant’s motion show that the benefit she bargained for, of which her
attorney was fully aware, no longer required her to willingly accept the harshest sentence
sought by the State to benefit her son. Perhaps at trial Movant could have been convicted
of a lesser-included crime, such as second-degree murder, which carries a lesser sentence
6 We note that Movant’s 24.035 motion and the motion court’s ruling all took place in 2021, during the effects of COVID-19, limiting the ability of many courts to conduct in-person proceedings. However, considering the allegations and record here, along with the gravity of the charges against Movant, we reiterate that Rule 24.035 mandates hearings whenever the record does not conclusively refute a Movant’s claims, and we urge trial courts to err on the side of conducting post-conviction-relief hearings out of an abundance of caution in such situations.
12 than first-degree murder. Instead, Movant gave up that right believing her guilty plea
secured a benefit for her son, not knowing that her son would receive the benefit of release
with time served regardless of her plea. If all this is true, her attorney’s failure to advise
her of the change to the plea agreement rendered her plea involuntary and unknowing, and
the record does not conclusively refute Movant’s claims. 7 The motion court clearly erred
in denying Movant’s motion without an evidentiary hearing. Point granted.
Conclusion
We reverse the denial of Movant’s motion and remand to the motion court to
conduct an evidentiary hearing.
Gary M. Gaertner, Jr., J.
Robert M. Clayton III, P.J., concurs. Thomas C. Clark II, J., dissents in a separate opinion.
7 At the same time, we note Judge Fischer’s observation that “defendants who have admitted they are guilty as charged but yet seek to set aside their guilty plea relying on the holding of the per curiam opinion [in Webb] will lose the benefit of their bargain obtained as a result of their plea and ultimately may receive a less favorable outcome.” Webb, 334 S.W.3d at 145 (Fischer, J., dissenting).
13 3Jn tbe ;!flltssourt Qtourt of �ppeals QE:astern 1!ltstrtct DIVISION TWO
SUSAN J. ARMANTROUT, ) No. ED109942 ) Appellant, ) Appeal from the Circuit Court of ) Madison County vs. ) Cause No. 20MD-CC00196 ) STATE OF MISSOURl, ) ) Honorable Jere! Lee Poor II Respondent. ) ) Filed: September 13, 2022 )
DISSENT
I dissent because the majority adds an unnecessary layer to the plea colloquy, burdening
trial courts to initially investigate - and subsequently evaluate - the plea consequences involving
codefendants. Here, the record is abundant, straightforward and thorough. It clearly refutes
Movant's claim and supports the motion court denying Movant's Rule 24.035 motion without a
hearing. Rule 24.035(h). For similar reasons, the record does not support a finding that the
motion court's findings and conclusions are clearly erroneous. Rule 24.035(k).
1 In the underlying criminal case, cause l SSG-CR01113, the state filed charges as State ofMissouri v. Susan J. Armantrout. When pleading guilty on April 3, 2020, Appellant and her attorney informed the trial court that Appellant's legal name is Susan Skaggs.