               SUPREME COURT OF MISSOURI
                                        en banc
RONALD JOHNSON,                             )           Opinion issued July 16, 2019
                                            )
                      Appellant,            )
                                            )
v.                                          )          No. SC97330
                                            )
STATE OF MISSOURI,                          )
                                            )
                      Respondent.           )


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



1
     References are to Missouri Court Rules 2018.
                          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]

2
   King pleaded guilty to first-degree murder, robbery, and armed criminal action. The
circuit court sentenced King to life in prison without the possibility of parole.
                                              2
       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




3
   The dissenting opinion makes multiple arguments that were not raised in any prior
proceeding, including that Johnson’s counsel was ineffective for failing to inform him of
all available defenses and for failing to differentiate between incompetency and intellectual
disability. See infra, § IV. It is well-established that “this Court will not, on review, convict
a lower court of error on an issue which was not put before it to decide.” Lincoln Credit
Co. v. Peach, 636 S.W.2d 31, 36 (Mo. banc 1982).

                                               3
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


4
  Although Johnson raised counsel’s failure to investigate his perceived intellectual
disability as grounds for postconviction relief in his Rule 24.035 motion, Johnson failed to
raise this argument on appeal. “Contentions not presented in the points to be argued in an
appellate brief are abandoned and will not be considered.” Hastings v. Coppage, 411
S.W.2d 232, 235 (Mo. 1967); Rule 84.04(e) (“The argument shall be limited to those errors
included in the ‘Points Relied On.’”).
                                              4
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


5
    Rule 24.035(a) states in pertinent part:
        A person convicted of a felony on a plea of guilty claiming that the conviction
        or sentence imposed violates the constitution and laws of this state or the
        constitution of the United States, including claims of ineffective assistance
        of trial and appellate counsel, that the court imposing the sentence was
        without jurisdiction to do so, or that the sentence imposed was in excess of
        the maximum sentence authorized by law may seek relief in the sentencing
        court pursuant to the provisions of this Rule ….


                                               5
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.

                                             6
            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



                                              7
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

                                              8
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




                                            9
(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).




6
   Missouri prohibited the execution of intellectually disabled offenders even before Atkins
was decided. Section 565.030, enacted in 2001, provides in pertinent part, “The trier shall
assess and declare the punishment [for murder in the first degree] at life imprisonment
without eligibility for probation, parole, or release except by act of the governor … [i]f the
trier finds by a preponderance of the evidence that the defendant is intellectually
disabled[.]” § 565.030.4(1).
7
   Statutory references are to RSMo 2000, as amended.
                                               10
       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




8
    Even if Johnson’s counsel should have investigated more thoroughly Johnson’s
intellectual disabilities, Johnson abandoned his failure to investigate claim in this appeal.
See supra, note 3.
                                             11
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).



                                              12
   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

                                             13
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

                                             14
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

                                              15
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




                                             16
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 did not

seek postconviction relief on any of these grounds. 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

9
   For this reason, the dissenting opinion’s reliance on Moore v. Texas, 137 S. Ct. 1039,
1050 (2017) (“Moore I”), and Moore v. Texas, 139 S. Ct. 666, 671 (2019) (“Moore II”), is
misplaced. Those cases are inapposite because they turned on the Texas court’s erroneous
finding that Moore was not intellectually disabled. Moore I, 137 S. Ct. at 1050; Moore II,
139 S. Ct. at 1050. By contrast, there has never been a finding at any stage in this case as
to whether Johnson is – or is not – intellectually disabled. As a result, the dissenting
opinion diverts attention from the issues actually presented by this case. Although Johnson
may have been able to establish he was intellectually disabled had he sought such a finding,
this Court’s review of the motion court’s denial of postconviction relief is limited to the
grounds on which Johnson sought postconviction relief. See supra, notes 3, 4, and 8, and
accompanying text.
                                             17
        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.


                                               18
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

                                              19
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.




10
   The dissenting opinion argues the Court should consider the dissent’s characterization
of Johnson’s claim ex gratia because the briefing suggests the State “well understood the
argument being made.” Slip op. at 10. But reviewing claims ex gratia creates a risk of the
Court exceeding its jurisprudential function and assuming a role as advocate instead of
arbiter. For this reason, the Court should exercise extreme caution when deciding whether
to conduct discretionary ex gratia review, as such review is warranted only where
necessary to avoid manifest injustice. State v. Nave, 694 S.W.2d 729, 735 (Mo. banc 1985);
State v. Ervin, 835 S.W.2d 905, 921 (Mo. banc 1992). Contrary to the dissenting opinion’s
contention, there is no manifest injustice in this case to justify setting aside Johnson’s guilty
plea because Johnson’s plea secured his desired outcome – to avoid receiving the death
penalty.

                                               20
                                        Conclusion

       Because the motion court did not clearly err overruling Johnson’s Rule 24.035

motion, the motion court’s judgment is affirmed.



                                                         ___________________
                                                         W. Brent Powell, Judge




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.




                                             21
               SUPREME COURT OF MISSOURI
                                         en banc
RONALD JOHNSON,                             )
                                            )
              Appellant,                    )
                                            )
v.                                          )     No. SC97330
                                            )
STATE OF MISSOURI,                          )
                                            )
              Respondent.                   )


                                DISSENTING OPINION

       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



1
  The term mental retardation is now viewed as offensive, and its use is discouraged by
major advocacy groups. The preferred term is now intellectual disability. This opinion
uses intellectual disability whenever possible. However, most of Mr. Johnson’s educational
and medical records, as well as numerous older cases, use the previous term mental
retardation.
                                               2
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

                                             3
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

                                               4
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
       under similar circumstances by failing to advance the defense of mental
       retardation. But for counsel’s ineffectiveness, Ronald would not have
       entered a plea of guilty, but would have insisted on going to trial.

(Emphasis added).

                                               5
       Mr. Johnson’s argument in support of this issue in his amended Rule 24.035 states:

               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 plea 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 under similar
       circumstances by failing to advance the defense of mental retardation.
       But for counsel’s ineffectiveness, Ronald would not have entered a plea of
       guilty, but would have insisted on going to trial. …

(Emphasis added). Mr. Johnson cited Atkins and other relevant case law concerning the

bar on executing a person suffering from intellectual disability. 2 The motion court,

nonetheless, found counsel was not ineffective because it believed the only rational choice

was to accept a sentence of life without parole rather than risk the imposition of death and

because, as explained further below, the motion court failed to understand the intellectual

disability issue and how it was distinct from Mr. Johnson’s competency arguments and,

therefore, failed to address it.

       Mr. Johnson’s point relied on and argument in this Court are, likewise, adequate to

raise the issues addressed in this dissent. Mr. Johnson’s first point relied on states that his

basis for objection is his counsel’s misinformation to him about the death penalty:

       … is error in that a reasonably competent attorney would have known that
       Ronald, 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
       Ronald 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, Ronald would
       not have been coerced into pleading guilty to a sentence of life without parole

2
  Hoskins v. State, 329 S.W.3d 695, 699 (Mo. banc 2010), which precludes plain error
review of matters not raised in a petitioner’s Rule 24.045 motion, therefore, is not
applicable.
                                              6
       in a manner that was neither knowing, voluntary, nor intelligent.

(Emphasis added). In other words, Mr. Johnson’s first point relied on raises the argument

now made that his plea was not knowing, voluntary or intelligent because he was coerced

into pleading guilty by the failure to inform him that intellectual disability would preclude

imposition of the death penalty.

       Moreover, even were the point inadequate to preserve this argument considered in

isolation, this argument is the principal focus of the first 10 pages of Mr. Johnson’s brief

under this point relied on: that his plea was not voluntary and knowing because his counsel

failed to tell him or learn himself that an intellectually disabled person cannot be executed

and that he was intellectually disabled under the law and the facts. The brief cites many of

the same cases discussed in this dissent. The brief also cites large portions of the record,

which it is able to do because almost the entire focus of the testimony of both defense

counsel and Mr. Johnson before the motion court during the evidentiary hearing was about

what defense counsel knew about intellectual disability and what counsel then failed to

share with Mr. Johnson before Mr. Johnson entered a plea. 3


3
 Length prevents quoting the argument in total, but it is publicly available on this Court’s
website. For instance, Mr. Johnson argues in support of his first point, “‘If Appellant’s
pleas were the product of fraud, mistake, misapprehension, fear, coercion, or promises, he
should be permitted to withdraw his guilty plea.’ Tillock v. State, 711 S.W.2d 203, 205
(Mo. App. S.D. 1986), citing, Latham v. State, 439 S.W.2d 737, 738 (Mo. banc 1969).”
Mr. Johnson goes on to argue:
       Admittedly, under Missouri Law, a finder of facts has the ability to believe
       or disbelieve evidence. Jackson v. State, 433 S.W.3d 390 (Mo 2014). Yet this
       is a case where regardless of what witness one believes, state or defense,
       which records one credits, state or defense, the same result is reached: every
       test and every record shows Ronald with an IQ well under 70, with severe

                                             7
       This Court has long held that, “Cases should be heard on the merits if possible.

Statutes and rules should be construed liberally in favor of allowing appeals to proceed.”

Sherrill v. Wilson, 653 S.W.2d 661, 663 (Mo. banc 1983). The purpose of this Court’s

briefing requirements is to avoid courts facing “the dilemma of deciding that case (and

possibly establishing precedent for future cases) on the basis of inadequate briefing and

advocacy or undertaking additional research and briefing to supply the deficiency.”

Huffman v. SBC Servs., 136 S.W.3d 592, 593 (Mo. App. 2004), citing, Thummel v. King,

570 S.W.2d 679, 686 (Mo. banc 1978). Here, however, the briefing is more than adequate.

The principles of law and facts needed to decide whether Mr. Johnson was adequately

informed he had an excellent argument he was ineligible for the death penalty were he to

assert that he was intellectually disabled, are raised in his original motion, developed in

testimony during the evidentiary hearing, and included in the briefing before this Court.

       But, even were the principal opinion correct that Mr. Johnson’s points relied on

before this Court do not preserve an argument that his counsel failed to inform him of a

defense, it does not follow that the principal opinion has no choice but to ignore the

argument altogether. Appellate courts “have the discretion to review non-compliant briefs

ex gratia where the argument is readily understandable.” Scott v. King, 510 S.W.3d 887,

892 (Mo. App. 2017). Courts “also have discretion in the interest of justice to review an


       functional deficits in his adaptive behavior. (Pcr Tr at 30-3, 54, 55, 73, Lf 39,
       Exhibit 3). The dictates of Jackson do not trump the dictates of Atkins and
       Hall, but must be read in harmony with them. The US Supreme Court has
       been clear-- State procedures have great leeway, but must be crafted to avoid
       the risk of someone with Mental retardation receiving the death penalty. See,
       Moore v. Texas, 581 U.S. ___, 137 S.Ct. 1039 (2017) ….
                                              8
appeal on the merits even when the statement of facts and points relied on are not

acceptable.” Gray v. White, 26 S.W.3d 806, 816 (Mo. App. 1999). In Wilkerson, 943 S.W.2d

at 647, this Court considered a brief that inaccurately objected to a motion in limine rather

than the admission of the evidence at trial. This Court decided it could rule on the matter

because the facts were in front of it, writing, “This Court’s policy is to decide a case on its

merits rather than on technical deficiencies in the brief.” Id.; accord Wieland v. Owner-

Operator Servs., Inc., 540 S.W.3d 845, 854 (Mo. banc 2018) (Russell, J., dissenting)

(objecting to a theory of preservation that parses words and “attempts to manufacture a

distinction that is without a difference” when a substantive theory has been advanced

through the briefing). This Court, in other words, is free to give the issue full merits review

ex gratia. Should it choose not to do so, Wilkerson further recognized that, while “the point

will be disregarded,” it is in this Court’s discretion whether the issue raised will be

“reviewed only for plain error, or the appeal dismissed.” 943 S.W.2d at 647.

       While I believe Mr. Johnson has preserved this claim through his points relied on,

or merits review ex gratia, at least plain error review is appropriate, for the State’s lengthy

response on the merits showed it well understood the argument being made. “Plain errors

affecting substantial rights may be considered on appeal, in the discretion of the court,

though not raised or preserved, when the court finds that manifest injustice or miscarriage

of justice has resulted therefrom.” Rule 84.13(c). 4


4
  Plain error is evident, obvious and clear error. Farmers Exchange Bank v. Metro
Contracting Servs., Inc., 107 S.W.3d 381, 395 (Mo. App. 2003). “[T]he error must have
prejudiced the appellant, except that such prejudice must rise to the higher level of manifest
injustice or a miscarriage of justice.” Id.
                                              9
       And, surely, the case of an intellectually disabled man agreeing to die in prison

because he did not understand that, if the jury found he had the disability he and everyone

around him said he had, he would not be subject to the death penalty is a case in which

“the injustice of the error is so egregious as to weaken the very foundation of the process

and seriously undermine confidence in the outcome of the case.” Atkinson v. Corson, 289

S.W.3d 260, 276-77 (Mo. App. 2009) (internal quotations omitted). The principal opinion

errs in failing to address this argument on the merits.

       Finally, the majority opinion states that the issue of whether Mr. Johnson is

intellectually disabled was not tried below in the underlying criminal case and, therefore,

is not properly before this Court. That is the whole point. The very reason Mr. Johnson

argues defense counsel was ineffective is that he failed to inform Mr. Johnson of the

likelihood he would be found to be intellectual disabled and let him decide whether to put

that before a fact finder. Yet the principal opinion appears to seriously contend that the

very failure which made defense counsel ineffective itself precludes Mr. Johnson from

raising the issue of ineffective assistance of counsel because, as the principal opinion

writes, examination of the extensive evidence Mr. Johnson is intellectually disabled

“diverts attention from the issues actually presented by this case” as “there has never been

a finding at any stage in this case as to whether Johnson is — or is not — intellectually

disabled.” This turns Mr. Johnson’s point on its head. Of course his intellectual disability

was not determined below, for counsel failed to raise it. Had it been raised, he would not

have grounds to allege counsel was ineffective for failing to tell him about how intellectual

disability could impact his defense.

                                             10
       Further, the principal opinion’s hypothetical does not make sense in the context of

why Mr. Johnson’s counsel was ineffective. Mr. Johnson complains his counsel should

have told him about how the evidence of his intellectual disability mattered given that he

was pleading guilty to avoid the death penalty. The principal opinion seems to excuse this

by saying, even were Mr. Johnson informed of the defense of intellectual disability, if it

was not successful Mr. Johnson might now be complaining about his counsel’s failure to

advise him to take the plea.

       But an ineffective assistance of counsel claim is not based on whether counsel got

the preferred outcome for the client. It is supposed to be based on whether defense

counsel’s performance conformed to the degree of skill, care, and diligence of a reasonably

competent attorney. Strickland, 466 U.S. at 687-88. And the first duty of counsel is to

give his or her client the information the client needs to make an informed decision whether

to take the plea or go to trial.

       Had Mr. Johnson’s counsel informed Mr. Johnson about this highly technical,

specialized defense Mr. Johnson had no hope of knowing about on his own, Mr. Johnson

would have had the information he needed to make an informed decision, a decision that

was his right to make. Were he found guilty of first-degree murder, the fact counsel

informed him of what he needed to know would have precluded a claim that the rejection

of the plea was involuntary. Accurate information on which to base a plea decision is what

it takes to make the plea knowing and voluntary. State v. Hunter, 840 S.W.2d 850, 861

(Mo. banc 1992).

       The principal opinion at no point explains why it is permissible for counsel not to

                                            11
have informed Mr. Johnson of the information he needed to make a knowing plea. To say

now that Mr. Johnson cannot claim his counsel was ineffective because no fact finder has

determined he was intellectually disabled because his counsel was ineffective in failing to

learn what intellectual disability is and the defense it provides is circular. Such a Catch-22

scenario does not govern post-conviction relief in Missouri. The issues discussed in this

dissent are preserved.

II.    WHAT IS INTELLECTUAL DISABILITY AND HOW DOES IT DIFFER
       FROM INCOMPETENCE TO STAND TRIAL?

       The principal opinion confuses incompetency and intellectual disability.

Incompetency is an entirely different question from intellectual disability with different, if

overlapping, consequences.

        An accused is competent to stand trial if he has “sufficient present ability to consult

with his lawyer with a reasonable degree of rational understanding and has a rational as

well as factual understanding of the proceedings against him.” State v. Wise, 879 S.W.2d

494, 507 (Mo. banc 1994) (internal quotation omitted), overruled on other grounds by Joy

v. Morrison, 254 S.W.3d 885, 888 n.7 (Mo. banc 2008). At the time of Mr. Johnson’s plea,

a Missouri statute stipulated a person found to be incompetent could not undergo trial or

be convicted so long as the person remained incompetent. 5

       By contrast, the United States Supreme Court repeatedly has reaffirmed that



5
  “No person who as a result of mental disease or defect lacks capacity to understand the
proceedings against him or to assist in his own defense shall be tried, convicted or
sentenced for the commission of an offense so long as the incapacity endures.”
§ 552.020.1, RSMo 2000.
                                             12
intellectual disability goes not to incapacity to be tried but to the defendant’s mental state

and to whether the death penalty can be imposed – a distinction neither the motion court

nor defense counsel seemed to grasp. As it explained this distinction in Atkins:

       Mentally retarded persons frequently know the difference between right and
       wrong and are competent to stand trial. Because of their impairments,
       however, by definition they have diminished capacities to understand and
       process information, to communicate, to abstract from mistakes and learn
       from experience, to engage in logical reasoning, to control impulses, and to
       understand the reactions of others.

Atkins, 536 U.S. at 318. That is to say, the presence of some mental retardation or defect

does not automatically render a person incompetent. Baird v. State, 906 S.W.2d 746, 750

(Mo. App. 1995). But a finding of intellectual disability makes a person per se ineligible

for the death penalty. Atkins, 536 U.S. at 321.

       Atkins emphasized courts should look to clinical definitions of intellectual disability,

specifically citing those definitions from the DSM-IV and the AAMR, in determining

whether a defendant is intellectually disabled. 6 Id. at 308 n.3, 317 n.22; Hall v. Florida,

572 U.S. 701, 720 (2014) (“The clinical definitions of intellectual disability, which take

into account that IQ scores represent a range, not a fixed number, were a fundamental

premise of Atkins.”). Since Atkins, the Supreme Court has clarified multiple times that,

while the definitions of intellectual disability are left up to the states, the determination


6
  The major clinical authorities on intellectual disability, who have been repeatedly
referenced by the Supreme Court, are the American Association on Mental Retardation
(AAMR) which later became the American Association on Intellectual and Developmental
Disabilities, and the American Psychiatric Association which issues the Diagnostic and
Statistical Manual of Mental Disorders. See Atkins, 536 U.S. at 308 n.3. In Atkins, the
Supreme Court made it clear courts should look at the most recent materials which, at the
time, included the Fourth Edition of the DSM (DSM-IV). Id.
                                              13
must be “informed by the medical community’s diagnostic framework.” Hall, 572 U.S. at

721. According to the diagnostic framework followed in Atkins, and codified in Missouri

statute, there are three major components: (1) “significantly subaverage intellectual

functioning,’ (2) “continual extensive deficits and limitations in adaptive behaviors …,”

and (3) those “conditions are manifested and documented before eighteen years of age.” §

565.030.6, RSMo 2016.

       The Supreme Court in 2017, and again in 2019, explained further what processes

may be used to determine “deficits in adaptive behaviors” in two cases explicitly rejecting

the Texas courts’ finding Bobby Moore was not intellectually disabled. Moore I, 137 S.

Ct. at 1050; Moore II, 139 S. Ct. at 1050. Crucially here, particularly when the Supreme

Court took the almost unprecedented step of reversing the Texas courts a second time in

Moore II, these cases also specify which processes may not be used – the processes utilized

by the motion court and defense counsel here.

       “Because the lower end of Moore’s [IQ] score range falls at or below 70, the [Texas

appellate court] had to move on to consider Moore’s adaptive functioning.” Moore I, 137

S. Ct. at 1049. The Texas courts found Moore “did not suffer significant adaptive deficits”

and thus concluded he was eligible for execution. Id. at 1050. The Supreme Court

disagreed with the method of analysis the Texas courts used.

       First, it found the Texas courts “overemphasized Moore’s perceived adaptive

strengths” such as looking at the evidence he could do things like mow lawns or play

games. Id. Instead of looking at evidence of skills, the Supreme Court instructed:

       [T]he medical community focuses the adaptive-functioning inquiry on

                                            14
       adaptive deficits. E.g., AAIDD–11, at 47 (“significant limitations in
       conceptual, social, or practical adaptive skills [are] not outweighed by the
       potential strengths in some adaptive skills”); DSM–5, at 33, 38 (inquiry
       should focus on “[d]eficits in adaptive functioning”; deficits in only one of
       the three adaptive-skills domains suffice to show adaptive deficits).

Id. at 1050 (emphasis in original).

       The Supreme Court was even more direct in Moore II, holding it was inappropriate

for the Texas courts to look at Moore’s supposed skills through anecdotal evidence from

counsel regarding Moore’s ability to talk and communicate, rather than focusing on the

evidence of his deficits in these areas, such as evidence that, “in school[,] Moore was made

to draw pictures when other children were reading, and that by sixth grade Moore struggled

to read at a second-grade level.” Moore II, 139 S. Ct. at 670-71.

       The Supreme Court also faulted the Texas courts for extensively discussing Moore’s

behavior in prison or basic participation in the case, writing, “Clinicians, however, caution

against reliance on adaptive strengths developed ‘in a controlled setting,’ as a prison surely

is.” Moore I, 137 S. Ct. at 1050. The Supreme Court cites widespread clinical agreement

that looking at a defendant’s behavior once incarcerated has low probative value. Id. (citing

the DSM-V and AAIDD–11 User’s Guide 20 as advising against examining “behavior in

jail or prison”). Instead, the inquiry should be on observed adaptive behavior deficits

before the age of 18, such as struggling to read, inability to understand concepts, and poor

decision making. Moore II, 129 S. Ct. at 670-71.

       Finally, the Texas courts relied on a series of factors, called the Briseno factors,

which ask counsel and family members to give anecdotal impressions of whether the

person, essentially, has behaved how they would expect an intellectually disabled person

                                             15
to behave. Moore I, 137 S. Ct. at 1044; Moore II, 139 S. Ct. at 671. The Supreme Court

rejected this sanctioned use of anecdotal impressions of lay individuals, writing that basing

a determination of intellectual disability on, for example, whether the crime “required

planning and forethought” was inappropriate. Moore II, 139 S. Ct. at 671-72. Instead, the

Supreme Court held states should require clinical evaluations of adaptive behaviors: “the

medical profession has endeavored to counter lay stereotypes of the intellectually disabled.

See AAIDD-11 User’s Guide 25-27; Brief for AAIDD et al. as Amici Curiae 9-14, and nn.

11-15. Those stereotypes, much more than medical and clinical appraisals, should spark

skepticism.” Moore I, 137 S. Ct. at 1052; Moore II, 139 S. Ct. at 671 (the AAIDD

criticizes reliance on “incorrect stereotypes” about persons with intellectual disability such

as whether they are able to have jobs, complete tasks, have spouses or children).

       Atkins, as clarified by Hall, Moore I, and Moore II, set out clearly how states are

limited by clinical guidance in determining intellectual disability. To determine whether

there is evidence of low intellectual functioning, clinicians give multiple IQ scores and

account for a standard error of measurement (five points) when an IQ score is close to, but

above 70. Hall, 572 U.S. at 712, 723. Then, to determine whether this low IQ is

accompanied by adaptive behavior deficits, clinicians, preferably using standardized

instruments, should examine records from childhood and interview those who knew the

defendant, looking only at whether the defendant, when in a non-penal environment,

exhibited deficits in conceptual, social, or practice skills. Moore I, 137 S. Ct. at 1049-

1053. Finally, some evidence of the deficits should be available before age 18. Id.



                                             16
III.   THE PRINCIPAL OPINION, THE COURTS BELOW, AND DEFENSE
       COUNSEL ALL FAILED TO USE THE APPROACH REQUIRED BY MOORE
       I and II AND CONFUSE THE STANDARD FOR INTELLECTUAL
       DISABILITY WITH THAT FOR INCOMPETENCY, IGNORING
       UNDISPUTED EVIDENCE OF MR. JOHNSON’S INTELLECTUAL
       DISABILITY

       At the time of Mr. Johnson’s plea, there was a well-established constraint on trial

courts to follow clinical guidance in evaluating intellectual disability. Missouri’s prior

cases all have adhered to using a medical and scientific approach to determining intellectual

disability in prior cases, and Missouri’s statute specifically incorporates the clinical

definitions of intellectual disability laid out in Atkins. In fact, years before Mr. Johnson’s

plea, this Court in Goodwin v. State, 191 S.W.3d 20, 31 n.8 (Mo. banc 2006), cited the

DSM-IV in recommending courts measure adaptive deficits through clinical scales such

as the Vineland Adaptive Behavior Scale and AAMR-Adaptive Behavior Scale. There was

also a clear explication of the difference between intellectual disability and incompetency

in Atkins. Despite this, defense counsel and the motion court, and now unfortunately this

Court, failed to articulate this distinction and failed to follow clinical standards in

determining whether Mr. Johnson was intellectually disabled.

       A.     The Evidence without Contest Shows Mr. Johnson Has Been Diagnosed
              Consistently with “Mild Mental Retardation” and Has IQ Scores Far
              Below 70

       The evidence of Mr. Johnson’s intellectual disability is truly extraordinary even by

the standards of most Atkins claims.        Before trial, Johnson’s counsel reviewed his

childhood records. Mr. Johnson’s school records showed that, when he was ten years old,

he had a clinical assessment of his IQ that found he had a full-scale IQ score of 53. This


                                             17
places his score 17 points below what Missouri case law at the time instructed was

indicative of low intellectual functioning. State v. Johnson, 244 S.W.3d 144, 153 (Mo.

banc 2008) (“[A] person with an I.Q. of 70 or lower has significantly subaverage

intellectual functioning[.]”).   This clinical assessment also confirmed Mr. Johnson’s

deficits with a diagnosis of “mild mental retardation.”

       Based on his low IQ and difficulty functioning, Johnson was placed in special

education classes. He remained in special education until he was unable to keep up and

dropped out of high school in tenth grade. His diagnosis of “mild mental retardation” was

reaffirmed by his schools multiple times. He also testified during sentencing that he

received disability benefits due to “slow learning.”

       Prior to trial, Mr. Johnson received a competency exam from Dr. Armour, later used

as the State’s expert. This State expert diagnosed Mr. Johnson as having “mild mental

retardation V borderline intellectual function.” The post-trial evidence has confirmed Mr.

Johnson’s cognitive deficits. Dr. Robert Fucetola assessed Mr. Johnson’s cognitive and

intellectual functioning in 2014 by interviewing Mr. Johnson and his family and reviewing

his records in preparation for the evidentiary hearing on Mr. Johnson’s post-conviction

motion. Dr. Fucetola reaffirmed Mr. Johnson’s diagnosis of mild mental retardation,

finding he had an IQ of 63 with the receptive vocabulary of an 8-year-old child.

       The evidence of Mr. Johnson’s disability is extreme even in Atkins litigation. Most

litigated cases in Missouri and across the country address situations in which an individual

has IQ scores bordering on the top limit for a diagnosis of intellectual disability (at or above

70), and some additional evidence of limited adaptive functioning is considered so the jury

                                              18
or judge can determine whether the defendant’s effective IQ is within the five-point margin

of error so that he or she really has an IQ of 70 or lower. This was the case in Hall, 572

U.S. at 724, which remanded based on the finding Hall was not intellectually disabled

because he had an IQ score of 71. The Supreme Court explained, “when a defendant’s IQ

test score falls within the test’s acknowledged and inherent margin of error, the defendant

must be able to present additional evidence of intellectual disability.” Id.

       Similarly, this Court wrote in 2008, two years before the plea in this case:

       According to the Diagnostic and Statistical Manual of Mental Disorders IV
       (DSM-IV), a person with an I.Q. of 70 or lower has significantly subaverage
       intellectual functioning, but it is possible for an individual with an I.Q.
       between 70 and 75 to be diagnosed as mentally retarded if they exhibit
       significant deficits in adaptive behavior.

Johnson, 244 S.W.3d at 153; State ex rel. Lyons v. Lombardi, 303 S.W.3d 523, 526 (Mo.

banc 2010) (finding Lyons met the definition of mental retardation with IQ in the range of

61 to 70); cf. Goodwin, 191 S.W.3d at 30-31 (Mo. banc 2006) (holding this Court did not

need to consider limited adaptive functioning only because defendant had eight IQ tests

showing scores in the mid-70s to 80s).

       In fact, no case or authority has been found from Missouri or from any other

jurisdiction since Atkins that considers any person with an IQ of less than 65 (and so outside

the margin of error) as being anything other than intellectually disabled, because the DSM

provides that one who has an IQ of 70 or lower is intellectually disabled. Adaptive

behaviors can cause this score to move up or down by 5 points, but no case has been found

stating there is scientific support for finding it can move up the score of one with an IQ of

53 to 63 into the more than 70 range. Even the highest end of the margin of error of Mr.

                                             19
Johnson’s highest score is below 70. To contend Mr. Johnson could not have been sure

the fact-finder would have taken death off the table is to believe his case would be the first

in the nation in the 17 years since Atkins to allow the execution of a person who scores as

intellectually disabled even at the top end of his IQ range.

       B.     Mr. Johnson Has Multiple Non-Adaptive Behaviors

       In addition to low intellectual functioning, the definition of intellectual disability

requires the fact-finder to determine Mr. Johnson had “deficits and limitations in adaptive

behaviors.”   Unsurprisingly given Mr. Johnson’s IQ score, the record is also rife with

documented and extensive deficits in adaptive behavior. 7

       Mr. Johnson’s school records reveal severe deficits in his conceptual skills of

language and literacy. 8 Years into school he remained functioning at the level of a

kindergartner. His Individualized Education Plan (IEP), a required plan done yearly for

children with disabilities, reaffirmed his diagnosis of mild mental retardation numerous

times throughout his adolescence, most recently in 2002. He was in special education

courses until he dropped out of school in tenth grade. His examination before the

evidentiary hearing found him to have the receptive vocabulary of an 8-year-old child.

       Defense counsel also had medical records revealing Mr. Johnson received disability

benefits based on his cognitive impairment. Before entering his plea, Mr. Johnson told the

court he was “getting disability checks” for “slow learning.” When asked how long he was


7
  “Adaptive behavior is the collection of conceptual, social, and practical skills that are
learned and performed by people in their everyday lives.” AAIDD (emphasis omitted).
8
    Definition of Intellectual Disability, AAIDD, https://aaidd.org/intellectual-
disability/definition (last visited July 14, 2019) (“AAIDD Definition”).
                                             20
receiving such assistance, Mr. Johnson responded, “Since I was – I can’t remember, but

I’ve been since I was just a little kid.”

       Mr. Johnson’s struggles in social skills and practical skills are reflected in his

behaviors as he eased into adulthood. See AAIDD Definition (defining social skills as,

“interpersonal skills, social responsibility, self-esteem, gullibility, naïveté (i.e., wariness),

social problem solving, and the ability to follow rules/obey laws and to avoid being

victimized”). He did not have steady employment after he dropped out of school in tenth

grade. He underwent periods of homelessness. He became HIV positive as a teenager.

While in his teens, he began a relationship with Cleophus King, the actual murderer, a

significantly older man with a violent history. Mr. Johnson testified later he was “scared”

of Mr. King, and did not know how to end the relationship before Mr. King directed him

to participate in the robbery and murder.

       After his examination of Mr. Johnson just before the postconviction hearing,

Dr. Fucetola confirmed Mr. Johnson had severe deficits in all areas of understanding and

ability in his daily life and had impaired reasoning ability and understanding of the legal

process. Dr. Fucetola believed Mr. Johnson would be easy to lead or coerce and struggled

in dealing with unexpected situations or making decisions in his own interest.

       C.      Counsel, the Courts below and the Principal Opinion Use the Wrong Test
               for Intellectual Disability under Atkins, Moore I, and Moore II

       Had counsel below, the motion court, or the majority opinion reviewed the record

in light of the scientific standard required by Atkins, and now as reaffirmed by Moore I and

Moore II, it would be apparent that Mr. Johnson has presented substantial and


                                               21
uncontroverted evidence of intellectual disability and that there is, quite literally, no

relevant contrary evidence.

       After reading his childhood records, which unequivocally diagnose Mr. Johnson

with mental retardation, Mr. Johnson’s counsel failed to understand that they showed

defendant was intellectually disabled. Based on the records and on his interaction with Mr.

Johnson, counsel requested the competency evaluation performed by Dr. Armour because

of counsel’s “concerns about his mental ability to understand what’s going on or his mental

ability.” But counsel failed to request an examination of Mr. Johnson’s intellectual ability.

He then failed to recognize the significance of the Dr. Armour’s report containing a

diagnosis of mild mental retardation.

       In fact, defense counsel knew so little about intellectual disability, he did not even

notice or remember that Dr. Armour’s report contained this diagnosis. Once reminded of

this by being shown Dr. Armour’s report, the following exchange took place:

       Q. And did Mr. Armour’s diagnosis include mental retardation?
       A. Did his diagnosis --
       Q. Include mental retardation.
       A. It says here mild mental retardation V borderline intellectual
       function.
       Q. And you had a copy of that exam as well as the Court did; is that correct?
       A. Of course.
       Q. Are you familiar with Atkins vs. Virginia?
       A. Vaguely.
       Q. Do you know the whole Atkins vs. Virginia?
       A. Not offhand.
       Q. Are you familiar with Hall vs. Florida?
       A. No.
       Q. Is someone who suffers from mental retardation eligible for the death
       penalty?
       A. I do not believe so.
       Q. Did you discuss this with Mr. Johnson?

                                             22
       A. I did not believe that Mr. Johnson was found to be mentally -- have mental
       retardation. Close to it, but not mental retardation.
       Q. What is the definition of mental retardation?
       A. I’m not a doctor. I don’t know. I just know that in my -- my relationship
       with Mr. Johnson and in speaking with him, that I did not believe that he
       suffered from mental retardation.
       Q. Are you familiar with the standards that have been used by the U.S.
       Courts?
       A. I don't know what -- I don’t understand the question.
       Q. What standard of the definition of mental retardation was used?
       A. I don’t know. If you provide me with it, I could tell you.
       Q. Did you know at the time?
       A. I did not believe he was mentally retarded.
       Q. But you did not know what the definition was?
       A. It was -- just never even occurred to me to look.

(Emphasis added).     Despite having no familiarity with the definition of intellectual

disability, and despite testifying that he has no relevant medical or clinical experience,

defense counsel testified he did not believe Mr. Johnson was intellectually disabled.

Counsel’s first grave error, therefore, was totally failing to familiarize himself with the

legal standard of who is eligible to be executed before giving Mr. Johnson advice about

how to avoid execution.

       But defense counsel’s rationale for his actions – a rationale the principal opinion

seems to approve – is equally problematic and presents his second grave error. Instead of

relying on scientific or legal standards, counsel stated he based his belief in Mr. Johnson’s

mental abilities on the very factors that Moore I and Moore II have said are impermissible

– his own personal perceptions of Mr. Johnson:

       A. I did not believe that Mr. Johnson was found to be mentally -- have mental
       retardation. Close to it, but not mental retardation.
       Q. What is the definition of mental retardation?
       A. I’m not a doctor. I don’t know. I just know that in my -- my relationship
       with Mr. Johnson and in speaking with him, that I did not believe that he

                                             23
       suffered from mental retardation.

       Defense counsel further testified he remembered Mr. Johnson “was slow” and “had

concerns about his mental ability to understand what’s going on.” But he said, “it never

occurred to me to request a hearing or that he was mentally retarded or that there was --

there was any issue as such.” He testified that, in his perception, the difference between

his perception of Mr. Johnson as developmentally slow and a diagnosis of intellectually

disabled was “semantics.” Defense counsel testified Mr. Johnson did not seem to have

difficulty understanding him, and he never had concerns Mr. Johnson did not understand

what he was telling him. Defense counsel noted Mr. Johnson “wrote letters,” saying there

was “a whole bunch of written correspondence from Mr. Johnson.” He also testified any

argument Mr. Johnson was intellectually disabled would be unconvincing to a jury because

of the facts of the case – that, “because he could have run away … while the co-defendant

was struggling with this man Mr. Johnson could have left, but he didn’t.” 9

        Defense counsel essentially testifies he did not need to pursue a court

determination of intellectual disability because he casually talked with Mr. Johnson and

then decided Mr. Johnson was slow but seemed to understand him. This recreates exactly

the type of reliance on ad hoc, anecdotal impressions that the Supreme Court has said,

“create[s] an unacceptable risk that persons with intellectual disability will be executed.”



9
  The motion court similarly asked Mr. Johnson questions about those same behaviors
during the evidentiary hearing such as, “You would write me letters about problems you
were having in the jail, right?” “[W]e communicated and it doesn’t seem to me that we –
that there wasn’t any problem between you and I during that time that I’m aware of; is that
accurate?”
                                            24
Moore I, 137 S. Ct. at 1051 (internal quotation omitted). Defense counsel believes the

difference between being developmentally slow and being diagnosed as intellectually

disabled is “semantics.” It is not semantics. The distinction carries extraordinary legal

significance.

       D.       Plea Counsel Inappropriately Conflated a Finding Mr. Johnson Is
                Competent with a Determination of Whether Johnson Is Intellectually
                Disabled

       The record also shows counsel – and more unfortunately the principal opinion and

the motion court – continued to confuse the difference between incompetency and

intellectual disability, despite the United States Supreme Court’s explicit recognition that

the two are different, both factually and in legal consequence. And counsel did so based

on his personal perceptions of what he believed to be Mr. Johnson’s competency rather

than based on medical evidence of his intellectual disability.

       At the hearing on Mr. Johnson’s Rule 24.035 motion, defense counsel testified he

asked Dr. Armour to conduct a competency exam and report because:

       I had some educational records which indicated that there might be some --
       might be some developmental issues. Also, due to the fact that it is such a
       serious case I thought that would be appropriate and also because if -- when
       you look at the facts of the case and look at possible defenses, having some
       type of diminished mental capacity may have been advantageous for trial.

       Defense counsel requested only a competency exam, not a full examination of

Mr. Johnson’s intellectual or cognitive functioning. Despite these being separate concepts

and defenses, defense counsel testified that, because the report from Dr. Armour stated

Mr. Johnson was competent, he did not take steps to inform his client (or bring up in court

or in plea negotiations) that his multitude of records showing low IQ, deficit in adaptive

                                            25
behaviors, and the consistent diagnosis of “mild mental retardation” also had legal

ramifications.   When asked by the State at the evidentiary hearing, “coupled with

Dr. Armour’s evaluation and your personal interactions with [Mr. Johnson], you felt that it

was not a good trial strategy to try to argue the defendant was mentally retarded and

ineligible for the death penalty?” defense counsel agreed that was true.

       Mr. Johnson raised these failures in the motion court in support of his claim that

counsel was ineffective, arguing that counsel’s failure to inform him those with “mild

mental retardation” cannot be executed caused him to plead guilty rather than go to trial.

Mr. Johnson also argued the evidence showed he was incompetent. The motion court

conflated these two claims into one, just as defense counsel had done, and found, because

Dr. Armour had found Mr. Johnson competent, it was just speculation another evaluation

would reach “a different conclusion” about his competence:

       It is certainly reasonable for plea counsel to rely upon the evaluation
       conducted by a psychologist who is a certified forensic examiner and is
       employed by the agency designated by Missouri Statute to determine
       competency to proceed to trial rather than hope that a different evaluator paid
       by plea counsel would come to a different conclusion.

       While the motion court’s reasoning in rejecting appointment of another competency

expert is sound, it fails to recognize this did not address Mr. Johnson’s separate claim that

the record showed he was intellectually disabled and counsel was ineffective in failing to

so recognize and present that defense or ask for another evaluator of that mental condition.

Indeed, the “certified forensic examiner,” Dr. Armour, on whose exam the motion court

relies on, actually found Mr. Johnson was intellectually disabled but was competent – the

very distinction recognized in Atkins but not by defense counsel or the motion court.

                                             26
       Unfortunately, rather than untangling the motion court’s mixing of Mr. Johnson’s

two defenses, the principal opinion doubles down on it. In addressing Mr. Johnson’s

argument that his counsel should have objected to the competency report, the majority

opinion uses the lack of merit of that objection to also reject Mr. Johnson’s claim that his

counsel should have followed up on the issue of intellectual disability, stating:

       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))”

(Emphasis added).

       But the majority opinion’s reasoning misses Mr. Johnson’s point entirely. The issue

is not that his counsel should have recognized his intellectual disabilities through his

interactions with Mr. Johnson – as previously discussed, Moore I and Moore II reject use

of lay perceptions as a permissible basis for determining intellectual disability. The issue

is that Dr. Armour’s examination reconfirmed that, while Mr. Johnson was competent, it

also put defense counsel on notice that Mr. Johnson was again diagnosed with “mild mental

retardation.”

       Far from stating the motion court should have altogether rejected Dr. Armour’s

report, Mr. Johnson complains a competency exam is not enough to firmly establish

intellectual disability but, ironically, did give defense counsel enough information that he


                                             27
should have known to present an intellectual disability defense, if the existing records

somehow were not enough already. The principal opinion continues to confuse the

difference between the two by writing an attorney does not need to seek further evaluation

of intellectual disability when there is a competency exam on file.

       To summarize: when plea counsel was advising Mr. Johnson, the evidence on hand

showed multiple diagnosis of “mild mental retardation” beginning at age 10, an IQ score

of 53, and a lifetime of maladaptive behaviors. The evaluation of Mr. Johnson done before

the motion court, the third independent evaluation that has found Mr. Johnson’s IQ was 63

and in the bottom first percentile of intellectual functioning, only underscores these

findings.   Simply put, the evidence of Mr. Johnson’s intellectual disability was

overwhelming and obvious. It squarely put Mr. Johnson within the compass of those

ineligible for the death under Atkins.

       Yet defense counsel did not understand that governing Supreme Court precedent

mandated the death penalty was off the table – even if Mr. Johnson were found guilty of

first-degree murder – so long as intellectual disability could be established. Defense

counsel did not understand this because he did not understand how competence is different

than intellectual disability. He did not understand this because he believed he could tell

who is intellectually disabled, even without medical training. And he did not understand

this because he never read any of the governing Supreme Court precedent.

       This, as explained infra, does not match any precedent regarding what constitutes

effective assistance of counsel, and this Court should not deem it acceptable.



                                            28
IV.    MR. JOHNSON SUFFERED FROM INEFFECTIVE ASSISTANCE OF
       COUNSEL AS DEFENSE COUNSEL FAILED TO INFORM HIM OF BASIC
       FACTS ABOUT HIS ELIGIBILITY FOR THE DEATH PENALTY AND GAVE
       HIM NO INFORMATION ABOUT A RELEVANT DEFENSE

       Despite this extraordinary record, the principal opinion is able to affirm the motion

court’s finding that Mr. Johnson did not suffer ineffective assistance of counsel by finding,

“The record in this case refutes Johnson’s assertion that his counsel threatened him or

provided any ‘false or ill-founded’ advice. Drew, 436 S.W.2d at 729.” This ignores the

facts and law set out below, as well as the appropriate standard for granting postconviction

relief, which requires counsel to inform the defendant of the various courses of action and

defenses as well as the possible outcomes of a trial.

       If a movant’s plea is the product of “fraud, mistake, misapprehension, fear, coercion,

or promises,” he or she should be permitted to withdraw his or her guilty plea.” Tillock v.

State, 711 S.W.2d 203, 205 (Mo. App. S.D. 1986), citing Latham v. State, 439 S.W.2d 737,

738 (Mo. banc 1969). Further:

       It is beyond dispute that a guilty plea must be both knowing and voluntary.
       The standard was and remains whether the plea represents a voluntary and
       intelligent choice among the alternative courses of action open to the
       defendant. That is so because a guilty plea constitutes a waiver of three
       constitutional rights: the right to a jury trial, the right to confront one’s
       accusers, and the privilege against self-incrimination.

Parke v. Raley, 506 U.S. 20, 28-29 (1992) (internal quotations and citations omitted)

(emphasis added). Courts will find ineffective assistance of counsel when the evidence

shows plea counsel failed to inform the defendant of a relevant defense, the defendant pled

guilty having no recourse to know such a defense at trial would be available, and the

defendant credibly asserts they would not have pled guilty if he or she had the full

                                             29
information. Bequette v. State, 161 S.W.3d 905, 908 (Mo. App. 2005). 10

       There is no question defense counsel failed to inform either himself or Mr. Johnson

of the fact that Mr. Johnson diagnoses of intellectual disability, if accepted by the jury,

would preclude the death penalty as a matter of law and would strengthen his claims that

diminished capacity also diminished his culpability to the level of second-degree murder

or voluntary manslaughter. These are technical and legal elements of proof and defense

that are outside of the common knowledge of a lay defendant. Whitehead v. State, 481

S.W.3d 116, 125 (Mo. banc 2016) (holding lawyers must properly advise of a defense to

ensure a plea is voluntary when “the legal concept underlying the potential [defense] … is

not as evident to a non-lawyer” (internal quotations omitted)).

       This Court’s cases have required counsel to explain these defense concepts to the

defendant to ensure his plea was “a knowing and intelligent act done with sufficient

awareness of the relevant circumstances and likely consequences.” Cooper v. State, 356

S.W.3d 148, 153 (Mo. banc 2011). This is because:

       While counsel may ultimately advise a defendant to plead guilty based on
       the circumstances in a given case, counsel still has the basic duty to discuss
       the circumstances and possible consequences of entering a plea, including
       possible defenses to the offense charged, in order to ensure that the defendant
       makes an informed and intelligent decision about waiving the right to trial.


10
   Often, these claims closely overlap with claims counsel has failed to investigate, another
area in which courts have been willing to declare ineffective assistance of counsel. Hinton
v. Alabama, 571 U.S. 263, 274 (2014) (“An attorney’s ignorance of a point of law that is
fundamental to his case combined with his failure to perform basic research on that point
is a quintessential example of deficient performance under Strickland.”). As the principal
opinion points out, the facts of Mr. Johnson’s case raise serious concerns his plea counsel
failed to adequately investigate his claim, although the principal opinion finds it does not
have to reach that issue due to rules of preservation.
                                             30
Wiggins v. State, 480 S.W.3d 379, 383 (Mo. App. 2015). A plea “must not only be a

voluntary expression of the defendant’s choice, it must be a knowing and intelligent act

done with sufficient awareness of the relevant circumstances and likely consequences

of the act.” State v. Hunter, 840 S.W.2d 850, 861 (Mo. banc 1992) (emphasis added).

         Similarly, Rice v. State, 585 S.W.2d 488, 493 (Mo. banc 1979), on which the

majority opinion relies to note correctly that counsel was required to inform Mr. Johnson

that the death penalty was not off the table, also stated the defendant was entitled to

“identify any particular item of information … that the attorney failed to seek out, and …

allege that had such information been available appellant would not have entered a guilty

plea.”

         That is just what Mr. Johnson does here. He raised the failure to meet this standard

here, arguing in his amended Rule 24.035 motion to the trial court, “Had his lawyer insisted

a proper mental health evaluation be performed, Ronald would have known that the state

could not achieve its stated goal of the death penalty. Therefore, Ronald was misled,

misinformed, and coerced into accepting a life without the possibility of parole sentence

when this sentence was the maximum he could get at trial.” (Emphasis added).

         Defense counsel not only failed to inform Mr. Johnson that he could be found to be

ineligible for the death penalty, but he also in fact affirmatively misinformed Mr. Johnson

that there were only three potential outcomes to resolve his case. Defense counsel testified

that his normal practice as an attorney was to “express the charges, what the ranges of

punishment are and what are the possible outcomes.” Defense counsel testified he told

Mr. Johnson there were three options: first, “if he pled guilty he would have been eligible

                                              31
for the death penalty;” second, “he could be found guilty of murder in the first degree and

that he could possibly get life in prison;” and “a third possible outcome that if by some

wonderful – wonderful opportunity we might possibly be able to get a murder second

through some diminished capacity defense or something like that.”

       Defense counsel contended in his testimony, and the principal opinion accepts, that

his communication with Mr. Johnson was not misleading or inadequate because he did not

“go to [Mr. Johnson] and say if you were found guilty you would get the death penalty,

absolutely not.” But defense counsel acknowledges he had a full conversation with Mr.

Johnson where he presented all “the possible outcomes” for Mr. Johnson to avoid getting

the death penalty. He further acknowledges this did not include him informing Mr.

Johnson there was a legal avenue to have a fact finder conclude Mr. Johnson was

intellectually disabled.

       “A plea of guilty is not made voluntarily if the defendant is misled.” Drew v. State,

436 S.W.2d 727, 729 (Mo. 1969) (internal quotations omitted). It is misleading for counsel

to inform a defendant there are a finite number of possibilities for how his or her case could

be resolved through plea or trial when the defense counsel omits a major relevant defense

from that list of possibilities. It was unreasonable for plea counsel to contend, and the

motion court to affirm, that plea counsel did not need to inform a person with a recorded

IQ of 53 and a lifetime of “mild mental retardation” diagnoses that the evidence supports

a finding they are intellectually disabled. Defense counsel’s performance in failing to

inform Mr. Johnson of this defense fell below an objective standard of reasonableness.



                                             32
V.     DEFENSE COUNSEL’S INCOMPETENCE CAUSED PREJUDICE AS
       MR. JOHNSON CREDIBLY STATES HE WOULD NOT HAVE PLED GUILTY
       AND WOULD HAVE GONE TO TRIAL HAD HE KNOWN INTELLECTUAL
       DISABILITY DISQUALIFIES SOMEONE FOR THE DEATH PENALTY

       “To show prejudice in a case where the movant entered a guilty plea, the movant

must show a reasonable probability that, but for counsel’s unprofessional errors, movant

would not have pleaded guilty and would instead have insisted upon going to trial.” State

v. Nunley, 980 S.W.2d 290, 292 (Mo. banc 1998), citing Hill, 474 U.S. at 59.

       Both Mr. Johnson and defense counsel acknowledged in their testimony that the

plea was specifically entered into to avoid the possibility of death. Defense counsel

testified the prosecution offered to not seek the death penalty in exchange for Mr. Johnson

testifying against his co-defendant, as prosecutors even at the beginning of the case

believed Mr. Johnson was the less culpable party. But Mr. Johnson stated at his evidentiary

hearing on his Rule 24.035 motion that, had he known of the existence of the defense to

death eligibility, he would not have pled guilty but instead would have gone to trial. He

specifically stated, if he had been properly informed of this defense to the imposition of

death, he would not have accepted a plea deal based solely on avoiding the death penalty:

       Q. If someone had told you that being mentally retarded meant that you
       could not get the death penalty, would you have still pled guilty?
       A. No, ma’am.
       Q. Did you plead guilty to avoid the death penalty?
       A. Yes, ma’am.

(Emphasis added).

       Earlier in the case, the State tried to rescind the deal and put death back on the table

after it was discovered Mr. Johnson was receiving letters from his co-defendant, Cleophus


                                              33
King, while in jail. The trial court held a hearing on the State’s motion to withdraw Mr.

Johnson’s plea. Mr. Johnson testified Mr. King had been writing him about Mr. King’s

plot to kill one of the prosecutors. Mr. Johnson also agreed to Mr. King’s suggestion,

through a series of letters, to commit suicide and “let [Mr. King] put the entire case on

him.” After Mr. King was moved to a different facility, Mr. Johnson asked if he could go

through with the plea as he was no longer scared of Mr. King. The trial court then overruled

the State’s motion to withdraw Mr. Johnson’s plea despite his misconduct in

communicating with Mr. King. The trial court issued an order basing this denial on the

fact that, “The Defendant is a young man with a slow learning disability” and “cooperation

with Cleophus King was a result of intimidation.” (Emphasis added). Stunningly, even at

this point, neither defense counsel nor the trial court stopped to consider whether someone

who had a “slow learning disability” was even death eligible. Instead, the trial court

allowed Mr. Johnson to go through with the plea in order to help him avoid the death

penalty.

       The motion court did not find credibility lacking in Mr. Johnson’s statement that he

would not have pled guilty had he known he could have asked to be found ineligible due

to intellectual disability. Rather, because of a lack of familiarity with Atkins, Moore I, and

Moore II, and how to determine intellectual disability, the motion court disagreed that Mr.

Johnson was not death eligible, so that “The plea agreement offered by the State and

accepted by Movant was the only guarantee that the death penalty was ‘off the table.’”

       The principal opinion believes there was not prejudice, writing:

              It would have been up to a judge or jury to find that Johnson was

                                             34
       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. 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

(Emphasis added).

       In other words, the principal opinion concedes counsel may have been deficient in

informing Mr. Johnson of his possible defenses but suggests no prejudice results. The

principal opinion, like the State, does not offer any specific evidence or reasoning to

support its conclusory statement that neither the plea offers from the State nor the trial itself

would be impacted by Mr. Johnson pursuing a determination he was intellectually disabled.

It just apparently presumes that, if the State is technically able to seek the death penalty, it

would be unreasonable for Mr. Johnson to reject it and go to trial, even if there is a viable

legal defense or piece of evidence that, if accepted, would change the outcome.

       This assumption is inconsistent with the fact it was Mr. Johnson’s right to consider

the exceedingly small risk the jury would reject the overwhelming evidence of intellectual

disability and weigh that risk against the finality of the death penalty in deciding whether

to accept a plea agreement that gave him the harshest sentence he could have received

under the law if the death penalty were excluded. This assumption is also inconsistent with

Missouri’s prior cases, which have found prejudice when criminal defendants were not

                                               35
permitted to weigh the viable defenses, even though mounting a defense is a trial strategy

decision that is not guaranteed. The cases are clear a defendant need not prove a defense

would be successful to have the right to be properly informed of it.

       For instance, the court of appeals in Wiggins, 480 S.W.3d at 383, remanded for an

evidentiary hearing when the movant plausibly alleged facts showing that counsel failed to

discuss the viability of arguing for a conviction of voluntary manslaughter rather than

second-degree murder, rejecting the motion court’s reasoning this defense may not have

mattered due to the existence of contrary evidence on defendant’s mental state. The court

held, “While there is no guarantee that Movant would have successfully convinced a jury

that he committed voluntary manslaughter rather than second-degree murder, he was

entitled to weigh that option before pleading guilty.” Id. at 384 (emphasis added).

       In Bequette, 161 S.W.3d at 908, a criminal child support case, the appellate court

found the defendant’s plea should be vacated if the facts at the evidentiary hearing showed

plea counsel told him the non-support records were totally determinative of his guilt and

failed to inform him of or investigate a defense based on in-kind support, despite the

counsel having evidence of this potential defense.

       Likewise, in Rinehart v. Brewer, 561 F.2d 126, 132 (8th Cir. 1977), the Eighth

Circuit found ineffective assistance of counsel when counsel did not inform a 15-year old

defendant (or his parents) of the possibility of a manslaughter conviction or a self-defense

argument before the defendant pled guilty to second-degree murder. There, as here, the

outcome of the defense was uncertain as the ultimate determination of the defendant’s

mental state was up to the jury. But, still, the court held that the guilty plea was not

                                            36
voluntarily entered “because he was unable to make an intelligent and informed choice

from among his alternative courses of action.” Id.

       And this Court has found defense counsel’s “failure to pursue even a single

important item of evidence may demonstrate ineffectiveness and prejudice sufficient to

warrant a new trial.” State v. Wells, 804 S.W.2d 746, 748 (Mo. banc 1991). This is, of

course, if the withheld information is of a kind that could have affected the result of the

trial. Hayes v. State, 711 S.W.2d 876, 879 (Mo. banc 1986). 11 A person’s eligibility for

the death penalty in a capital murder case is just that.

       Certainly, this Court cannot say with certainty how a jury would respond to the

evidence of his intellectual disability. But neither could Mr. Johnson’s counsel. Preserved

for the defendant is the ability to decide whether to maintain his innocence of the death

penalty, even with all the attendant risks, even though counsel may certainly discuss it with


11
   This same inquiry and approach has been used by a wide variety of federal and state
supreme courts. See Dando v. Yukins, 461 F.3d 791, 798-802 (6th Cir. 2006) (holding it
was deficient for counsel to advise petitioner to plead no-contest without first investigating
through an expert the possibility of a duress defense based on battered woman’s syndrome
and to misinform the petitioner that retaining an expert would be done with her personal
funds rather than with state funds); Clay v. Dir., Juvenile Div., Dep’t of Corr., 631 F.2d
516, 519-520 (7th Cir. 1980) (holding a guilty plea to be involuntary and remanding for
hearing on counsel ineffectiveness when defense counsel failed to inform a juvenile, who
was home alone fending off a gang with a knife, that a defense of dwelling or self-defense
argument could be made before she pleaded to assault with a deadly weapon); Mendenhall
v. Hopper, 453 F. Supp. 977, 987 (D. Ga. 1978) (holding defendant’s plea counsel was
ineffective when he failed to adequately inform and advise his client as to the advisability
of utilizing an insanity defense when mental evaluation revealed probable issues with
defendant and such defense was the only available defense); Commonwealth v. Santiago,
414 A.2d 1016, 1017-1018 (Pa. 1980) (holding guilty plea was improperly induced when
defendant’s alleged intoxication could have negated the specific intent element of the
robbery offense, and defense counsel erroneously advised the defendant that no defense
based on intoxication was available).
                                              37
his or her client explaining why, in counsel’s view, conceding guilt would still be the best

option. McCoy v. Louisiana, 138 S. Ct. 1500, 1508 (2018). Mr. Johnson asks this Court

to vacate his guilty plea knowing full well that, on remand, he will have the burden to prove

his intellectual disability. He deserves the opportunity to act on that choice.

VI. CONCLUSION

       What is at stake is whether a man who is intellectually disabled must serve life in

prison without parole because his counsel failed to understand the meaning or consequence

of intellectual disability under the law governing imposition of the death penalty. I would

find Mr. Johnson has shown his defense counsel’s performance was far outside the degree

of skill, care, and diligence of a reasonably competent attorney given counsel’s complete

failure to inform Mr. Johnson of a possible defense to the death penalty.

       Counsel’s deficient performance stemmed from his incompetence in failing to

familiarize himself with relevant law surrounding the eligibility for the death penalty and

his inability to recognize the difference between competency and intellectual disability. I

would further find there is a reasonable probability that, but for these errors, Mr. Johnson

would not have pleaded guilty to a sentence of life without parole to avoid a death sentence

and instead would have insisted on going to trial. See Hill, 474 U.S. at 59.

       Given these facts, this Court should sustain Mr. Johnson’s Rule 24.035 motion

based on ineffective assistance of counsel, vacate his underlying sentence, and grant him a

new trial in the underlying criminal cause of action. Alternatively, the Court should

remand for a new evidentiary hearing at which a proper standard of review is applied

pursuant to Atkins, Moore I, and Moore II.

                                             38
For these reasons, I dissent.


                                     _______________________________
                                       LAURA DENVIR STITH, JUDGE




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