 

In the Missotcri Conrt of Appeals

Eastern District
DIVISION FOUR
TYRONE ARNOLD, ) No. ED102943
)
Appeliaiit, ) Appeal fi'oin the Circuit Court
) of the City of St. Louis
vs. )
)
STATE OF MISSOURI, ) Hon. John Garvey
)
Respondeiit. ) FILED: April 26, 2016

introduction

Appellant Tyrone Arnolcl ("Arnold") appeals from the judgment of the motion court
denying his Rule 24.035 motion for post~conviction relief without an evidentiary lieariiig.
Arnold pleaded guilty, pursuant to a plea agreement, to voluntary inanslailglitei' and received a
sentence of 20 years’ imprisonment On appeal, Arnold contends the motion court clearly erred
in denying his Rule 24.035 motion because Ariiold alleged facts showing that he was denied
effective assistance of counsel, in that his attorneys (collectively referred to as "plea counsel")
were ineffective for refusing to make offers of 10 and 15 Years’ imprisonment in exchange for
Arnold’s guilty plea to voluntary inanslaugliter. Ariiold further claims the motion court abused
its discretion in denying his request to disqualify the City of St. Louis Circuit Attorney’s Office
("the Circuit Attoriiey") from representing the State in this inatter. Because the record of

Ariiold’s guilty plea and sentencing directly refutes that his guilty plea was involuntary and

tlnknowiiig, and because his motion to disqualify the Circuit Attorney is inoot, we affirm the
judgment of the motion court.
Factual and Procedural History

The State charged Arriold with first-degree inurdei' and subsequently filed a notice of its
intent to seek the death penalty. On July 3, 2014, Arnold pleaded guilty to voluntary
nianslaiighter' as part of a plea agreement negotiated between plea counsel and the State. As part
of the plea agreement, the State filed an information reducing the first-degree murder cliarge to a
charge of voluntary inanslaughter' and charged Arnold as a dangerous offender based on a prior
conviction for second-degree inurder.

At the outset of the guilty plea hearing, plea counsel announced that, "[i}n light of the
negotiations with the State of Missotlri and the amended charge that has been filed," Arnold had
decided to withdraw his not guilty plea and enter a plea of` guilty "pursuant to the plea agreement
with the State." Arnold confirmed that he wished to plead guilty to the charge of manslaughter.
The trial court asked Arnold if he understood that he was now being charged with voluntary
iiianslatigliter, a Class B felony, as a dangerous off`ender. Ariiold confirmed he understood
Arnold also stated that plea counsel had explained the charges to him so that he understood them,
which plea counsel confirmed.

The prosecutor then outlined the evidence it would present should the case proceed to
trial. Arnold confirmed that these facts were accurate and were “what [he] did." Arnold also
confirmed his previous guilty plea to second-ciegree rnurder. The trial court found Arnold to be a
dangerous offender based on his prior conviction.

The prosecutor proceeded to explain the range of punishment for voluntary Inanslaugliter

as a dangerous offender, The prosecutor explained that Arnold was subject to an enlianced range

counsel has the duty to connnunicate the terms of a formal offer to accept a plea

on terms and conditions that may result in a lesser sentence, a conviction on lesser

charges, or both.

Ly_, 132 S. Ct. at 1408 (emphasis added). Ruling only on that iiarrow issue, the Couit held that
“defense counsel has the duty to conirnunicate formal offers from the prosecution to accept a
plea on terms and conditions that may be favorable to the accused." I_d. The holding of frye
does not in any way extend to the facts of Arnold’s case.

Additionally, there is nothing in the record to suggest that plea counsel’s negotiation of a
ZO-year sentence for Arnold’s guilty plea to the lesser offense of voluntary inanslaughter
demonstrated anything but reasonable, effective, and competent assistance The State charged
Arnold with first-degree lnurdei' and sought the death penalty for a crime the motion court
described as "liorritic." Arnold had a prior conviction for second-degree inurder and had no
defense witnesses. In spite of these circumstances, plea counsel negotiated an agreement in
which Arnold pleaded guilty to voluntary inanslallglitei‘ in exchange for a ZO-yeai' sentence, a
result the motion court correctly concluded was "far more advantageous to [Arnold] than he was
likely to receive if he went to trial." Thus, plea counsel’s performance was far from deficient
The record instead underscores just how effective plea counsel’s performance was given the
facts and circumstances of Aniold’s case.

Because the record of Arnold’s guilty plea and sentencing hearing directly refutes that his
guilty plea was involuntary and unknowing, the motion court did not clearly err in denying his
Rule 24.035 motion without an evidentiary liearing. Point One is denied.

II. P0int Two_Motion to Disqualify the Circuit Attorney

The motion court concluded that because Arnold was not entitled to an evidentiary

hearing, the issue of whether the Circuit Attorney could represent the State at that hearing was

ll

moot. We agree with the motion court’s reasoning and conclusion. Ou1' holding as to Point One
renders Point Two moot. Point Two is denied.
Conclusion
The judgment of the motion court denying Amold’s Rule 24.035 motion for post-

conviction relief without an evidentiary liearilig is at`t`lrmed.

C¢M;c 0

RT S. ODENWALD, Jlidge

Slierri B. Sullivan, P.J., concurs.
Lisa P. Page, J., concurs.

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of punishment as a dangerous offender: "iiiiprisoninelit in the l\/lissouri Departinent of
Corrections for a term of years not less than ten yea1's, or up to thirty years or life iinprisonniezit."
The following exchange then occurred between the trial cotlrt, the prosecutor, and Arnold:

Trial Cou1't: Now, Mr. Arnold, you are making this plea pursuant to a stipulated
plea agreement; is that correct?

Arnold: Yes, sir.

Trial Cou1't: Now, [prosecutor], the basis of that stipulated plea agreement is-
what is the agreed upon sentence that the parties have agreed to in
this case?

Prosecutor: The State and the defendant have agreed that the appropriate
disposition would be for the defendant to serve a term of twenty
years imprisonment in Missouri Departinent of Corrections, and
for that sentence to run consecutive to the balance of time that he is
to serve in 22881-00851.

Trial Court: Now, l\/[r. Arnold, do you tlnderstaiid that that is what the
stipulated sentence is in this case?

Arnold: Yes, si1'.
Trial Court: And you have agreed to that; is that correct?
Arnold: Yes, sir.

The trial court produced the stipulation and plea agreement signed by Arnold and dated
that same day, July 3, 2014. Arnold confirmed that he had signed the document and that he
understood it. Arnold further stated that he voluntarily signed the document 'l`he trial court
again questioned Arnold about his lmderstaiiding of the plea agreement and the sentence he
would receive:

Trial Court: So you now know that it will be the sentence of this Court to give

you twenty years in the Missouri Departlnent of Corrections, and

that time will be consecutive to your prior murder in the second
degree conviction. ls that correct?

Arnold: Yes, sir.
Triai Court: That’s what you understand the sentence to be?
Arnold: Yes.

The trial court next questioned Arnold about his interactions with plea counsel:

Trial Court: [S]ince they have been assigned to your case, have you had an
opportunity to talk with them about your case?
Arnold: Yes, sir.

Trial Court: And you llave gone over the facts of this case with them, haven’t
you?

Arnold: Tliat’s correct.

Trial Court: In fact, several times you have met here in this courtroom with
your attorneys; is that correct?

Aniolcl: Yes, sir.

Trial Court: And that’s in addition to the times that you’ve met with them over
in the Justice Center?

Arnold: Jail. Yes sir.

The trial court went on to explain, and Arnold indicated that he ttnderstood the various
rights he was giving up by pleading guilty rather than proceeding to trial, including: the right to a
jury trial, the right to be found guilty beyond a reasonable doubt, the State’s burden of proof, the
necessity of a unaninious verdict in order to obtain a conviction, the right to not testify on his
own behalf, and the right to cross-examine the State’s witnesses

Arnold stated that he did not have any questions to ask either the trial court or plea
counsel before entering his guilty plea. The trial court asked Arnold whether anyone had
threatened, intimidated, or tricked him into pleading guilty. Arliold responded, "No, sir."
Ariiold proceeded to plead guilty to voluntary manslaughter. 'l`he trial court accepted the guilty
plea, finding that Arnold "knowiligly and voluntarily entered into this plea of guilt with a full
understanding of the charges and the consequences," and finding that a factual basis existed for
the guilty plea.

'I`he trial court proceeded immediately to sentencing Both plea counsel and the
prosecutor requested that the trial court follow the plea agreement The trial court did so,
sentencing Arnold to 20 yea1's’ imprisonment 'l`he trial court explained Arnofd’s post-
conviction rights under Rule 24.035, which Arnold indicated he understood.

Finally, the trial court asked Arnold a series of questions regarding plea counsel’s

performance, as weil as another question about the voluntariness of his guilty plea:

Trial Court:

Now, I have to ask you again, then, you have met with both of
your attorneys numerous times; is that correct?

Arnold: That’s correct.

Trial Court: And when you met with them, did you discuss your case?
Arnold: Yes, sir.

Trial Court: And did they answer those questions?

Arnold: Yes, sir.

Trial Court: Dicl you eventually tell them that you wanted to plead guilty?
Arnold: Yes, sir.

Trial Court: And that was your decision?

Arnold: Yes, it was.

'I`rial Court: No one fooled you or tricked you or forced you into that decision?
Arnold: No, sir.

Trial Court:

During the plea of guilty that we just went through, did they say or
do anything that you disagreed with?

Arnold: No.

Trial Court: Are you happy with their services?

Arnold: Yes, I am.

"l`rial Court: Should I know of any reason at all why they have not done an

adequate job for you?
Arnold: No, they did a good job for me.

The trial court found no probable cause to believe that Arnold received ineffective

assistance of counsel. Ariloid subsequently filed a timely pro se Rule 24.035 motion for post-
conviction relief. Post-conviction counsel was appointed and timely filed an amended motion
alleging plea counsel were ineffective for "reftlsing to make [Arnold’s] offer of ten and fifteen
years in exchange for his voluntary inanslaugliter plea as a dangerous offender.” Specifically,
Arnold alleged that he "wanted plea counsel to offer a ten-year sentence to see if the State would
be willing to accept it," and if rejected, he "waiited plea counsel to offer a fifteen-year sentence."
Instead, Ariiold alleged that plea counsel offered a twenty-year sentence. Arnold argued that if
plea counsel had offered 10~ and l5-year sentences, "there was a reasonable probability the offer
would have been accepted and the result of the proceedings would have been different."
ln addition to his amended niotion, Arnold filed a motion to disqualify the Circuit

Attorney’s office and appoint a special prosecutor to represent the State in adjudicating his post-

conviction claim. Ariiold alleged that Assistant Circuit Attorney Beth Orwick ("Orwick") and
any supervisors who were involved in the plea liegotiatioiis were "essential witnesses" who must
be disqualified
On April 1, 2015, the motion court entered its Findings of Fact, Conelusions of Law and
Order ("Order") denying Arnold’s amended motion without an evidentiary liearing. The motion
court also denied Arnold’s motion to disqualify the Circuit Attorney, finding the basis for the
motion inoot. The motion court concluded that Arnold had failed to allege facts not refuted by
the record which would entitle him to relief. The motion court noted that Arnold repeatedly
expressed satisfaction with plea counsel’s performance at the guilty plea hearing The motion
court also found that Arnold’s "suggestion that the State would have agreed to the minimum
punishment for the lesser degree homicide and that the Cou1't would have accepted such an
agreement amounts to rank speculation at best." Finally, the motion court rejected Arilold’s
contention that l\/lissouri v. Frye' was applicable, concluding that Amold’s case "is not at all
comparable to the situation in ELB  This is not a case where counsel failed to convey an
offer." '[`his appeal follows.
Points on Appeal
Ariiold raises two points on appeal First, Arnold contends the motion court clearly erred

in denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing
because he alleged facts showing he was denied effective assistance of counsel Specifically,
Ariiold claims plea counsel were ineffective for refusing to make offers of 10 and 15 years’
imprisonment in exchange for his guilty plea, in that the State was openly negotiating with plea

counsel and the term of years was liegotiable. Arnoid rnaintaiiis that had plea counsel offered a

1 Missouri v. Frye, 132 S. Ct. 1399 (2012).

sentence of 10 or 15 years, the State would have considered accepting the offers. Second,
Arnold avers the motion court abused its discretion in denying his request to disqualify the
Circuit Attorrrey from representing the State in this matter. Arnold claims that had the motion
court disqualified the Circuit Attorney, the outcome of the proceedings would have been
different.
Standard of Review

Appellate review of the denial of a Rule 24.035 post-conviction motion is limited to a
determination of whether the motion court’s findings, conclusions, and judgment are clearly
erroneous Wooldridge v. State, 239 S.W.3d i$l, 153~54 (Mo. App. E.D. 2007). The motion
court’s findings and conclusions are presumptively correct and will be overturned only when this
Court, after reviewing the entire record, is left with a "deflnite and firm impression that a inistake
has been rnade." Worthirigton v. State, 166 S.W.Bd 566, 572 (Mo. banc 2005). After a guilty
plea, our review is limited to a determination of whether the movant’s plea was knowing and
voluntary. Lotlderinilk v, State, 973 S.W.Zd 551, 553 (Mo. App. E.D. 1998).

'I`o obtain an evidentiary lieariirg under Rule 24.035 on a claim of ineffective assistance
of connsel, the movant must raise facts, not conclusions, warranting relief; the facts alleged must
raise rnatters not refuted by the record; and the inatters must have resulted in prejudice to the
movant. May v. State, 309 S.W.3d 303, 306 (Mo. App. E.D. 2010). Where a movant alleges
ineffective assistance of counsel following a guilty plea, if an examination of the guilty plea

proceedings directly refutes that the movant’s plea was involuntary, the movant is not entitled to

an evidentiary hearing. Watt v. State. 835 S.W.Zd 404, 406 (Mo. App. E.D, 1992).

Discussion

Because the Sixth Ainendineiit guarantees a defendant the right to have cotinsei present at
all "critical" stages of criminal proceedings, the right to effective assistance of counsel applies to
certain steps before trial, including plea negotiations. _E;E, 132 S. Ct. at 1405. Claims of
ineffective assistance of counsel in the plea bargain context are governed by the two-part test set
forth in Strickland v. Wasliiiigton, 466 U.S. 668 (1984). I_cL

in order to prevail on a claim of ineffective assistance of counsel, a movant must show by
a preponderance of the evidence (l) that his attorney failed to exercise the customary skill and
diligence that a reasonably competent attorney would perform tinder siinilar circumstances, and
(2) that he was prejudiced thereby. Sanders v. State, 738 S.W.Zd 856, 357 (Mo. banc 1987)
(citing Strickland, 466 U.S. 668). There is a strong presumption that counsel’s performance was
reasonable and effective. Zink v. State, 278 S.W.Bd 17(), 176 (Mo. banc 2()09). To overcome
this presumption, Arnold must point to "specific acts or omissions of counsel that, in light of all
the circumstances, fell outside the wide range of professional competent assistance." ld_.

Whe11 a claim of ineffective assistance of counsel follows a guilty plea, the claim of
ineffective assistance is "imniaterial except to the extent it impinges on the voluntariness and
knowledge with which a [movalit] pled guilty." Cain v. State, 859 S.W.Zd 715, 717 (Mo. App.
E.D. 1993). As a result, in order to prevail on an ineffective assistance of counsel claim
following a guilty plea, a movant "niust establish a serious dereliction of duty that materially
affected his substantial rights and further show that his guilty plea was not an intelligent or

knowing act." Evans v. State, 921 S.W.Zd 162, 164 (Mo. App. W.D. 1996).

I. Point Olle--Ineffective Assistance

A. Arnold’s claim is refuted by the record.

Arnold contends he alleged facts not refuted by the record entitling him to relief on his
ineffective assistance of counsel claim. We disagree.

Where a movant alleges ineffective assistance of counsel following a guilty plea, if an
examination of the guilty plea proceedings directly refutes that the lnovant’s plea was
involuntary, the movant is not entitled to an evidentiary liearing. W, 835 S.W.Zd at 406. To
preclude an evidentiary hearing, the motion court’s inquiries at the plea and sentencing liearirigs
"must be sufficiently specific to elicit responses conclusively refuting [the] nrovant’s
allegations." Thonias v. State, 249 S.W.$d 234, 238 (Mo. App. E.D. 2008).

Herc, the motion court’s questions and Arnold’s responses thereto specifically, directly,
and conclusively refute any claim that Arnold’s guilty plea was involuntary or unknowing 'l`lie
motion court repeatedly and specifically asked Arnold questions about whether he understood
the nature and consequences of his guilty plea, including the agreed-upon sentence and the
various rights he was giving up by pleading guilty rather than proceeding to trial. 'l`he motion
court also asked Arnold multiple times whether he was pleading guilty voluntarily, rather than
being tricked, forced, or coerced into doing so. Each time, Arliold assured the trial court he was
pleading guilty of his own volition and choice. Furtlier, the motion court repeatedly and in great
detail questioned Arnold about his ttnderstanding and acceptance of the specific terms of the plea
agreement Arnold repeatedly indicated his tinderstaiiding and acceptance Specifically, Arnold
confirmed that he understood the stipulated sentence was 20 years’ imprisonrnent, that he had
plenty of time to meet with plea counsel and discuss the case, that plea counsel explained the
plea agreement to him, and that he agreed to the plea agreement voluntarily. Finally, Arnold
repeatedly confirmed he understood he was giving up the right to proceed to trial by virtue of

pleading guilty.

The motion court asked specific questions and elicited specific responses indicating that
Arnold understood the terms of the plea agreement, including the agreed-upon sentence, as well
as the consequences of pleading guilty. Thus, the record of Arnold’s guilty plea and sentencing
hearing clearly reflects that he pleaded guilty voluntarily and with a full ttnderstandirig of the
terms and consequences of the negotiated plea agreement.

B. Frge is not appiicable.

We further note that even if Arnold’s allegations were not refuted by the record, iieither
g nor any other authority specifies that counsel is constitutionally obligated to inal<;e plea
offers to the State that are suggested by the defendant. Neither party has presented, nor has our
own careful research revealed, any authority to that effect.

The Suprenie Court has addressed two specific and narrow instances of attorney error in
the context of plea bargaining: (l)_féziling to co)nmunicate an existing offer to the defendant; and
(2) providing bad czdvice about an existing offer. §_e§ E_r§§, 132 S. Ct. 1399, and Lafler v.
L}M, 132 S. Ct. 1376 (2012), respectively. Arnold suggests that the Supreme Court’s holding
in §§ extends to the facts of this case. We are not persuaded. The facts found in §§ are
simply not present in the case at hand. Here, the only allegation of ineffective assistance is that
plea counsel did not extend Arnold’s desired offer to the State. Iinportantly, unlike in Eye, there
is no allegation that plea counsel did not inform Arnold about an existing plea agreement offer.

The Suprelne Court in F_rye was careful to note the iimited scope of its holding and
specify that it did not seek to define the duties of counsel during the bargaining process of plea
negotiations:

The inquiry then becomes how to define the duty and responsibilities of defense

counsel in the plea bargain process. This is a difficult question  This case

presents neither the necessity nor the occasion to define the duties of defense
counsel in those respects, llowever. Here the question is whether defense

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