 

In the Missouri Court of Appeals
Eastern District

DIVISION TWO
WILLIE EWING, ) EDl02550
l
Appellant, ) Appeal from the Cireuit Court
) of the City of St. Louis
v. ) 1322-€€09067
)
STATE OF MISSOURI, ) Honorable loan L. Moriarty
)
Respondent. ) Filed: February 16, 2016

introduction
Willie Ewilig (Movant) appeals from the motion court’s judgment denying his
motion for post-conviction relief under Rule 24.035' (Ruie 24.035 Motion) after an
evidentiary hearing He argues his guilty plea was involuntary due to his counsel’s
faiiure to inform him that he could be terminated from the post~plea drug court program
(drug court) for being arrested. We affirrn.
Background
The State charged l\/lovant as a prior and persistent offender with second-degree
trafficking (Count I), felony possession of a controlled substance (Count II),
misdemeanor possession of a controlled substance (Count III), and rnisdeineanol'

possession of drug paraphernalia with intent to use (Count IV). Movant pled guilty in

1 All rule references are to Mo. R. C1'i1n. P. (2014), unless otherwise indicated.

January of 2009 pursuant to a plea agreement through which Movant would enter drug
court, and if he successfully completed the program, he would receive a suspended
imposition of sentence and be discharged from probation. However, if Movant was
terminated from drug court before coinpleting six active months in drug court, then the
State would establish Movant was a prior drug offender and Movant would be sentenced
to concurrent terms of 10 years without probation or parole on Count I, 10 years on
Count lI, and one year each on Counts IH and IV. If Movant was terminated from drug
court after coinpleting six months, then his sentence would be concurrent terms of 12
years on Count I, seven years on Count II, and one year each on Counts III and IV.

On Decembei' 22, 201 I, Movant was terminated from drug court because he was

2 The plea court sentenced Movant in

arrested and charged with possession of d1'ugs.
accordance with the terms of the plea agreement to a total of 12 years in the Missotlri
Depattment of Corrections because Movant had completed more than six inontlts in drug
court. Movant subsequently filed his Rule 24.035 Motion, arguing that his plea counsel
was ineffective for failing to advise him that he could be terminated from drug court for
being arrested. The motion court conducted a hearing, after which it denied Movant’s
motion This appeal foll_ows.
Standard of Review

Our review of the denial of a Rule 24.035 motion is "lirnited to a determination of
whether the findings and conclusions of the trial court are clearly erroneous." Rule
24.035(1<); Weeks v. State, 140 S.W.Sd 39, 44 (Mo. banc 2004). This Court will find
error only if, after review of the entire record, we have a definite and firm belief that a

2 Movant was ultimately acquitted of that charge, but not tmti| one year after his termination from drug
court.

mistake has been made. \_?V_eek_s, 140 S.W.3d at 44. On review, we defer to the motion
court’s credibility determinations, and the motion court’s findings are presumptively
coi'rect. Hu1'st v. State, 301 S.W.3d 112, 117 (l\/io. App. E.D. 2010).
Discussion

111 l\/Iovaiit’s sole point on appeal, he argues that the motion court clearly erred in
concluding his plea counsel was not ineffective for failing to iiiforiii Movant that he could
be terminated from drug court foi' being arrested. We disagree.

in order to prevail on a claim of ineffective assistance of counsel, Movant had to
show that his counsel’s performance was deficient and that he was prejudiced thereby.
Congei' v. State, 398 S.W.3d 915, 919 (Mo. App. E.D. 2()13) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). Where there is a plea of guilty, a claim of
ineffective assistance of counsel is immaterial "except to the extent that the conduct
affected the voluntariness and knowledge with which the plea was inade." Worthington

v. State, 166 S.W.3d 566, 573 (Mo. banc 2005). The burden falls on Movant to show that

but for the conduct of his trial counsel, he would not have pled guilty but would have
insisted on going to trial. Castor v. State, 245 S.W.3d 909, 913 (Mo. App. E.D. 2008).
Here, Movant argued that his plea counsel faited to inform him that he could be
terminated from drug court for being ai'rested, and this rendered his plea involuntary. At
the evidentiary liearing, Movant testified that his iinderstanding was that drug court was
like probation,3 and that there would be a lieariirg before he wouid be terminated from

drug court. Movant testified he was not aware of the grounds for termination from drug

court when he pled guilty because he did not meet with drug court personnel for

3 Movant testified lie liaci been on probation with the Missouri Board of Probation and Pai'ole before.
3

screening and orientation until after his plea. At the same tinie, Movant acknowledged he

did not expect to remain in drug court if he was involved in additional drug offenses:
[State]: [D]id you really believe that you could go into a drug
court and pick up new drug cases and be allowed to continue in

d1'ug court?

[Movant]: I inean, no. l can’t say I believe that, but that
wasn’t something I was expecting.

Movant also acknowledged that before being terminated from drug court, he had had an
incident with alcohol and rnarijuana. Drug court personnel did not terminate him from
drug court at that time, but they did "btimp [him] down" a level of progress

Movalit’s plea counsel also testified at the evidentiary hearing. He stated that he
would generally give his clients an overview of drug court and tell them that it is a "tough
program," but he would not discuss specifics of the drug court program. He testified that
he would not have explained the termination procedure or have told Movant specifically
that he could be terminated from drug court for being arrested. Plea counsel did not
believe it was his role to go through every possible ground for termination from drug
court. He said, "You don’t go through a specific laundry list, you just tell the client they
need to do whatever it is they need to do. Whatever the [drug court personnel] tells them
to do." Counsel believed it was the role of drug court personnel at the time they are
screening a defendant for admission to the program to inform the defendant regarding the
specifics and procedures of drug court.

For a plea to be voluntary, a defendant "ntust enter the plea with knowledge of the
direct consequences of the plea." Btirgess v. State, 455 S.W.3d 21, 24 (Mo. App. E.D.
2014) (quoting Reynolds v. State, 994 S.W.Zd 944, 946 (Mo. banc 1999)). "Direct

consequences are those \vliiclr defmitely, immediately and largely automatically follow

the entry of a plea of guilty.” Lg@, 455 S.W.$d at 24 (quoting Ramsey v. State, 182
S.W._’)d 655, 659 (Mo. App. E.D. 2005)). Counsel and the trial court have a duty to
advise a defendant regarding any direct consequences of a guilty plea before the
defendant enters such a plea. id

However, regarding consequences that are collateral to a plea of guilty, such as
the defendant’s parole eligibility, counsel and the trial court are under no affirmative duty
to inform the defendant before he or she pleads guilty. Webb v. State, 334 S.W.Bd 126,
129 (Mo. banc 2011). The motion court concluded that the possibility that Movant could
be terminated from drug court for getting arrested was a collateral consequence of
Movant’s plea, and counsel was not ineffective for failing to inform Movailt about this
possible consequence. The motion court did not clearly err in inakiiig this conclusion.

The record reflects that there were several possible grounds for termination from
drug court, and Movant was aware when he pled guilty that it was a program he would
have to successfully complete in order to avoid serving any ti1ne in prison. Movant’s
termination from drug court did not immediately or automatically flow from his guilty
plea; rather, it came only after Movant’s arrest established grounds for termination. C_f
Haddock v. State, 425 S.W.3d 186, 190 (Mo. App. E.D. 2014) (counsel not ineffective
for failing to inform movant of collateral consequence that movant may be denied
probation if he unsuccessfully completed shock incarceration program). Even upon
Movant’s arrest, termination was not certain, but only possible according to the drug
court procedure manual. Plea counsel’s failure to discuss such possible consequences of
Movant’s guilty plea was not ineffective assistance. §§ Law v. State, 893 S.W.Zd 884,

886 (Mo. App. S.D. 1995) (affirining motion court’s finding that “[t]o require each

specific and minute detail of rnovant’s probation and counseling programs [required by
the plea agreement] to be disclosed to movant before he entered his guilty plea is
imreasoiiabie and ‘akin’ to asking the trial judge, prosecutor, and defense attorney to
predict the future").

Movant urges us to find that his counsel had a cluty to inform him of this
particular collateral consequence in light of the United States Stlpreme Court’s holding in
Padilla v. Kentucky, 559 U.S. 356 (2010). There, the Suprenie Court held that plea
counsel had a duty to inform a rioncitizeii defendant of the deportation consequences of
his guilty plea where those consequences were clear. l;d. at 368-69. Movarit argues that
the consequences here were similarly clear and certain to result from Movant’s plea. We
disagree

Missotlri courts have declined to extend the holding in Ragl__ill_a beyond the
deportation context. Simmons v. State, 432 S.W.Bd 306, 310 (Mo. App. E.D. 2014)
(citing cases). While we cannot determine whether an appropriate context will arise in

which Padiila should be extended, this is not it. Unlike the deportation in Padilla,

Movalit’s termination from drug court for being arrested was by no means an autoinatic
or immediate consequence to pleading guilty. There was no way to predict that any of
the several grounds for termination front drug court would result; Movant could have
successfully completed the program with no consequence whatsoever. Requiring counsel
to discuss the litany of possible grounds for termination would be impractical and
burdensome; especially here, where Movant’s counsel told him it was a "tough program"

and to do everything drug court personnel told him to do. Thus, we do not find that

m requires us to find a duty on the part of Movant’s counsel here to specifically
inform Movant that he could have been terminated from drug court for being arrested.

Moreover, Movant acknowledged that he did not believe he could be arrested for
a drug-related offense and still reinain in drug court, but he simply did not expect that he
would be terminated. This was not Movant’s first offense, and certainly having been on
probation before, Movant was aware that these programs to avoid incarceration carry
conditions that will trigger jail time if violated. Movant was also aware of the sentence
he would receive were he not to successfully complete drug court. Additionally, after
Movant was terminated from drug court, during sentencing, the court asked Movant
whether he had any coniplaints about his attorney. He responded that his counsel "did
excellent." When asked whether his attorney could have done anything that he did not
do, Movaiit said, "No, [he] did \vhat {he] could." Movant failed to establish his counsel
provided ineffective assistance here such that Movant’s plea was involuntary.

Moreover, even with Movant’s failure to successfully complete drug court,
Movant ultimately received a IZ-year sentence with the possibility of parole. The
charges against Movant, if convicted as a prior offender, carried a possible sentence of
10-30 years without the possibility of probation or parole (Count I), 5-15 years (Count
il), and one day to one year (Counts III and IV). If not convicted as a prior offender,
Movant still faced the same time on Counts III and IV, lO-30 years or life on Count I, and
l-7 years on Count II. Movant failed to establish by a preponderance of the evidence that
if his counsel had informed him of the possibility of being terminated from drug court for
being arrested, Movant would have rejected the plea agreement and insisted upon going

to trial. Point denied.

Conclusion

The motion court did not clearly err in denying Movant’s Rule 24.035 Motion.
Movant’s counsel did not have an affirmative duty to inform Movant of the collateral
consequences of his guilty plea; namely, the possibility of termination from drug court
for being arrested. Movant failed to establish by a preponderance of the evidence that his
guilty plea was involuntary based on counsel’s advice where counsel informed Movant
that drug court \vas a "tough program" and that Movant would have to do everything they
asked him to do to be successful, and Movaitt was aware of the sentence he would

receive if he did not successfully complete the prograni. The motion court’s judgment is

affn‘med.

 

Philip M. Hess, P. J., concurs.
Aiigela 'l`. Quigless, J., concurs.

