KIMBERLY K. COOK,                             )
                                              )
       Movant-Appellant,                      )
                                              )
v.                                            )      No. SD35979
                                              )      Filed: February 7, 2020
STATE OF MISSOURI,                            )
                                              )
       Respondent-Respondent.                 )

            APPEAL FROM THE CIRCUIT COURT OF TANEY COUNTY

                       Honorable Laura J. Johnson, Special Judge

AFFIRMED

       Kimberly Keith Cook (Cook) appeals from an order denying his amended Rule

24.035 motion to set aside his four convictions for: robbery in the first degree; robbery in

the second degree; and two counts of armed criminal action (ACA).           See § 569.020;

§ 569.030; and § 571.015 RSMo (2000).1 Cook was sentenced to a concurrent 25-year

term of imprisonment on each of the four counts. Because the motion court’s decision to

deny relief after an evidentiary hearing was not clearly erroneous, we affirm.




       1
         All rule references are to Missouri Court Rules (2019). All statutory references
are to RSMo Noncum. Supp. (2014), unless otherwise indicated.
       Cook bore the burden of proving the grounds asserted in his post-conviction motion

by a preponderance of the evidence. Rule 24.035(i); Gales v. State, 533 S.W.3d 796, 799

(Mo. App. 2017). Appellate review of an order denying a motion for post-conviction relief

is limited to a determination of whether the court’s findings of fact and conclusions of law

are “clearly erroneous.” Rule 24.035(k); Booker v. State, 552 S.W.3d 522, 526 (Mo. banc

2018). “The motion court’s findings and conclusions are clearly erroneous only if,” after

review of the record, this Court is “left with a definite and firm impression that a mistake

was made.” Ross v. State, 335 S.W.3d 479, 480 (Mo. banc 2011); Booker, 552 S.W.3d at

526. On review, the motion court’s findings are “presumptively correct.” Wilson v. State,

813 S.W.2d 833, 835 (Mo. banc 1991); Gales, 533 S.W.3d at 799. The motion court was

free to believe or disbelieve any evidence, whether contradicted or undisputed, including

Cook’s testimony. See Vanzandt v. State, 212 S.W.3d 228, 231 (Mo. App. 2007). “This

Court defers to the motion court on matters of credibility.” Id.; see Stacker v. State, 357

S.W.3d 300, 303 (Mo. App. 2012). The following summary of facts has been prepared in

accordance with these principles.

       Cook was originally charged by a four-count information with two counts of first-

degree robbery and two counts of ACA. The information alleged that these offenses

occurred in October 2014 when Cook forcibly stole: (1) “a motor vehicle from B.C. while

armed with a deadly weapon”; and (2) “currency from P.H. while armed with a deadly

weapon[.]” Each count of the information also alleged that Cook was a prior and persistent

offender.

       Thereafter, a plea agreement was reached. In exchange for a guilty plea on all four

counts, the State agreed that each count would have a 25-year-sentence cap and that all of



                                             2
the sentences would run concurrently. The State also agreed to amend Count 1 from first-

degree robbery to second-degree robbery.

       In March 2017, a plea hearing was held, at which Cook entered his guilty plea to

robbery in the first and second degrees, and two counts of ACA. The plea court accepted

Cook’s plea. In June 2017, the plea court imposed sentences consistent with the plea

agreement.

       In November 2017, Cook timely filed a pro se Rule 24.035 motion for post-

conviction relief. Appointed counsel filed an amended motion.2          The amended motion

alleged, inter alia, that plea counsel were ineffective: (1) for failing “to act as intermediary

between [Cook] and the prosecutor in plea negotiations, which resulted in [Cook]

ultimately receiving and accepting a less-favorable offer than he would have received,

accepted and been sentenced to by the court had his attorneys adequately assisted [Cook]

in negotiations”; and (2) for representing Cook under “an actual conflict of interest that

adversely affected the adequacy of counsel’s representation[.]”

       In January 2019, the motion court conducted an evidentiary hearing, at which Cook

and his plea counsel testified. Thereafter, the motion court issued findings of fact and

conclusions of law denying post-conviction relief. With respect to the first claim, the

motion court found that Cook “did not show his attorneys failed to negotiate a better plea

offer.” With respect to the second claim, the motion court found that Cook “failed to show

a conflict of interest adversely affected his case.” This appeal followed. Additional facts

will be included below as we address Cook’s two points on appeal.



       2
         This Court has independently verified the timeliness of Cook’s post-conviction
motions. See Moore v. State, 458 S.W.3d 822, 825-26 (Mo. banc 2015); Dorris v. State,
360 S.W.3d 260, 268 (Mo. banc 2012).
                                               3
                                           Point 1

       Cook’s first point contends his plea counsel provided ineffective assistance during

plea negotiations. “It is well settled that the right to the effective assistance of counsel

applies to certain steps before trial” including “the entry of a guilty plea.” Missouri v.

Frye, 566 U.S. 134, 140 (2012). In Frye, the United States Supreme Court held that

“defense counsel has the duty to communicate formal offers from the prosecution to accept

a plea on terms and conditions that may be favorable to the accused.” Id. at 145. To show

prejudice from counsel’s deficient performance, “defendants must demonstrate a

reasonable probability they would have accepted the earlier plea offer [and that] the plea

would have been entered without the prosecution canceling it or the trial court refusing to

accept it[.]” Id. at 147. The following facts are relevant to this point.

       Cook’s plea counsel represented Cook over a two-and-a-half-year period and

consisted of three attorneys: Wendy Garrison (Garrison); James Egan (Egan); and Amy

Davis (Davis). All three attorneys testified. The following is a summary of their testimony.

       Garrison, who entered her appearance in October 2014, a week after the original

complaint was filed, gave the following testimony:

       1. The prosecutor made an offer of 25 years on each of the four counts to
          run concurrently.

       2. Garrison communicated that offer to Cook.

       3. Cook wanted to sit on the case for a while to see if the offer would get
          any better.

Thereafter, Garrison was transferred to a different county.

       Egan began representing Cook in May 2015. Egan gave the following testimony:

       1. Egan proposed to the prosecutor that the 25-year offer be a “cap.”



                                              4
       2. The prosecutor agreed to the 25-year cap on each count.

       3. Egan communicated that offer to Cook. With the cap in place, Egan
          also told Cook he would argue for lesser time at sentencing.

       4. Cook rejected the offer and felt what he needed was substance abuse
          treatment, proposing a treatment center in Hawaii.

       5. Egan set up a face-to-face meeting with the prosecutor about the
          proposed treatment, but the prosecutor refused to accept the treatment
          proposal.

       6. Egan then proposed a 20-year per count counteroffer to the prosecutor,
          but the prosecutor refused that counteroffer.

       7. Although Cook wanted Egan to propose 15-year sentences, Egan did
          not think it appropriate to make “frivolous negotiations” of even less
          time when the prosecutor had already refused the 20-year offer.

In January 2016, the prosecutor announced that because Cook rejected all previous plea

offers, these offers were revoked. In April 2016, Egan became aware of a conflict and filed

a motion to withdraw from Cook’s case. The court granted that motion in May 2016.

       Davis entered an appearance in Cook’s case in July 2016. Davis gave the following

testimony:

       1. Davis proposed 10 and 15 years’ imprisonment, but the prosecutor rejected
          these offers.

       2. Davis eventually persuaded the prosecutor to put the prior offer of the 25-year
          cap per count “back on the table.”

       3. Cook “wanted a few last-minute negotiations,” including dropping a first-
          degree robbery charge “to robbery second.” Davis relayed that counteroffer to
          the prosecutor, and the prosecutor accepted it.

       4. Davis communicated to Cook the offer of the 25-year cap and “robbery second”
          on one of the robbery charges.

       5. Cook accepted this offer. According to Davis, the offer Cook accepted was the
          best offer the State ever made in this case.




                                            5
         Cook testified at length on his own behalf. He admitted that with respect to the first

offer, it was his idea not to accept it, “lay it over for a while” and wait for a better offer

with the passage of time.

         In denying Cook’s claim, the motion court concluded that Cook “did not show his

attorneys failed to negotiate a better plea offer.” The court recognized that Cook “hoped

for a better offer [but] the lack of a better offer was not due to a failure of his attorneys. …

The State was simply not willing to accept any of [Cook’s] counteroffers.” The court went

on to find that counsel provided effective assistance, particularly with respect to Egan and

Davis:

         Egan obtained a significant benefit by negotiating a cap rather than a
         straight term of years. The cap allowed defense counsel to argue for any
         reasonable sentence less that twenty-five years. Egan also benefitted
         [Cook] by arranging a face-to-face meeting with [the prosecutor] where
         [Cook] advocated for long-term treatment in Hawaii, which [the prosecutor]
         rejected. Egan conveyed an offer of twenty years per count to the State,
         which was not accepted. Then, Davis was effective in getting the State to
         put the cap of twenty-five years back on the table after withdrawing it.
         Davis proposed ten years on each count which was refused by the State.
         Ultimately Davis got the State to reduce one robbery count to a class B
         felony rather than a class A felony. All of these actions demonstrate
         effective assistance of counsel.

         Cook’s point contends the motion court clearly erred in denying this claim because

he received ineffective assistance during plea negotiations. Cook relies on the standard of

conduct set forth in Frye, requiring defense counsel to communicate formal offers from the

prosecution to a defendant, but recognizes “this case presents the reverse situation[.]”

Specifically, Cook argues his three attorneys “collectively failed … to convey [Cook’s]

counteroffers to the prosecutor earlier in the case.” According to Cook, he “was prejudiced

because the prosecutor’s position hardened over time, and had [Cook’s] attorneys

conveyed his offers earlier there is a reasonable probability that the prosecutor would have

                                               6
agreed to a lesser sentence, and the plea court would have accepted the agreement.” We

find no merit in this argument.

       First, as a factual matter, Cook failed to prove that his attorneys did not convey his

counteroffers to the prosecution as he claimed. In the argument section of his brief, Cook

appears to concede his attorneys did in fact convey his counteroffers, but not “earlier in the

case” when “the prosecutor was more likely to negotiate[.]” Cook himself admitted,

however, that with respect to timing, it was his idea not to accept the first offer and wait

for a better offer. This testimony is consistent with Garrison’s testimony that Cook wanted

to sit on the case for a while to see if the offer would get any better. The motion court

obviously credited all three attorneys’ testimony that they not only conveyed Cook’s

counteroffers, but made reasonable efforts to negotiate the best offer possible. The court

was free to believe plea counsel’s testimony, and this Court defers to the motion court’s

determination of credibility. See Stacker, 357 S.W.3d at 303; Vanzandt, 212 S.W.3d at

231. Thus, Cook failed to prove deficient performance of his plea counsel.

       Second, Cook’s argument that this case presents a “reverse” Frye situation has

already been rejected by the eastern district of this Court in Arnold v. State, 509 S.W.3d

108 (Mo. App. 2016). There, Arnold claimed: (1) his “plea counsel were ineffective for

refusing to make offers of 10 and 15 years’ imprisonment in exchange for his guilty plea”;

and (2) “had plea counsel offered a sentence of 10 or 15 years, the State would have

considered accepting the offers.” Id. at 112. The Arnold court first determined that as a

factual matter, Arnold’s claim was refuted by the record. Id. at 113-14. The Court went

on, however, to determine that Frye was not applicable:

       We further note that even if Arnold’s allegations were not refuted by the
       record, neither Frye nor any other authority specifies that counsel is

                                              7
       constitutionally obligated to make 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 Supreme Court has addressed two specific and narrow instances of
       attorney error in the context of plea bargaining: (1) failing to
       communicate an existing offer to the defendant; and (2) providing bad
       advice about an existing offer. See Frye, 132 S.Ct. 1399, and Lafler v.
       Cooper, 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012),
       respectively, Arnold suggests that the Supreme Court’s holding
       in Frye extends to the facts of this case. We are not persuaded. The facts
       found in Frye 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.               Importantly, unlike
       in Frye, there is no allegation that plea counsel did not inform Arnold about
       an existing plea agreement offer.

Id. at 114 (emphasis in original). Given that the Supreme Court in Frye was careful to

limit the scope of its holding to defense counsel’s duty to communicate formal offers from

the prosecution, the Arnold court went on to conclude that the “holding in Frye does not

in any way extend to the facts of Arnold’s case.” Arnold, 509 S.W.3d at 115.

       We reach the same conclusion in this case. Cook makes no argument that any of

his attorneys failed to communicate a formal offer from the prosecution. As such, Frye

has no application here. See Arnold, 509 S.W.3d at 114-15. Accordingly, the motion court

did not clearly err in denying this particular claim. Point 1 is denied.

                                           Point 2

       Cook’s second point contends he was denied effective assistance of counsel

because his plea counsel, Egan, had “an actual conflict of interest” when he also

represented Cook’s first victim, B.C. The following facts are relevant to this point.

       The charges against Cook arose from allegations that Cook, armed with a knife,

robbed B.C. in a Walmart parking lot by stealing her car, then driving the stolen car to a

motel and robbing the night clerk, P.H.

                                              8
       Garrison represented Cook from October 2014 to May 2015, when she was

transferred to a different county. When Egan took over for Garrison in May 2015, he had

180 clients “dumped on” him all at once. Cook was one of the new clients. Soon thereafter,

Egan was assigned another new client, B.C. She was charged with distribution and

possession of a controlled substance. Egan first entered his appearance on her behalf in

December 2015. A warrant for B.C.’s arrest was issued the following January 2016. Egan

recalled Cook telling him during the early months of 2016 that Cook had heard B.C. had a

warrant, and Cook wanted to try to get the charges involving B.C. dropped or severed.

Egan explained to Cook, however, that while he might be able to get the charges concerning

B.C. dismissed, Cook still had a “solid case” against him for first-degree robbery and ACA

with P.H.

       Egan did not “make the connection” that he was representing both Cook and B.C.

until April 2016. At that time, he immediately filed motions to withdraw from representing

either Cook or B.C.

       Egan testified that he could not think of any adverse effect from his concurrent

representation. Even if at some point he would have approached the prosecutor and used

B.C.’s charges to negotiate a better deal for Cook, Egan was “not sure how much it

ultimately would have helped.” Egan explained that the “evidence against Mr. Cook with

regards to [P.H.] was pretty overwhelming.” Cook also had “serious” prior convictions –

“two prior robberies from his past.”

       The court granted Egan’s request to withdraw from Cook’s case in May 2016.

Cook’s new counsel, Davis, entered her appearance in July 2016. It was information about




                                            9
B.C. that enabled Davis to negotiate a better plea offer. Davis was able to persuade the

prosecutor to reduce the robbery charge related to B.C. to second-degree robbery.

       In denying Cook’s conflict-of-interest claim, the motion court found that Cook

“failed to show a conflict of interest adversely affected his case.” The court first recognized

that “Egan represented conflicting interests for a short period of time.”           The court

concluded, however, that: (1) Cook “did not introduce any evidence to show that his case

was adversely affected by Egan’s brief dual representation of himself and [B.C.]”; (2)

Cook’s case was “not adversely affected by Egan’s conflict of interest”; (3) “Davis, not

Egan, represented [Cook] during his guilty plea and sentencing, so there was no conflict of

interest” at that time; and (4) Davis “used information gained from [B.C.] to negotiate a

reduction in the robbery charge related to [her.]”

       Cook’s second point contends the motion court clearly erred in denying this claim

because, Egan had “an actual conflict of interest” while representing both Cook and B.C.

According to Cook, the concurrent representation “adversely affected” Egan’s

representation of Cook because Egan “failed to use [B.C.’s] legal troubles and

unavailability to [Cook’s] advantage in negotiations with the prosecutor.” We disagree.

       “[W]hen the movant seeks post-conviction relief following a plea of guilty, … the

movant must plead facts from which the motion court could find that counsel acted under

an actual – not merely potential – conflict of interest that adversely affected the adequacy

of counsel’s representation.” DePriest v. State, 510 S.W.3d 331, 341 (Mo. banc 2017).

“An attorney who represents both the defendant and a prosecution witness in the case

against the defendant is representing conflicting interests.” Ciarelli v. State, 441 S.W.2d

695, 697 (Mo. 1969); State v. McEntire, 551 S.W.3d 481, 485 (Mo. App. 2018); see also



                                              10
State ex rel. Horn v. Ray, 325 S.W.3d 500, 510 (Mo. App. 2010) (similar holding applied

to an attorney representing the defendant and victim in the case).

       Here, Egan had an actual conflict of interest because he represented defendant Cook

and victim B.C. at the same time. See Horn, 325 S.W.3d at 510. What Cook failed to

prove, however, was that the conflict of interest “adversely affected” Egan’s performance.

See DePriest, 510 S.W.3d at 341. Egan was unaware of the conflict, represented both

parties for only a short period of time, and immediately withdrew as counsel in both cases

once he “made the connection” that he was representing Cook and B.C. Before Egan made

that connection, he had told Cook that he still had a “solid case” against him for first-degree

robbery and ACA concerning P.H., even if Egan might be able to get charges concerning

B.C. dismissed. Egan testified that he was “not sure how much it ultimately would have

helped” if he had negotiated a better deal for Cook in his case with B.C. Charged as a prior

and persistent offender with two robberies in his past, Cook was still facing

“overwhelming” evidence against him in his case with P.H. Egan’s concerns about the

strength of the State’s case were well founded. New counsel Davis was only able to use

B.C.’s information to reduce the charge to second-degree robbery in B.C.’s case, rather

than a dismissal of the two charges relating to that incident. As the motion court found,

while Cook “hoped” for a better offer, “the lack of a better offer was not due to a failure of

his attorneys.” Moreover, it was Davis – not Egan – who was representing Cook when he

ultimately accepted the plea offer, at which point there was no conflict of interest. The

offer Cook accepted was the best offer the State made in his case. Given these facts, the

motion court did not clearly err in concluding that Cook’s case was not adversely affected

by Egan’s conflict of interest. Point 2 is denied.



                                              11
       The motion court’s findings of fact and conclusions of law are not clearly

erroneous. Booker, 552 S.W.3d at 526; Rule 24.035(k). The order denying Cook’s

amended Rule 24.035 motion is affirmed.



JEFFREY W. BATES, C.J. – OPINION AUTHOR

DANIEL E. SCOTT, P.J. – CONCUR

DON E. BURRELL, J. – CONCUR




                                          12
