                          In the Missouri Court of Appeals
                                  Eastern District
                                                 DIVISION THREE

ELON PERRY,                                             ) No. ED106857
                                                        )
           Movant/Appellant,                            ) Appeal from the Circuit Court
                                                        ) of St. Louis County
vs.                                                     )
                                                        )
STATE OF MISSOURI,                                      ) Honorable John D. Warner, Jr.
                                                        )
           Respondent/Respondent.                       ) Filed: August 20, 2019

                                                     Introduction

           Elon Perry (Appellant) appeals from the motion court’s judgment denying his Rule

24.0351 Amended Motion to Vacate, Set Aside, or Correct Judgment and Sentence (amended

motion) and request for an evidentiary hearing. We affirm in part and reverse in part.

                                               Facts and Background

           On June 12, 2017, Appellant pleaded guilty to burglary in the first degree, a class B

felony; violation of an order of protection, a class A misdemeanor; and harassment, a class A

misdemeanor. In exchange for his plea, the State agreed to dismiss a charge of rape in the

second degree and a charge of sodomy in the second degree. The State also agreed not to seek

enhanced sentencing for Appellant as a persistent offender.

           Before accepting Appellant’s plea, the trial court questioned Appellant about the

voluntariness of his plea. Appellant stated he had no health or hearing problems and was not


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    All rule references are to Mo. R. Crim. P. 2018, unless otherwise noted.
under the influence of drugs or alcohol. Appellant claimed he had enough time to speak with his

plea counsel before deciding to plead guilty, no promises other than the plea agreement were

made, plea counsel had done all Appellant had asked him to do, and he was satisfied with plea

counsel’s performance. Appellant admitted to the factual basis of the plea: he committed

burglary, harassment, and violation of an order of protection when he entered and remained

unlawfully in the victim’s (Victim) bedroom in the middle of the night for the purpose of scaring

her. The trial court accepted Appellant’s plea and sentenced him to twelve years’ imprisonment

for first-degree burglary, one year for violation of the order of protection, and one year for

harassment, with all sentences to run concurrently.

       After he was delivered to the Missouri Department of Corrections, Appellant timely filed

a pro se motion for post-conviction relief. The motion court appointed counsel for Appellant and

counsel timely filed Appellant’s amended motion.

       The amended motion included two claims. In the first claim, Appellant asserted plea

counsel was ineffective because he represented Appellant without revealing a conflict of interest.

According to Appellant, after pleading guilty he learned plea counsel sat on the Ferguson City

Council, and was friends with a police officer who investigated Appellant’s case. The second

claim alleged plea counsel was ineffective based on his failure to obtain records and reports of

Victim’s alleged elder abuse and fraud – misdeeds for which Appellant had reported Victim,

giving her a motive to falsely accuse Appellant of the instant crimes.

       The motion court denied Appellant’s amended motion without an evidentiary hearing.

This appeal follows.

                                         Points Relied On

       Appellant brings two points on appeal. Point I claims the trial court erred in denying his

amended motion because the motion alleged facts not refuted by the record showing his plea

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counsel had an undisclosed conflict of interest while representing Appellant. Point II claims

error because his amended motion alleged facts showing plea counsel was ineffective for failing

to obtain documentation of Victim’s alleged wrongdoing before advising Appellant to plead

guilty.

                                          Standard of Review

          This Court’s review of the motion court’s ruling on a motion filed under Rule 24.035 is

“limited to a determination of whether the findings and conclusions of law … are clearly

erroneous.” Rule 24.035(k). The trial court’s ruling is clearly erroneous when this Court is left

with a “definite and firm impression that a mistake has been made.” Worthington v. State, 166

S.W.3d 566, 572 (Mo. banc 2005).

          “In order to obtain an evidentiary hearing on a claim of ineffective assistance of counsel

under Rule 24.035, (1) a movant must raise facts, not conclusions, warranting relief; (2) the facts

alleged must raise matters not refuted by the record; and (3) the matters complained of must have

resulted in prejudice to the movant.” Wiggins v. State, 480 S.W.3d 379, 382 (Mo. App. E.D.

2015). “To justify the denial of an evidentiary hearing, the record must be specific enough to

conclusively refute the movant’s allegation.” Id.

                                               Discussion

                                                 Point I

          Appellant first claims the motion court erred in denying his amended motion without an

evidentiary hearing because he pleaded facts unrefuted by the record showing his attorney was

ineffective for failing to disclose a conflict of interest while representing Appellant and advising

him to plead guilty.

          In the context of a guilty plea, ineffective assistance of counsel is immaterial except to

the extent it affects the voluntariness and knowledge with which the plea was made. Cupp v.

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State, 935 S.W.2d 367, 368 (Mo. App. S.D. 1996). “To prevail on a claim of ineffective

assistance of counsel where a movant has entered a plea of guilty, a ‘movant must show his

counsel’s representation fell below an objective standard of reasonableness and that, as a result,

he was prejudiced.’” Boyd v. State, 205 S.W.3d 334, 338 (Mo. App. S.D. 2006), quoting Cupp,

935 S.W.2d at 368. Movant must show that, but for counsel’s unprofessional error, he would not

have pleaded guilty but insisted on proceeding to trial. Cupp, 935 S.W.2d at 368.

         When basing a claim of ineffective assistance of counsel on a conflict of interest, a

movant must do more than allege a potential conflict of interest. Helmig v. State, 42 S.W.3d

658, 680 (Mo. App. E.D. 2001). The movant must show “that an actual conflict of interest

affected his lawyer’s performance.” State v. Chandler, 698 S.W.2d 844, 848 (Mo. banc 1985),

citing Cuyler v. Sullivan, 446 U.S. 335, 348, 100 S.Ct. 1708, 1716 (1980). This means the

conflict of interest must have resulted in counsel doing something, or foregoing something, that

was detrimental to the interests of the movant and potentially advantageous to another. Helmig,

42 S.W.3d at 680, citing Alexander v. State, 864 S.W.2d 354, 359 (Mo. App. W.D. 1993). Once

a movant establishes an actual conflict of interest and how it adversely affected counsel’s

performance, prejudice is presumed. DePriest v. State, 510 S.W.3d 331, 339 (Mo. banc 2017).

Representation by conflicted counsel impinges on the Sixth Amendment right to assistance of

counsel in a criminal case. State ex rel. Horn v. Ray, 325 S.W.3d 500, 510 (Mo. App. E.D.

2010).

         Appellant’s amended motion stated:

         [T]here was a significant risk that the representation of [Appellant] would be
         materially limited by [plea counsel]’s responsibilities as a Ferguson City Council
         member and personal interest as a friend of the investigating officer. His
         Ferguson City Council profile states that one of his focuses was “working with
         our new police chief to ensure strong and safe neighborhoods in Ferguson.” In
         addition, during the time [plea counsel] represented Perry and was sitting on the
         City Council, the Department of Justice sued Ferguson over police practices.

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       Going to trial would have involved cross-examining a friend and Ferguson police
       officer and calling into question the work performed by the Ferguson Police
       Department, which is funded and overseen by the City Council, all at a time when
       the national spotlight was on Ferguson and the City Council evinced a history of
       complacency around unconstitutional police practices and some resistance to
       police reform. [Plea counsel] never sought a waiver of the conflict from
       [Appellant]. Moreover, the conflict adversely affected his performance in that he
       convinced Perry to plead guilty when Perry consistently maintained his innocence
       and wanted to go to trial.

Rule 4-1.7 governs conflicts of interest. It states in relevant part:

       (a) Except as provided in Rule 4-1.7(b), a lawyer shall not represent a client if the
       representation involves a concurrent conflict of interest. A concurrent conflict of
       interest exists if:

       (1) the representation of one client will be directly adverse to another client; or

       (2) there is a significant risk that the representation of one or more clients will be
       materially limited by the lawyer's responsibilities to another client, a former
       client, or a third person or by a personal interest of the lawyer.

       Taken as true, the facts alleged in Appellant’s amended motion are sufficient to give rise

to a conflict of interest. Appellant alleges plea counsel had an undisclosed conflict of interest

between Appellant and (1) plea counsel’s position on the Ferguson City Council, which funds

and oversees the Ferguson Police Department—the department that investigated Appellant in the

instant case, and (2) plea counsel’s personal friendship with one of the police officers who

investigated Appellant and would likely have testified at Appellant’s trial. The amended motion

alleges this conflict of interest adversely affected plea counsel’s performance in that he

convinced Appellant to plead guilty, despite Appellant’s insistence on taking the case to trial, to

avoid criticizing the police department he was in some way responsible for overseeing and to

avoid having to cross-examine a personal friend at trial. Appellant also suggests plea counsel’s

interest in avoiding criticizing the Ferguson Police Department, and by extension the City

Council’s oversight of it, was amplified by the intense national scrutiny at the time. Appellant

does not allege how plea counsel’s deficient performance prejudiced him, but if the facts pleaded

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are true, prejudice would be presumed, obviating the need for Appellant to allege or prove what

prejudice actually resulted. DePriest, 510 S.W.3d at 339.

       In reviewing the record, we are unable to locate anything that conclusively refutes the

facts alleged in Appellant’s amended motion. Appellant’s assurances to the trial court that he

was satisfied with plea counsel’s performance are insufficient to refute the facts alleged in

Appellant’s amended motion, because Appellant claims he was unaware of the conflict of

interest at the time he made the assurances. See State v. Driver, 912 S.W.2d 52, 55-56 (Mo.

banc 1995).

       To be clear, we do not hold as a matter of law a position on the Ferguson City Council or

a personal friendship with a police officer must per se disqualify plea counsel from representing

Appellant. Whether the extent and nature of his duties on the Ferguson City Council, and his

relationship with the investigating officer, gave rise to a significant risk his representation of

Appellant was materially limited is necessarily a fact-sensitive inquiry. Here, the record is

insufficient to conclusively refute Appellant’s factual allegations, necessitating an evidentiary

hearing. Appellant’s Point I is granted.

                                               Point II

       In Appellant’s second claim, he asserts he was denied effective assistance of plea counsel

because plea counsel failed to collect documentary evidence of Victim’s alleged elder abuse and

fraud for which Appellant reported Victim. Appellant claims this evidence would have been

critical at trial to show Victim had a motive to fabricate her allegations against Appellant.

Appellant’s amended motion alleged plea counsel not only failed to obtain the documents, but

misled Appellant into believing he had obtained them. Appellant claims he relied on plea

counsel’s false claim he had obtained the documents when he chose to plead guilty, rendering his

plea unknowing and involuntary.

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       The facts alleged in Appellant’s amended motion are not sufficient to show ineffective

assistance of plea counsel. As stated above, ineffective assistance of counsel in the context of a

guilty plea is irrelevant except to the extent it affected the voluntariness and knowledge with

which the plea is made. Cupp, 935 S.W.2d at 368. Taken as true, the facts alleged do not

establish plea counsel’s failure to obtain the documents affected the voluntariness or knowledge

of Appellant’s plea. Appellant claims he pleaded guilty believing plea counsel had obtained the

documents when he had not. Appellant fails to explain how his decision would have been

different had plea counsel actually obtained the documents. Point II is denied.

                                            Conclusion

       The judgment of the motion court is reversed in part and affirmed in part. We reverse the

motion court’s denial of the amended motion without an evidentiary hearing. The cause is

remanded with instruction to hold an evidentiary hearing to determine whether plea counsel’s

position on the Ferguson City Council and his friendship with an investigating police officer

adversely affected his performance such that it impinged on Appellant’s Sixth Amendment right

to conflict-free counsel. The motion court’s denial of all other claims in the amended motion is

affirmed.



                                                     SHERRI B. SULLIVAN, J.

Mary K. Hoff, P.J., and
Angela T. Quigless, J., concur.




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