            In the Missouri Court of Appeals
                    Eastern District
                                        DIVISION FOUR

AMBER R. MILLER,                                   )         ED103323
                                                   )
       Appellant,                                  )         Appeal from the Circuit Court of
                                                   )         St. Francois County
v.                                                 )         15SF-CC00024
                                                   )
STATE OF MISSOURI,                                 )         Honorable Wendy Wexler-Horn
                                                   )
       Respondent.                                 )         Filed: May 3, 2016

       Amber Miller ("Movant") appeals from the denial, without an evidentiary hearing, of her

Rule 24.035 motion for post-conviction relief. We reverse and remand with instructions.

                                         I. BACKGROUND

       Before this court delves into the facts of this appeal, we note the transcript provided to

this court has been redacted so as to encompass only certain segments of the plea hearing. This

redaction runs afoul of Rule 81.15(b). See Rule 81.15(b) ("If the trial proceedings are recorded

by a court reporter present at the time of such proceedings, the transcript thereof shall be

certified by the court reporter as a true and accurate reproduction of the proceedings transcribed.

. . . ") (emphasis added). Without assigning blame for this redaction, such a blatant violation of

Rule 81.15(b) is improper and fails to give this court a complete picture of what transpired at the

plea hearing; it hinders this court's appellate review especially in a situation as this where the

procedure itself is at issue. This court should never be provided redacted transcripts.
        On or about November 04, 2013, Movant appeared before the plea court in Saint Francois

County and contemporaneously pled guilty to a number of criminal charges associated with two

different criminal matters: cause numbers 13SF-CR01543-01 and 13SG-CR00276-01.

        First, in cause number 13SF-CR01543-01 ("St. Francois County Matter")—which forms

the bases of this appeal—Movant was charged with and pled guilty to one count of burglary in

the second degree and one count of stealing property of another in excess of $500 for crimes that

occurred in the County of Saint Francois. In conjunction with this cause number, Movant was

present at the plea hearing, represented by a public defender ("St. Francois Public Defender"),

and prosecuted by the Office of the St. Francois County Prosecutor.

        Second, in cause number 13SG-CR00276-01 ("Ste. Genevieve County Matter"), Movant

was apparently—based upon a redacted transcript submitted to this court—charged with and pled

guilty to one count of burglary in the second degree for a crime that occurred in the County of

Saint Genevieve.1 It is undisputed that in conjunction with this cause number, Movant was

present, represented by a different public defender ("Ste. Genevieve Public Defender"), and

prosecuted by the Office of the Ste. Genevieve County Prosecutor.

        Movant's guilty pleas regarding these two different cause numbers, from two different

counties, involving four different attorneys, were procured simultaneously by the plea court. As

if this wholesale approach lacked any possibility of constitutional deficiencies, the plea court, in

an effort to save time, also found it prudent to incorporate the pleas of six unrelated defendants

within the same proceeding—seven different defendants and eight different cause numbers was

the final tally. Due to the redacted transcript, we are unable to determine in which county the

other defendants' crimes arose or whether the other defendants were represented by counsel.


1
 Both St. Francois County and Ste. Genevieve County fall within the boundaries of this State's Twenty-Fourth
Judicial Circuit.

                                                     2
       Prior to each defendant entering his or her plea, the plea court extended the following

monologue:

       I want to explain this procedure to you just a little bit further.
       The reason that I'm taking your pleas of guilty up in a group like this is to save a
       great deal of time for the Court, counsel, and you all.

       In every case before I can accept a plea of guilty, I need to advise the defendant of
       their legal rights and ask a number of questions. So I'm going to be addressing
       my questions and comments to you as a group.
       In order to keep the record straight, I will always start first with you, [Movant] for
       your response then move straight on down the line in order.

       There will, of course, be times when I will need to talk to you in more detail about
       your particular case, but I will make it very clear to you at that time when I am
       doing so.

       ***
       This is an important thing for you, folks, so I want you to pay attention, please,
       close attention to the questions that I ask and the rights that I advise you of. And I
       want to emphasize, just because you're in line, a group like this does not mean
       that if someone prior to you answers a questions one way, you should feel
       compelled in any way to give the same answer.

       ***
       If the truth of a situation in your case is different than what somebody else says,
       that's what you should tell me.

       Everybody understand what I'm trying to say? I want you to tell me the truth as it
       relates to you in your particular case.

       As I have outlined the procedure, counsel, do you have any objection to the Court
       taking up your client's pleas of guilty in this manner?

Neither of Movant's attorneys lodged an objection to this "group plea" procedure.

       Subsequently, from what this court is able to glean from the redacted transcript, the State

attempted to secure Movant's pleas of guilty to both counts of the St. Francois County Matter

through a series of questions regarding the factual and evidential bases; additionally, the plea

court, independently, pursued its own line of questioning. Upon the State's recommendation, the

plea court suspended imposition of sentence in regards to the St. Francois County Matter,

                                                 3
ordered Movant to submit to the St. Francois County Drug Court Program, and ordered Movant

to pay certain financial restitution.

        At some time thereafter, Movant was dismissed from the Drug Court Program. In

executing formal sentencing, the plea court heeded the State's recommendation and sentenced

Movant to a term of imprisonment totaling fourteen years; seven years' imprisonment for each

count, with the sentences running consecutively.

        Movant proceeded to timely file her pro se Rule 24.035 motion for post-conviction relief,

and an amended motion was subsequently filed.           Notably, between the time of Movant's

sentencing and time of the judgment upon Movant's Rule 24.035 motion, the plea hearing judge

retired; accordingly, a different judge was called upon to dispose of Movant's Rule 24.035

motion. Despite the arrival of a new judge that did not conduct the plea hearing, the motion

court denied Movant's Rule 24.035 motion for post-conviction relief without an evidentiary

hearing.

        This appeal now follows.

                                         II. DISCUSSION

        In his sole point relied on, Movant argues the motion court clearly erred in denying her

Rule 24.035 motion for post-conviction relief because her plea counsel ("Plea Counsel") was

ineffective for failing to object to the plea court's "group plea" procedure, in violation of the

Fifth, Sixth and Fourteenth Amendments of the United States Constitution and Article I, Sections

10 and 18(a) of the Missouri Constitution.         Specifically, Movant contends a "group plea"

scenario is confusing and coercive, thereby causing Movant's guilty plea to be discredited.

                                        Standard of Review




                                                4
       Appellate review of the motion court's denial of a Rule 24.035 motion is limited to a

determination of whether the findings and conclusions of the motion court are clearly erroneous.

Pettry v. State, 345 S.W.3d 335, 337 (Mo. App. E.D. 2011); see also Rule 24.035(k). The

motion court's findings and conclusions will be deemed clearly erroneous only if a review of the

entire record leaves this court with a "definite and firm impression that a mistake has been

made." Redmond v. State, 354 S.W.3d 661, 662 (Mo. App. E.D. 2011) (citations omitted).

Movant bears the burden of establishing his grounds for relief by a preponderance of the

evidence. See Rule 24.035(i); see also Barnes v. State, 385 S.W.3d 517, 522 (Mo. App. S.D.

2012). This burden is a heavy one as the motion court is free to believe or disbelieve any

evidence, whether contradicted or undisputed, including the movant's testimony. Barnes, 385

S.W.3d at 522.

       After a guilty plea, any claim of ineffective assistance of counsel is considered only as to

the extent that the alleged ineffectiveness affects the "voluntariness" with which the guilty plea

was entered. Ducept v. State, 772 S.W.2d 7, 8 (Mo. App. E.D. 1989); Boyd v. State, 205 S.W.3d

334, 338 (Mo. App. S.D. 2006) ("Where, as here, there is a negotiated plea of guilty, a claim of

ineffective assistance of counsel is immaterial except to the extent it impinges upon the

voluntariness and knowledge with which the guilty plea was made.") (internal citation and

quotation marks omitted).

       Furthermore, no hearing is required if the record of the case "conclusively shows that the

movant is entitled to no relief." Martin v. State, 187 S.W.3d 335, 339 (Mo. App. E.D. 2006).

Rather, a movant is only entitled to an evidentiary hearing if: (1) the movant pled facts, not

conclusions, warranting relief; (2) the facts alleged are not refuted by the record; and (3) the




                                                5
matters complained of resulted in prejudice to the movant. Jackson v. State, 366 S.W.3d 656,

659 (Mo. App. E.D. 2012).

                                                       Analysis

           In what appears to be at least the tenth time in the past decade, this court is again

confronted with a post-conviction appeal, premised upon the same trial court judge's ritual of

conducting "group pleas." See, generally, Briley v. State, 464 S.W.3d 537 (Mo. App. E.D.

2015); Snow v. State, 461 S.W.3d 25 (Mo. App. E.D. 2015); Wright v. State, 411 S.W.3d 381

(Mo. App. E.D. 2013); Roberts v. State, 2008 WL 222503 (Mo. App. E.D. Jan. 29, 2008)

(overruled by Roberts v. State, 276 S.W.3d 833 (Mo. banc 2009)); Castor v. State, 245 S.W.3d

909 (Mo. App. E.D. 2008); Elverum v. State, 232 S.W.3d 710 (Mo. App. E.D. 2007); Adams v.

State, 210 S.W.3d 387 (Mo. App. E.D. 2006); Guynes v. State, 191 S.W.3d 80 (Mo. App. E.D.

2006).2 This court's recurring warnings and admonitions regarding the practice of "group pleas"

has repeatedly fallen on deaf ears in regards to this particular judge. Snow, 461 S.W.3d at 30 n.3

("This Court again cautioned that trial courts should heed the admonition of our Supreme Court

that group guilty pleas are not preferred practice and should be used sparingly in a case involving

the same court that took this group plea. This recurring admonition continues to be ignored by

the plea court, which contributes to the result we reach on this motion for post-conviction

relief."); Wright, 411 S.W.3d at 388 ("Defense lawyers agreeing to such a procedure may well be

presumptively ineffective.") (Richter, J., concurring); Castor, 245 S.W.3d at 915 n.8 ("We

reiterate that this procedure is not preferred and should be discontinued."); Elverum, 232 S.W.3d

at 712 n.4; Guynes, 191 S.W.3d at 83 n.2 ("This procedure is far from ideal and should be

discontinued.").        Moreover, considering this Court's frequent assaults on group pleas, the



2
    This also includes DePriest v. State, SC95483 (transferred to the Supreme Court after opinion).

                                                            6
attorneys practicing in this courtroom either have tuned us out or they fear retribution from the

trial judge for raising objections to this procedure.

       We recognize and do not dispute that the Supreme Court of Missouri has "rejected the

argument that group pleas should be deemed automatically invalid or declared impermissible."

Wright, 411 S.W.3d at 387 (citing Roberts, 276 S.W.3d at 836 n.5). However, we find the

practice so abhorrent and antithetical to the ideas of justice, due process, and fairness that the

mere use of such a practice impinges upon the voluntariness of a defendant's plea. See Rule

24.02(b) (". . . before accepting a plea of guilty, the court must address the defendant personally

in open court . . . ") (emphasis added). As such, a review of the record presented on appeal fails

to "conclusively show that the movant is entitled to no relief[,]" therein necessitating the need for

an evidentiary hearing. Rule 24.035(h). In fact, in circumstances such as the instant matter,

wherein the motion court judge differs from the plea court judge, an evidentiary hearing is

evermore indispensable.

       Based upon this court's frequent and thunderous critiques regarding "group pleas," the

impression emerges that plea counsel may have been ineffective for failing to object to such a

procedure. Risalvato v. State, 856 S.W.2d 370, 373-74 (Mo. App. W.D. 1993) (a movant "may

attack only the voluntary and intelligent character of the plea by showing that the advice counsel

provided him was not within the reasonable prevailing norms, standards, diligence and skills

that a reasonably competent attorney would provide under similar circumstances") (emphasis

added). Therefore, we hold that a plea counsel's failure to object to a "group plea" procedure is

sufficient, in and of itself, to warrant an evidentiary hearing under a Rule 24.035 post-conviction

relief motion, as the practice of "group pleas" inescapably impacts the voluntariness of a

defendant's plea. Whether plea counsel was indeed ineffective for failing to object and whether



                                                  7
that potential ineffectiveness prejudiced Movant is left for the motion court's determination after

an evidentiary hearing. Cooper v. State, 356 S.W.3d 148, 153 (Mo. banc 2011) ("[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. 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.") (internal citations and quotation

marks omitted).

       The quest for judicial economy, while laudable, is no excuse for en masse pleas from

multiple defendants if such a system precipitates anxieties and reservations regarding the

voluntariness of those pleas. Accordingly, Movant's 24.035 motion has alleged facts that would,

if proven, establish that her guilty plea was not freely, voluntarily, and intelligently entered due

to plea counsel's ineffective assistance of counsel. Movant is entitled to an evidentiary hearing

and, on remand, the trial court is instructed to review, inter alia, the entire plea proceeding

transcript—not the redacted version submitted on appeal—in determining whether the relief

requested shall be granted.

                                          III. CONCLUSION

   We reverse the motion court's findings, and the cause is remanded to the motion court to

conduct an evidentiary hearing upon Movant's Rule 24.035 motion, with instructions to review

the entire plea proceeding transcript, inter alia.




                                                         ____________________________________
                                                         Lisa P. Page, Judge

Sherri B. Sullivan, P.J. and
Kurt S. Odenwald, J., concur.
                                                     8
