JEREMY W. ARATA,                            )
                                            )
              Movant-Appellant,             )
v.                                          )       No. SD34317
                                            )       Filed: January 31, 2017
STATE OF MISSOURI,                          )
                                            )
              Respondent-Respondent.        )

           APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                         Honorable Calvin Holden, Circuit Judge

AFFIRMED

       Jeremy Arata (Arata) appeals from the motion court’s denial, following an

evidentiary hearing, of Arata’s Rule 29.15 motion for post-conviction relief.1      In the

underlying criminal case, Arata was convicted by a jury of first-degree involuntary

manslaughter and sentenced to 12 years’ imprisonment. See § 565.024.2 Because Arata was

intoxicated when he hit and killed another motorist, he is required to serve 85% of his



       1
         All rule references are to Missouri Court Rules (2016). All statutory references
are to RSMo Cum. Supp. (2006). This Court has independently verified that Arata’s pro se
motion and appointed counsel’s amended motion were timely filed. See Moore v. State, 458
S.W.3d 822, 825 (Mo. banc 2015); Dorris v. State, 360 S.W.3d 260, 268 (Mo. banc 2012).
       2
          Arata’s conviction was affirmed on direct appeal in an unpublished opinion. State
v. Arata, No. SD31532 (Mo. App. April 11, 2013) (per curiam).
sentence before becoming eligible for parole (the 85% rule).          See § 565.024.1(3)(a);

§ 565.024.2. On appeal, Arata contends his defense counsel was ineffective in failing to

inform Arata, prior to declining a seven-year plea offer from the State, that Arata would be

subject to the 85% rule. Arata argues that he was prejudiced because “if [he] had been

informed that he would have to serve 85% of any sentence imposed for involuntary

manslaughter in the first degree, [he] would not have taken his case to trial, but would have

accepted the [S]tate’s seven-year plea offer.” Finding no merit in this contention, we affirm.

        Our review of the motion court’s findings of fact and conclusions of law is for clear

error. Rule 29.15(k). This Court presumes that the motion court’s findings and conclusions

are correct, and we may reverse only when left with a definite and firm impression that the

motion court has made a mistake. Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009).

“On a claim of ineffective assistance of counsel, the motion court is free to believe or

disbelieve any evidence, whether contradicted or undisputed.” Savick v. State, 461 S.W.3d

63, 66 (Mo. App. 2015). We defer to the motion court’s credibility determinations. Id.

        As in all claims of ineffective assistance of counsel, the test to determine whether

counsel was ineffective throughout plea negotiations is the two-prong test stated in

Strickland v. Washington, 466 U.S. 668, 687-94 (1984). Lafler v. Cooper, 132 S.Ct. 1376,

1384-85 (2012); Missouri v. Frye, 132 S.Ct. 1399, 1409-10 (2012); Savick, 461 S.W.3d at

66. Thus, a movant must overcome the strong presumption that counsel was competent and

demonstrate instead that: (1) counsel failed to exercise the customary skill and diligence

that a reasonably competent attorney would exercise; and (2) that such failure prejudiced the

movant. Strickland, 466 U.S. at 687-94. Where the movant claims that counsel’s deficient

performance led him to reject a plea offer and proceed to trial, Strickland prejudice exists

when:

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       but for the ineffective advice of counsel there is a reasonable probability that
       the plea offer would have been presented to the court (i.e., that the defendant
       would have accepted the plea and the prosecution would not have withdrawn
       it in light of intervening circumstances), that the court would have accepted
       its terms, and that the conviction or sentence, or both, under the offer’s terms
       would have been less severe than under the judgment and sentence that in
       fact were imposed.

Lafler, 132 S.Ct. at 1385. “Both of these prongs must be shown by a preponderance of the

evidence in order to prove ineffective assistance of counsel.” Zink, 278 S.W.3d at 175.

       In this case, Arata failed to meet his burden of proving defense counsel failed to

inform Arata that he would have to serve 85% of any sentence imposed before becoming

eligible for parole. Arata and defense counsel provided the only testimony at the evidentiary

hearing on Arata’s amended post-conviction motion. Arata testified that: (1) he was not

informed by defense counsel of the 85% rule’s applicability to his case; and (2) if he had

known that he would have to serve 85% of any sentence imposed before becoming eligible

for parole, he would have taken the State’s offer of seven years instead of proceeding to trial.

Defense counsel testified that he could not specifically remember telling Arata the 85% rule

applied to his case. Defense counsel did, however, provide the following additional relevant

testimony: (1) it was defense counsel’s practice and procedure to inform his clients if there

was a minimum parole requirement associated with any charges they faced; (2) defense

counsel reviewed § 565.024 when advising Arata whether to accept the plea; (3) defense

counsel was certain that he had seen the 85% rule when advising Arata whether to accept

the offer because it was included in § 565.024 at the time; and (4) defense counsel would be

surprised if he had not told Arata that the 85% rule applied in his case.

       The motion court considered Arata and defense counsel’s testimony, weighed their

credibility and determined that Arata had not proven by a preponderance of the evidence that

defense counsel failed to inform him that he would have to serve 85% of any sentence

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imposed before becoming eligible for parole.          Although Arata in his own testimony

professed ignorance of the 85% rule, the motion court did not find that evidence credible.

Defense counsel’s contrary testimony about his practice and procedure, on the other hand,

was found credible by the motion court. The decision of which testimony to credit under

these circumstances was a matter for the motion court to resolve, and we defer to its

determination. Savick, 461 S.W.3d at 66. Because Arata’s testimony was not believed, he

failed to prove his claim that defense counsel did not advise him of the 85% rule’s

applicability to his case.     Without such proof, Arata failed to overcome the strong

presumption that defense counsel rendered effective assistance.

       Arata’s claim also fails because defense counsel had no duty to inform Arata that he

was subject to the 85% rule. In other words, even if true, the facts alleged by Arata do not

warrant post-conviction relief as a matter of law. Arata cites Frye, Lafler and Padilla v.

Kentucky, 559 U.S. 356 (2010), for the principle that criminal defendants are entitled to

receive effective assistance of counsel when deciding whether to accept a plea offer extended

by the State. That a constitutional right to effective assistance of counsel in plea negotiations

exists, however, does little to define the scope of that right, and the Supreme Court has

declined to outline the specific obligations of defense counsel during plea negotiations. See

Frye, 132 S.Ct. at 1408; see also Arnold v. State, No. ED102943, 2016 WL 1642966, at *5-

6 (Mo. App. April 26, 2016) (noting Frye is limited to cases where counsel failed to

communicate an existing plea offer to the defendant and Lafler is limited to cases where

counsel provided bad advice on whether to accept an existing offer). As for the resolution

of this appeal, it is sufficient to simply reiterate that multiple Missouri cases, post Frye,

Lafler and Padilla, have considered the scope of a defense counsel’s obligation to inform a

defendant of parole eligibility, which is a collateral consequence of the guilty plea. These

                                               4
cases have concluded that defense counsel may be ineffective for affirmatively misadvising

a defendant about his or her parole eligibility for a particular sentence, but counsel cannot

be ineffective for merely failing to inform a defendant of such consequences. Compare

Davis v. State, 497 S.W.3d 307, 307-08 (Mo. App. 2016) (vacating and remanding for an

evidentiary hearing where the movant rejected a plea offer and proceeded to trial after his

counsel allegedly misadvised him that he would have to serve 85% of his sentence before

becoming eligible for parole), with Voegtlin v. State, 464 S.W.3d 544, 554-55 (Mo. App.

2015) (holding counsel had no duty to inform a defendant that he would have to serve a

minimum of 40% of his sentence before becoming eligible for parole because parole

eligibility is only a collateral consequence of a guilty plea); Simmons v. State, 432 S.W.3d

306, 308-09 (Mo. App. 2014) (applying the same rule to a claim that counsel was ineffective

for failing to inform a defendant he would have to serve 85% of his sentence before

becoming eligible for parole); Johnson v. State, 398 S.W.3d 513, 516-17 (Mo. App. 2013)

(same holding); Smith v. State, 353 S.W.3d 1, 3-5 (Mo. App. 2011) (same holding). Thus,

consistent with long-standing Missouri law, defense counsel cannot be found ineffective for

the mere failure to advise Arata that he was subject to the 85% rule because parole eligibility

remains a collateral consequence about which defense counsel had no duty to inform Arata.

       Ultimately, Arata acknowledges this important principle in his brief. In an apparent

attempt to present a cognizable claim, however, post-conviction appellate counsel argues

that defense counsel underestimated the strength of the State’s case when advising Arata

whether to accept the State’s plea offer. Because this claim was not included in Arata’s

amended motion, it is waived and is not subject to plain error review. McLaughlin v. State,

378 S.W.3d 328, 340 (Mo. banc 2012). The fact that Arata presented some evidence of the



                                              5
claim at his evidentiary hearing does nothing to change this result. Id.; Day v. State, 495

S.W.3d 773, 776 (Mo. App. 2016).

       In sum, this Court is not left with a definite and firm impression that the motion court

made a mistake. Zink, 278 S.W.3d at 175. The motion court’s findings and conclusions are

not clearly erroneous. Rule 29.15(k). Arata’s point is denied, and the motion court’s order

denying relief is affirmed.



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

DON E. BURRELL, J. – CONCUR

MARY W. SHEFFIELD, C.J. – CONCUR




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