Link to Mo. Sup. Ct. Opinion
The Supreme Court of Missouri in Webb v. State adopted a longstanding lower court rule granting evidentiary hearings to defendants claiming ineffective assistance of counsel after having pled guilty allegedly due to misinformation regarding parole eligibility. However, the recent decision by the U.S. Supreme Court in Padilla v. Kentucky may have far greater implications for defense counsels’ traditional duty to inform clients of plea consequences.
I. Facts and Holding
The case centered on Eric Webb, who initially pleaded guilty to charges of first-degree involuntary manslaughter and armed criminal action stemming from an automobile accident.[2] Webb was first indicted as a persistent offender [3] on charges of first-degree involuntary manslaughter, armed criminal action, and failure to drive on the right side of the roadway after a Jeep he was said to be driving, allegedly under the influence of alcohol, collided with a truck.[4] The collision killed truck-occupant Terry Parker.[5]
At Webb’s 2008 hearing, the state, in exchange for Webb’s guilty pleas, dropped the failure to drive on the right side of the road charge. The prosecution recommended two ten-year sentences to run concurrently, but the court ultimately rejected that recommendation and sentenced Webb to twelve years of imprisonment.[6] Before sentencing, the court asked Webb a series of standard questions about the process, to which he responded that: “(1) no one had threatened him or promised him anything to get him to plead guilty; (2) he understood he was waiving all of his rights at trial; and (3) he understood the range of punishment available for both counts.” [7] He also said that “his attorneys had not made him plead guilty against his free will, that his attorneys could not have done anything differently in handling his case, and that he was satisfied with their legal services.”[8]
Despite finding Webb’s pleas “voluntary, knowing and intelligent,” the Court deferred his plea acceptance until the court-ordered sentencing assessment report (SAR) was available.[9] Webb was sentenced in July 2008 after his attorney reviewed and discussed the SAR with him.[10]
Webb appealed his sentence via a Supreme Court of Missouri Rule 24.035 motion based on the fact that his attorney allegedly misled him about the consequences of his sentencing on parole eligibility.[11] According to Webb, his attorney “told[] him that he would not be subject to the law requiring him to serve 85% of his sentence in prison on the manslaughter conviction before becoming eligible for parole.”[12] Instead, Webb said he was led to believe that he would be parole eligible after serving only 40% of his sentence.[13] Webb, in his motion, said that he would not have pled guilty had he not been misled.[14] He further argued that because the 85 percent rule was written into the involuntary manslaughter statute,[15] it was a direct consequence of his sentencing, and therefore he should have been informed of it by the sentencing court.[16]
The motion court overruled Webb’s motion without an evidentiary hearing, and, after an affirmation from the Missouri Court of Appeals, Eastern District, the Supreme Court of Missouri granted transfer.[17] In the per curiam opinion, the majority noted that it had previously held that a “failure to inform a client about parole eligibility does not render the attorney’s representation ineffective.”[18] However, the court also found that “a plea may be considered involuntary if counsel misinforms the client as to the effects of the plea.”[19]
Finding that appellate courts traditionally interpreted prior Supreme Court of Missouri decisions by “holding that counsel’s misinformation renders the representation ineffective,” the court officially adopted this rule and held Webb was entitled to an evidentiary hearing based on his motion.[20]
Judge Zel M. Fischer in his dissent focused on Webb’s answers to the standard questions asked when Webb initially made his plea. According to Judge Fischer, the court discharged its duty to ensure the plea was voluntary by asking the required questions.[21]
The per curiam opinion noted that because Webb’s motion could be addressed under Missouri law, there was no need to address the United States Supreme Court’s Padilla v. Kentucky[22] opinion.[23] The concurring opinion written by Judge Michael Wolff addressed the Padilla issue. The Padilla ruling “will require that defense attorneys have a professional obligation to inform their clients of the truly clear consequences of their guilty pleas,” Judge Wolff wrote, adding that Padilla “puts courts on notice that reciting the usual no-threats-no-promises litany at sentencing does not necessarily ensure that the plea is voluntary.”[24]
Padilla, Judge Wolff explained, created a new duty to inform the client of plea consequences where the consequence is “truly clear.”[25] Judge Wolff discussed the scope of Padilla’s duty in regards to traditionally collateral consequences. Prior to Padilla, courts looking for a way to remove a sentencing consequence from Sixth Amendment protection labeled any such consequence, aside from the sentence itself, as collateral.[26] Padilla may change this, Judge Wolff noted, perhaps changing the relevant question from whether the consequence is collateral to whether the consequence is “‘truly clear’ and an integral part of the punishment.”[27]
Judge Fischer in dissent indicated his agreement with the idea that Padilla represented a significant shift in Sixth Amendment jurisprudence.[28] The Padilla decision dismissed “the longstanding and unanimous position of the lower federal courts with respect to the scope of criminal defense counsel’s duty to advise on collateral consequences.”[29] Many serious and truly clear consequences[30] flow from a guilty plea, Judge Fischer stated, and the Padilla decision could potentially extend to “all, some, or none” of those consequences.[31] Judge Fischer wrote that the potential for unpredictability under Padilla, as opposed to the “predictability” of the distinction between direct and collateral consequences, could limit the decision’s scope to only the deportation context.[32]
Despite his disagreement with the case’s outcome, Judge Fischer did note that Webb’s successful petition carried with it some risk. “I do find some comfort in the fact that Webb and other defendants who have admitted they are guilty as charged but yet seek to set aside their guilty plea relying on the holding of the per curiam opinion will lose the benefit of their bargain obtained as a result of their plea and ultimately may receive a less favorable outcome.”[33]
II. Legal Background
A. Misinformation and Ineffective Assistance of Counsel
According to the court’s decision in Reynolds v. State, “a defendant’s plea is not involuntary when a defendant pleads guilty to a crime without knowing that the crime carries a mandatory minimum penalty.”[34] Instead, according to Reynolds, “the defendant is required only to have knowledge of the direct consequences of his plea” for it to be voluntary and intelligent.[35] To get around Sixth Amendment duties to inform, courts often labeled all but the sentence itself as a collateral, rather than direct, consequence.[36] The Reynolds court found parole eligibility to be a “collateral consequence” of a guilty plea, thus relieving both counsel and the trial court of any obligation to inform the defendant of a plea’s impact on parole.[37]
Misinforming the client, on the other hand, “may affect the voluntariness of a defendant’s plea,”[38] thus creating a “distinction between misinforming and failure to inform.” All three courts of appeals in Missouri have followed this distinction,[39] granting evidentiary hearings when a defendant alleges misinformation regarding parole eligibility.
Regarding the standard questions asked by the court before the plea is made, the court in Shackleford v. State[40] and Reid v. State,[41] recognized that “[a] negative response to a routine inquiry whether any promise other than stated on the record had been made is too general to encompass all possible statements by counsel to his client.”[42] Therefore, such promises cannot serve as a conclusive refutation of alleged attorney misinformation.[43]
Judge Fischer’s dissent offered a different reading of Reynolds. The only thing required by Reynolds, according to Judge Fischer, is that the defendant be advised of the mandatory minimum sentence.[44] A court discharges its duty to ensure the plea was voluntary by asking the required questions, according to Fischer.[45]
Judge Fischer also felt the use of Shackleford and Reid was misplaced, as another case, Peiffer v. State,[46] was authoritative.[47] In Peiffer, the defendant claimed ineffective assistance of counsel based on the fact his attorney misinformed him about the effect of his plea on his early release on another sentence.[48] The Peiffer court found conclusive Peiffer’s testimony that he understood the penalty range for the counts to which he pleaded, that he was made no promises other than that he would receive concurrent sentences, and that “his attorney had fully advised him of all legal aspects of the case, including his rights and the possible consequences of entering guilty pleas.”[49] Thus, the Peiffer court held “Peiffer failed to establish any facts not refuted by the record; therefore, he was not entitled to a hearing.”[50]
B. The Impact of Padilla
The United States Supreme Court’s opinion in Padilla v. Kentucky concerned a lawful permanent resident of California who pleaded guilty to marijuana transportation.[51] Padilla claimed his attorney told him he would not face deportation because of his plea, contrary to the law.[52] The Supreme Court of Kentucky rejected Padilla’s claim on the grounds that deportation was only a collateral, rather than direct, consequence of the sentencing.[53] The United States Supreme Court, on the other hand, found it unnecessary to address the direct-collateral consequences issue given “the unique nature of deportation,” as it was an integral part of the penalty and a “practically inevitable” consequence of the sentence.[54]
Given the “practically inevitable” nature of the consequence, the United States Supreme Court addressed the question of defense counsel effectiveness under the Strickland v. Washington[55] test.[56] That test first inquires whether the “counsel’s representation ‘fell below an objective standard of reasonableness…then asks ‘whether there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’”[57] The Supreme Court defined reasonability as “the practice and expectation of the legal community” as outlined by “prevailing professional norms.” Padilla found it “unreasonable for plea counsel not to advise his or her client of ‘practically inevitable’ consequences” of a guilty plea.[58]
Judge Fischer wrote in his dissent that Judge Wolff’s concurring opinion could be overreading Padilla’s holding.[59] Padilla, Judge Fisher wrote, “would not apply to the collateral consequences of parole eligibility,”[60] stating his belief that Padilla would be limited only to the deportation context.[61] Citing two cases[62] that declined to extend Padilla, Fischer determined Padilla’s actual holding concerned only affirmative duties to advise clients on deportation issues that may arise from their pleas.[63]
Most disconcerting under Judge Wolff’s reading, according to Judge Fischer, was the issue regarding the impact of a defendant’s knowledge of the implications of parole eligibility requirements on plea voluntariness.[64] Citing Reynolds[65] and Drone v. State,[66] Judge Fischer stated the Court had already held “the sentencing court and counsel have no duty to inform the defendant of this collateral consequence of the guilty plea,” adding defense counsel had a duty only to advise about the plea’s direct consequences.[67] Such a determination was backed up, Judge Fischer reasoned, by what he called the Supreme Court’s “last word on this issue, Hill v. Lockhart,” which held that under the United States Constitution plea voluntariness was unaffected by the State’s failure to inform a defendant about parole eligibility.[68]
III. Comment
Read through the lens of only the per curiam opinion’s holding, it would seem the impact of Webb will not be great. As the opinion noted, the court in Webb merely adopted a rule already observed in lower courts. Under that rule, a defense attorney continues to have no duty to inform her client of the collateral consequences of a guilty plea. Should the attorney do so, however, that information must be accurate, or the client will later likely have a successful claim for ineffective assistance of counsel.
The implications of the United States Supreme Court’s decision in Padilla v. Kentucky, on the other hand, may have a far more significant impact. As Judge Wolff explained in his concurring opinion, Padilla appears to blur the line between collateral and direct consequences of a guilty plea. The Padilla decision potentially creates an affirmative duty in both counsel and the courts to ensure a defendant is aware of the “truly clear” consequences, regardless of their former designation as collateral or direct consequences.
Given the confusing, oft-changing, and disparate nature of Missouri sentencing requirements, the pressure on both the court and defense attorneys could be significant under Padilla. Coupled with the idea that the traditional questions used to determine the voluntariness of a plea are insufficient to determine whether all duties were effectively carried out, the decision creates the potential for a significant shift in the way traditionally-understood sentencing duties are carried out in guilty pleas. Should Padilla ultimately be read in like with Judge Wolff’s concurrence, a significant simplification of such sentencing requirements will likely be in order.
Whether such an outcome inevitably flows from Padilla, however, remains uncertain. As both Judge Wolff in concurrence and Judge Fischer in dissent note, it is not yet known if the decision will extend beyond the specific deportation-related facts of that case. Until the true scope of the opinion is determined, however, both courts and defense counsel would do well to heed Judge Wolff’s warning to “be as vigilant as possible to explain that the guilty plea to which a defendant agrees may carry serious consequences beyond the immediate punishment.”[69]
-Heath Hooper
[1] No. SC91012 (Mo. March 29, 2011) (en banc) (per curium), available at http://www.courts.mo.gov/file.jsp?id=45680. The West reporter citation is Webb v. State, 334 S.W.3d 126 (Mo. 2011) (en banc) (per curiam).
[2] Webb, 334 S.W.3d at 126-27.
[3] Webb was ultimately not sentenced as a persistent offender. Id. at 128.
[4] Id. at 127.
[5] Id.
[6] Id. After rejecting the prosecutor’s recommendation, the court offered Webb the opportunity to withdraw his plea, which Webb declined. Id. at 127-28.
[7] Id. at 127.
[8] Id.
[9] Id.
[10] Id.
[11] Id. at 128.
[12] Id. at 127.
[13] Id. at 128.
[14] Id.
[15] See Mo. Rev. Stat. § 565.024.2 (2000).
[16] Webb, 334 S.W.3d at 128.
[17] Id.; Webb v. State, No. ED93682, 2010 WL 1860037, at *1 (Mo. App. E.D. May 11, 2010).
[18] Id. at 127 (citing Reynolds v. State, 994 S.W.2d 944, 946 (Mo.1999) (en banc)).
[19] Id. (citing Reynolds, 994 S.W.2d at 946).
[20] Id.
[21] Id. at 143.
[22] 130 S.Ct. 1473 (2010).
[23] Webb, 334 S.W.3d. at 131 n.8.
[24] Id. at 134.
[25] Id. at 138 (citing Padilla, 130 S.Ct. at 1483). Judge Wolff also noted there may be ethical ramifications for failure to inform clients, though such issues were less clear. Id. at 139 n.11.
[26] Id. at 139.
[27] Id.
[28] Id. at 144.
[29] Id. at 145 (quoting Padilla, 130 S.Ct. at 1492 (Alito, J., concurring)).
[30] These consequences include civil commitment, disqualification from public office, civil forfeiture, sex offender registry, the loss of the right to vote, disqualification from public benefits, ineligibility to possess firearms, dishonorable discharge from the Armed Forces, and loss of business and professional licenses.
[31] Webb, 334 S.W.3d at 145.
[32] Id.
[33] Id.
[34] Id. at 129 (citing Reynolds, 994 S.W.2d at 946).
[35] Id. (citing Reynolds, 994 S.W.2d at 946).
[36] Id. at 139.
[37] Id. at 129 (citing Reynolds, 994 S.W.2d at 946).
[38] Id. (quoting Reynolds, 994 S.W.2d at 946).
[39] Id. (citing Hao v. State, 67 S.W.3d 661 (Mo. App. E.D. 2002); Patterson v. State, 92 S.W.3d 212 (Mo. App. W.D. 2002); Fogle v. State, 124 S.W.3d 509, 511-12 (Mo. App. S.D. 2004)).
[40] 51 S.W.3d 125, 128 (Mo. App. W.D. 2001).
[41] Reid v. State, 192 S.W.3d 727 (Mo. App. E.D. 2006).
[42] Reid, 192 S.W.3d at 733.
[43] Webb, 334 S.W.3d. at 129 (citing Shackleford, 51 S.W.3d at 128; Reid, 192 S.W.3d at 733). Concerning Webb, the court disagreed with the motion court that his misconduct allegation was refuted by the record because “an attorney’s advice is not the same as a promise.” Id. at 130. Further, Webb’s indication that he was satisfied with his representation could not be taken at face value as it was made before discovering the attorney’s advice was incorrect. Id. The State argued that despite the lack of refutation, Webb’s review of the SAR should have informed him of the parole eligibility requirements. Id. Upon review, the Court found the SAR had no language that would notify either Webb or his attorney about the 85% rule. Id. at 131. Because of this, the Court held Webb was entitled to an evidentiary hearing, and could be entitled to relief should his allegations prove true. Id. Further, the Webb case created a new rule that the SAR will now be part of the record after the plea, albeit under seal. Id. at 130-31.
[44] Id. at 142.
[45] Id. at 142-43.
[46] 88 S.W.3d 439 (Mo. 2002) (en banc).
[47] Webb, 334 S.W.3d. at 143.
[48] Id. (citing Peiffer, 88 S.W.3d at 445).
[49] Id. (quoting Peiffer, 88 S.W.3d at 445).
[50] Id. (quoting Peiffer, 88 S.W.3d at 446).
[51] Id. at 134.
[52] Id.
[53] Id.
[54] Id. at 144-45 (quoting Padilla, 130 S.Ct. 1473, 1480-81 (2010)).
[55] 466 U.S. 668, 694-95 (1984).
[56] Webb, 334 S.W.3d. at 135 (citing Padilla, 130 S.Ct. at 1482).
[57] Id. at 135 (quoting Padilla, 130 S.Ct. at 1482) (internal citations omitted).
[58] Id. (citing Padilla, 130 S.Ct. at 1480). Judge Wolff also noted that the National Legal Aid and Defender Association’s Compendium of Standards for Indigent Defense Systems and the AMA Standards for Criminal Justice, which were cited by the Supreme Court in Padilla, also required counsel to inform clients about parole eligibility requirements. Id. at 137-38.
[59] Id. at 140 (Fischer, J., dissenting).
[60] Id.
[61] Id. at 143-44.
[62] Brown v. Goodwin, No. 09-211, 2010 WL 1930574, at *13 (D.N.J. May 11, 2010); Maxwell v. Larkins, No. 4:08 CV 1896 DDN, 2010 WL 2680333, at *8-10 (E.D. Mo. July 1, 2010).
[63] Webb, 334 S.W.3d at 144.
[64] Id.
[65] 994 S.W.2d at 946.
[66] 973 S.W.2d 897, 902 (Mo. App. W.D. 1998).
[67] Webb, 334 S.W.3d. at 144 (citing Reynolds, 944 S.W.2d at 946; Drone, 973 S.W.2d at 902; Mo. Sup. Ct. R. 24.02(b)). In footnotes, Judge Fischer expressed some concern about what the concurring opinion’s findings implied: “Is there such a disconnect between the sentence imposed and the sentence actually served that defense counsel and/or the court now have an affirmative duty to advise the defendant that his plea of guilty may carry a risk of actually serving his sentence?” Id. at 144 n.3. Judge Fischer also observed that advising a defendant about parole eligibility introduced problems by creating a false expectation of parole at the first opportunity. Id. at 144 n.4.
[68] 474 U.S. 52, 56 (1985) (“We have never held that the United States Constitution requires the State to furnish a defendant with information about parole eligibility in order for the defendant's plea of guilty to be voluntary[.]”).
[69] Id. at 140 (Wolff, J., concurring).
