Link to Mo. Sup. Ct. Opinion
Cooper pleaded guilty to two criminal offenses. His plea agreement, which included a favorable sentencing recommendation, required that he waive his right to seek post-conviction relief. He subsequently filed a motion for post-conviction relief pursuant to Missouri Supreme Court Rule 24.035 alleging ineffective assistance of counsel. The primary issue was whether Cooper's waiver was rendered involuntary because his defense counsel had a conflict of interest in advising Cooper to waive potential claims concerning her effectiveness. The Supreme Court of Missouri held that because Cooper knowingly, voluntarily, and intelligently waived his post-conviction rights, his motion filed pursuant to Rule 24.035 must be dismissed.
I. Facts and Holding
Willie Cooper pleaded guilty to two counts of stealing property worth more than $500.[2] In addition to pleading guilty, Cooper also agreed to waive his post-conviction relief remedies.[3] In exchange, the State recommended a sentence of fifteen years on each count to run concurrently, with execution of the sentences suspended, and five years of supervised probation.[4] The plea court engaged in a plea colloquy, wherein numerous questions were asked of Cooper, including whether his plea was voluntarily of his own free will, whether he was forced to plead guilty, whether he was satisfied with his counsel's representation, whether his counsel put any pressure on him to plead guilty, and whether his post-conviction rights were explained to him.[5] The court explained to Cooper what his rights were under Rule 24.035, and Cooper also signed a waiver of his post-conviction rights that explained that he would be relinquishing his right to file a motion alleging ineffective assistance of counsel.[6] The trial court ultimately determined that Cooper “freely, voluntarily and knowingly entered his pleas of guilty, [and]…waived all Constitutional rights….”[7]
Cooper violated the terms of his probation, resulting in the execution of his fifteen-year sentences.[8] After execution, he filed a motion for post-conviction relief pursuant to Rule 24.035.[9] This motion alleged that his counsel was ineffective for coercing him to plead guilty by threatening to withdraw, promising he would receive the maximum sentence if he went to trial, and falsely telling him his two cases would be tried together.[10] The motion court overruled the motion on its merits without an evidentiary hearing, concluding that Cooper's allegations were refuted by the statements made by Cooper during the plea hearing.[11]
Cooper appealed the motion court's judgment.[12] The court of appeals ruled that the appeal had to be dismissed with direction to the motion court to vacate its judgment and dismiss the motion because Cooper had waived his post-conviction rights when pleading guilty.[13] The Supreme Court of Missouri then ordered the case transferred.[14] In a 7-0 opinion, the Supreme Court reached the same conclusion as the court of appeals.[15] This decision was made after the court determined Cooper's waiver of his post-conviction rights was knowing, voluntary, and intelligent, despite Cooper's claim that his counsel's conflict of interest in advising to waive such rights tainted the waiver.[16] Cooper based his argument on an opinion issued by the Supreme Court of Missouri Advisory Committee, which deemed it impermissible under Rule 4-1.7(a)(2) for defense counsel to advise a defendant to waive his post-conviction relief claims of ineffective assistance of counsel.[17]
The court began its analysis by highlighting that Cooper's conviction resulted from a guilty plea.[18] Most importantly, in this case, Cooper not only pleaded guilty, but also waived his right to proceed under a Rule 24.035 motion, the vehicle that he was attempting to use in this case.[19] The court pointed out that case law in Missouri and other jurisdictions supported the ability of a defendant to waive post-conviction relief rights in return for a reduced sentence, so long as the defendant is informed of his rights and the waiver is knowing, voluntary, and intelligent.[20] Further, although it is possible to attack the waiver on the grounds that counsel was ineffective, rendering the plea unknowing, involuntary, and unintelligent, there was no factual basis for the claim of ineffective assistance of counsel here.[21] Cooper was given a written waiver, which he read, understood, and signed.[22] He was also questioned extensively about whether defense counsel fully advised him of the consequences to pleading guilty, whether he understood the decision he was making, and whether his decision was the result of free will.[23]
To address Cooper's claim that his waiver was unknowing, involuntary, and unintelligent due to defense counsel's conflict of interest in advising such a waiver, pursuant to the Advisory Committee opinion, the court first determined it was only a potential conflict, not an actual conflict.[24] Further, although the Advisory Committee opinion provided that advising a client to waive claims of ineffective assistance creates a significant risk that the representation of the client would be materially limited by defense counsel's personal interests, the court noted that no attorneys have petitioned the court for review of the Advisory Committee’s opinion and no discipline was being sought against an attorney for violating the opinion.[25] Also, the court noted the Committee’s opinion cited no case law, and that "a violation of a professional rule does not amount to a constitutional violation."[26] The court concluded by highlighting that Cooper received "substantial benefit in exchange for his waiver of post-conviction relief."[27] In the end, the court held that the record demonstrated Cooper was properly informed of his post-conviction rights, and then knowingly, voluntarily, and intelligently waived those rights.[28]
II. Legal Background
Rule 24.035 permits a defendant to file a motion to vacate, set aside, or correct the judgment or sentence if the conviction or sentence violates the constitution and laws of Missouri or the United States Constitution, including claims of ineffective assistance counsel, the court imposing the sentence lacked jurisdiction, or the sentence was in excess of the maximum allowed.[29] Although claims of ineffective assistance of counsel are cognizable in such a motion, they are immaterial except to the extent counsel's errors affected the voluntariness of the plea.[30] This is due to the fact that the defendant must show prejudice in a post-conviction claim. Where there is a guilty plea, the defendant must show a reasonable probability that, if not for counsel's errors, he would not have pleaded guilty and would have gone to trial.[31]
Although a criminal defendant has many valuable rights that cannot be denied, many of those rights can be waived, including constitutional rights.[32] For instance, when a defendant enters a guilty plea, he waives his constitutional right to trial and privilege against self-incrimination.[33] A defendant may also waive post-conviction rights as part of a plea agreement.[34] As the court pointed out in its opinion, the ability to waive post-conviction rights is settled and widely accepted.[35] There are many advantages to plea agreements, primarily "speed, economy, and finality."[36] Waivers of post-conviction rights serve these advantages and are valuable to the defendant as a bargaining chip to "gain concessions from the government."[37] There are only two requirements for a valid waiver: that the defendant be properly informed of his rights, and that the waiver be made knowingly, voluntarily, and intelligently.[38] However, a waiver cannot be knowing and voluntary where it is the result of ineffective assistance of counsel.[39] Therefore, a waiver of post-conviction rights does not preclude the defendant from arguing that his decision to waive was not knowing and voluntary.[40] In other words, the product of the alleged ineffectiveness cannot bar a claim concerning the ineffectiveness.[41]
Where a defendant who has pleaded guilty and waived post-conviction rights brings a motion for post-conviction relief arguing that his waiver was unknowing, involuntary, and unintelligent due to ineffective assistance of counsel, there are two inquiries.[42] First, there must be a basis for the claim of ineffective assistance of counsel.[43] Then, the court looks to whether the ineffectiveness relates to "validity of the plea."[44] Ineffective assistance of counsel has routinely been defined as the failure to "exercise the customary skill and diligence that a reasonably competent attorney would exercise in similar circumstances."[45] Where such a claim is founded on a conflict of interest, it must be shown that an actual conflict of interest adversely affected counsel's performance.[46] The defendant must show that something was done or forgone by counsel that was detrimental to the defendant but advantaged someone else.[47] Counsel is not necessarily ineffective where there is only a possible conflict of interest.[48]
In 2009, the Supreme Court of Missouri Advisory Committee issued a formal opinion concerning whether defense counsel could advise a defendant to waive post-conviction relief.[49] The Advisory Committee determined that it was impermissible for defense counsel to advise the defendant concerning a waiver of post-conviction claims because it would violate Rule 4-1.7(a)(2).[50] This rule provides that a concurrent conflict of interest exists if "there is a significant risk that the representation of [the client] will be materially limited…by a personal interest of the lawyer."[51] The Committee stated that defense counsel has a personal interest related to the potential for an ineffective assistance claim by the defendant.[52] It went on to say that "[i]t is not reasonable to believe that defense counsel will be able to provide competent and diligent representation to the defendant regarding the effectiveness of defense counsel's representation of the defendant."[53] It is important to note that Advisory Committee opinions are given no more weight than that of an opinion by any other competent attorney.[54] Further, as the court pointed out, a violation of a rule of professional conduct does not equate to a denial of effective assistance of counsel.[55]
III. Comment
Cooper claimed that his guilty plea was unknowing, involuntary, and unintelligent. To succeed on this claim, he had to show his counsel was ineffective, and that this ineffectiveness affected his plea. First, however, he had to overcome the obstacle to bringing his Rule 24.035 motion. To do this, he had to show that his waiver of post-conviction rights, like his plea, was also unknowing, involuntary, and unintelligent. In his motion, he claimed that he was coerced into pleading guilty as a result of numerous actions taken by his defense counsel. However, the record of the plea hearing refuted these allegations.[56] The last hope for Cooper was to argue that his counsel had a conflict of interest in advising him to waive his post-conviction rights. Even if successful, a ruling on the merits would be fruitless because the court essentially already ruled that the alleged actions taken by counsel did not affect the voluntariness of his waiver.[57] If it did not affect his waiver, it very likely did not affect his plea.
Regardless of the overall merit of Cooper's claim, his argument concerning his counsel's conflict of interest had support.[58] Perhaps this case would have been decided differently if it occurred at a different time in the proceedings or if there had been better facts. If an objection had been lodged prior to the guilty plea concerning the possible conflict, and the court denied the defendant an opportunity to show how the potential conflict may affect the voluntariness of his plea, this case may have come out differently considering U.S. Supreme Court precedent.[59] Because the conflict claim did not occur until an appeal on the motion for post-conviction relief, Cooper was required to show that counsel did something or did not do something that was detrimental to him and advantageous to another.[60] It could be argued that the action detrimental to the defendant and advantageous to another was the advice to waive post-conviction rights. The person advantaged is the defense counsel, who is effectively preventing any claims concerning the effectiveness of the representation. As the court acknowledged, if there is a factual basis for counsel's ineffective assistance, which is not clearly refuted by the record, the claim would likely be entertained.[61] Although reassuring, successful ineffective assistance of counsel claims are very rare.[62]
Every defendant has a constitutional right to effective assistance of counsel grounded in the Sixth Amendment right to a fair trial, even if the defendant is pleading guilty.[63] As important as the right to counsel is in our system of justice, counsel's actions go widely unchecked.[64] Plea agreements including a waiver of post-conviction rights, which are becoming more popular,[65] will further contribute to this state of affairs.[66] Therefore, rules of professional conduct, and enforcement of the same by the relevant authority or self-governance, become ever more important. Although the court held that defense counsel's potential conflict of interest did not affect the voluntariness of the defendant's waiver in this case, this does not license the actions specifically denounced in the Advisory Committee opinion. Perhaps the starting point to resolving this ethical dilemma is with prosecutors. As the Committee noted, as do other state ethics committees, prosecutors should not require waivers of post-conviction relief based on ineffective assistance of counsel as part of a plea agreement in the first place.[67] Although this will not entirely eliminate the conflict at issue here, it is a step in the right direction.
-Emily M. Park
[1] No. SC91695 (Mo. Dec. 6, 2011) (en banc), available at http://www.courts.mo.gov/file.jsp?id=51115. The West reporter citation is Cooper v. State, 356 S.W.3d 148 (Mo. 2011) (en banc).
[2] Id. at 2.
[3] Id. at 3.
[4] Id.
[5] Id. at 2-4.
[6] Id. at 4.
[7] Id.
[8] Id. at 5.
[9] Id.
[10] Id.
[11] Id.
[12] Id. at 2.
[13] Cooper v. State, No. ED94757, 2011 WL 532213, at *3 (Mo. App. E.D. Feb. 15, 2011).
[14] Cooper, No. SC91695, slip op. at 2.
[15] Id. at 14-15 (Martin, Sp.J., participated, and Draper, J., did not participate).
[16] Id. at 9-10, 14.
[17] Id. at 12 (citing Mo. S. Ct. Advisory Comm., Formal Op. 126 (2009)). The Advisory Committee is appointed by the Supreme Court of Missouri and has authority to issue formal opinions concerning the interpretation of Rules 4, 5, and 6. Mo. S. Ct. R. 5.01 and 5.30(a) (2003).
[18] Cooper, No. SC91695, slip op. at 6.
[19] Id. at 7.
[20] Id. at 8.
[21] Id. at 10, 11-12.
[22] Id. at 11.
[23] Id.
[24] Id. at 7-8.
[25] Id. at 13.
[26] Id. at 13-14 (citing Nix v. Whiteside, 475 U.S. 157, 165 (1986) and Mo. Sup. Ct. R. 4, Scope, ¶ [7]).
[27] Id. at 14.
[28] Id.
[29] Mo. Sup. Ct. R. 24.035 (2003).
[30] State v. Roll, 942 S.W.2d 370, 375 (Mo. 1997) (en banc) (citing Hill v. Lockhart, 474 U.S. 52, 58 (1985)).
[31] Id. at 374-75; Wiles v. State, 812 S.W.2d 549, 551 (Mo. App. S.D. 1991).
[32] State v. Valdez, 851 S.W.2d 20, 21 (Mo. App. W.D. 1993) (quoting State v. Riley, 787 S.W.2d 314, 316 (Mo. App. E.D. 1990)) ("A defendant's right to file a motion for new trial and the right of appeal are 'valuable rights which may not be denied absent a waiver.'"); State v. Curry, 714 S.W.2d 798, 800 (Mo. App. E.D. 1986) ("A person can waive fundamental constitutional rights, including the right against self-incrimination").
[33] Roussel v. State, 314 S.W.3d 398, 401 (Mo. App. S.D. 2010).
[34] Jackson v. State, 241 S.W.3d 831, 833 (Mo. App. E.D. 2007); Valdez, 851 S.W.2d at 22.
[35] Cooper, No. SC91695, slip op. at 8-9 (citing Allen v. Thomas, 458 S.E.2d 107, 108 (Ga. 1995); Stahl v. State, 972 So. 2d 1013, 1015 (Fla. Dist. Ct. App. 2008); Willett v. State, 993 S.W.2d 929, 929-30 (Ark. 1999); Medel v. State, 184 P.3d 1226, 1228 n.3 (Utah 2008); DeRoo v. U.S., 223 F.3d 919, 923 (8th Cir. 2000); Watson v. U.S., 165 F.3d 486, 489 (6th Cir. 1999); U.S. v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994); and U.S. v. Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993)).
[36] DeRoo v. U.S., 223 F.3d 919, 923 (8th Cir. 2000).
[37] Id.
[38] Jackson, 241 S.W.3d at 833.
[39] DeRoo, 223 F.3d at 923-24.
[40] Id. at 924
[41] Id.
[42] U.S. v. Cockerham, 237 F.3d 1179, 1187 (10th Cir. 2001) (citing U.S. v. Broce, 488 U.S. 563 (1989)).
[43] Id.
[44] Id.
[45] Brooks v. State, 51 S.W.3d 909, 913 (Mo. App. W.D. 2001) (citing State v. Simmons, 955 S.W.2d 729, 746 (Mo. 1997) (en banc)).
[46] Lomax v. State, 163 S.W.3d 561, 564 (Mo. App. E.D. 2005).
[47] Id.
[48] Helmig v. State, 42 S.W.3d 658, 680 (Mo. App. E.D. 2001).
[49] Mo. S. Ct. Advisory Comm., Formal Op. 126 (2009).
[50] Advisory Comm., Formal Op. 126.
[51] Mo. S. Ct. R. 4-1.7(a)(2).
[52] Advisory Comm., Formal Op. 126.
[53] Id.
[54] ACLU/E. Mo. Fund v. Miller, 803 S.W.2d 592, 600 (Mo. 1991) (en banc).
[55] Nix v. Whiteside, 475 U.S. 157, 165-66 (1986).
[56] Cooper v. State, No. SC91695, slip op. at 2-4 (Mo. Dec. 6, 2011) (en banc).
[57] Id. at 11-12.
[58] Advisory Comm., Formal Op. 126 ("We note that at least three other states have issued opinions consistent with our view.").
[59] See Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). The Court provided that if a trial court fails to afford the defendant, upon objection, an opportunity to show how the potential conflict inherent in multiple representation imperils his right to a fair trial, a reviewing court could presume that the possibility for conflict resulted in ineffective assistance. Id. Although the case concerns conflicts involved in multiple representation, it has been applied in cases involving other varieties of conflicts; however, the U.S. Supreme Court and the Eighth Circuit have left the question of whether Cuyler applies in these cases "open." Wemark v. Iowa, 322 F.3d 1018, 1021 (8th Cir. 2003).
[60] Lomax v. State, 163 S.W.3d 561, 564 (Mo. App. E.D. 2005).
[61] Cooper, No. SC91695, slip op. at 11.
[62] Stephanos Bibas, The Psychology of Hindsight and After-the-Fact Review of Ineffective Assistance of Counsel, 2004 Utah L. Rev. 1, 1 & n.5 (2004) ("Courts rarely reverse convictions for ineffective assistance of counsel, even if the defendant's lawyer was asleep, drunk, unprepared, or unknowledgeable. In short, any 'lawyer with a pulse will be deemed effective.'"); See also Barbara Fedders, Losing Hold of the Guiding Hand: Ineffective Assistance of Counsel in Juvenile Delinquency Representation, 14 Lewis & Clark L. Rev. 771, 809 (2010) ("As a result of the deferential test created by Strickland, ineffectiveness claims have failed where the trial attorney has been asleep, drunk or on drugs, unprepared, or utterly inept. Strickland has been toothless.").
[63] State v. Umphfrey, 242 S.W.3d 437, 442 (Mo. App. E.D. 2007) (quoting Maine v. Moulton, 474 U.S. 159, 170 (1985)) ("The right to counsel attaches in the critical stages in the criminal justice process when the state commits to prosecuting its case.").
[64] See supra note 62.
[65] See Mo. S. Ct. Advisory Comm., Formal Op. 126 (2009); Alan Ellis & Todd Bussert, Stemming the Tide of Postconviction Waivers, Crim. Just., Summer 2010, at 28 (2010).
[66] It is important to reiterate that such agreements do serve important purposes while also benefitting defendants. See supra notes 36, 37, and accompanying text.
[67] Mo. S. Ct. Advisory Comm., Formal Op. 126 (2009); Nev. Comm. on Ethics and Prof'l Responsibility, Formal Op. 48 (2011), available at https://www.nvbar.org/sites/default/files/Ethics_Op_48.pdf; Ala. State Bar, Off. Gen. Counsel, Op. 2011-02, available at http://www.alabar.org/ogc/PDF/2011-02.pdf.
