# Webb v. State > Supreme Court of Missouri · March 29, 2011 · 334 S.W.3d 126 URL: https://www.frixlaw.com/law-library/cases/9749935 ## Case - **Full name:** Eric WEBB, Appellant, v. STATE of Missouri, Respondent - **Court:** Supreme Court of Missouri - **Decided:** March 29, 2011 - **Citations:** 334 S.W.3d 126; 2011 Mo. LEXIS 80; 2011 WL 1157549 - **Precedential status:** Published - **Opinion:** Dissent by Fischer - **Judges:** Teitelman, Wolff, Breckenridge, Stith, Fischer, Price, Russell - **Cited by:** 72 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9749935 ## How later opinions describe it (automated extraction) - holding unnecessary to decide whether Padilla applies to parole eligibility given allegation counsel affirmatively provided misadvice; concurring and dissenting opinions indicate court divided over likely reach of Padilla - stating that misinforming a defendant of the collateral consequences of a plea may affect the voluntariness of that plea - explaining there is a distinction between misinforming a client and failing to inform a client about parole eligibility ## Opinion text ZEL M. FISCHER, Judge, dissenting. I respectfully dissent from the per cu-riam opinion because, in my view, the record clearly refutes Webb’s claim. Nothing in the record shows that the motion court’s overruling of Webb’s Rule 24.035 motion was clearly erroneous. Rule 24.035(k); Feldhaus v. State, 311 S.W.3d 802, 804 (Mo. banc 2010). I also think the concurring opinion may overread the holding of Padilla v. Kentucky, — U.S. —, 130 S.Ct. 1473 , 176 L.Ed.2d 284 (2010). 1 It suggests that the analysis of Padilla , which departed significantly from the well-settled law that defense counsel satisfied his constitutional duty when he informed the defendant of the direct consequences of his guilty plea but not necessarily the collateral consequences of his plea, may be expanded to collateral consequences in addition to deportation. In my view, the analysis of Padilla would not apply to the collateral consequence of parole eligibility. Webb’s Claim is Refuted by the Record Webb argues that if his counsel had told him that he would have to serve 85% of his *141 sentence before becoming eligible for parole, he would not have pleaded guilty. 2 He claims that he was prejudiced by his counsel’s misinformation because if he had known he would have to serve 85% of his sentence before becoming eligible for parole, he would have gone to trial. At the plea hearing, the following exchanged occurred: Court: Has anyone threatened you to get you to plead guilty? Webb: No. Court: Has anyone promised you anything other than the State’s recommendation to get you to plead guilty? Webb: No. Later at the hearing, the following also was said: Court: Did [your attorney] make you plead guilty against your free will? Webb: No. Court: Can you think of anything at all that they should have done differently in handling your case? Webb: No. Court: Are you completely satisfied with their legal services? Webb: Yes. After consideration of pleadings and the record, the motion court made findings of fact and conclusions of law that included the following: The record of the plea hearing conclusively refutes Movant’s allegation that his attorney promised that he would not have to serve 85% of his sentence. Early into Movant’s plea hearing, the Court asked Movant, “Has anyone promised you anything other than the State’s recommendation to get you to plead guilty?” To which Movant replied, “No.” Movant acknowledged that he was aware of his various trial rights and the consequences of a guilty plea upon those rights. [[Image here]] At no time during the entire hearing did Movant state that he felt compelled or coerced to plead guilty due to any promises regarding a certain percentage of his sentence that would have to be served before parole eligibility. “The defendant has no right to parole and may never receive parole.” Torrence [v. State, 861 S.W.2d 149, 150 (Mo.App.1993) ]. Rather, Movant stated affirmatively that no promises were made to him whatsoever other than the State’s recommendation. Counsel only has an obligation to inform a defendant of the direct consequences of his guilty plea and has no duty to inform the defendant of collateral consequences of pleading guilty and accordingly, counsel’s failure to advise defendant regarding collateral consequences of guilty plea cannot rise to level of constitutionally ineffective assistance of counsel; examples of collateral consequences of guilty plea include parole eligibility, right of crime victim or family of victim to be heard at sentencing, deportation proceedings, and sentencing after probation revocation. U.S.C.A. Const. Amend. 6. Brown v. State, 67 S.W.3d 708, 710 [ (Mo.App.2002) ]. [[Image here]] The trial court and counsel have a duty to inform the defendant of the “direct” consequences of pleading guilty, but not the “collateral” consequences. State v. Hasnan, 806 S.W.2d 54, 55 [ (Mo.App.1991) ]. Direct consequences “are those which definitely, immediately, and largely automatically follow the en *142 try of a plea of guilty.” Id. at 56 , quoting Huffman v. State, 703 S.W.2d 566, 568 (Mo.App.1986). The question is whether movant had the knowledge and understanding of the consequences of his plea. State v. Bursty, 395 S.W.2d 155, 159 (Mo.1965). “The rules are silent about the judge advising [movant] concerning application of parole, conditions of parole, length of time to be served before eligibility for parole, etc.” State v. Rice, 887 S.W.2d 425, 427 (Mo.App.1994); Rule 24.02(b). Parole is a “collateral” consequence. Id. “[CJounsel has no duty to inform a defendant of all the collateral consequences of his guilty plea.” Schofield v. State, 750 S.W.2d 463, 465 (Mo.App.1988). Failure of counsel to inform movant of all the collateral consequences of his guilty plea is an insufficient basis for an ineffective assistance claim. Clark v. State, 736 S.W.2d 483, 484 (Mo.App.1987). Improper advice or a lack of advice regarding collateral consequences, such as parole eligibility, does not automatically undermine the volun-tariness of the guilty plea. White v. State, 957 S.W.2d 805, 808 (Mo.App.1997); Torr ence v. State, 861 S.W.2d [149,] 150 (Mo.App.1993). Movant was informed of the direct consequences of his guilty plea. Prior to entering his guilty plea, the Court advised defendant of the mandatory minimum penalty provided by law and the maximum possible penalty provided by law. He waived his right to a trial as well as his right not to be compelled to incriminate himself when he entered a plea of guilty. As stated previously, to justify an evi-dentiary hearing, “the facts alleged [in Movant’s Motion] must raise matters not refuted by the files and records in the case.” [State v.] Brooks [ 960 S.W.2d 479, 497 (Mo. banc 1997) ]. Movant’s Motion fails to meet this burden because Movant’s own statements made during his plea hearing conclusively refute his claim that his attorney told him he would not have to serve 85% of any sentence, imposed. .To the contrary, Movant clearly and unequivocally stated that he was promised nothing except that which was contained in the recommendation from the State. Movant has not alleged facts unrefuted by the files and records in the case, as is required by Brooks, 960 S.W.2d at 497 . (Motion court’s citations to the record omitted.) At no point in the record did Webb state that his plea was based on a statement by defense counsel that he would only serve 40% of his sentence before becoming eligible for parole. Rather, Webb states that no promises were made to him, other than the State’s plea agreement, in return for his plea. The plea agreement was that the State would recommend a 10-year sentence on the manslaughter charge, a 10-year sentence on the armed criminal action charge, and that the sentences would run concurrently. The motion court’s determination that Webb’s claim is clearly refuted by the record is not clearly erroneous. Pursuant to our Rule 24.02(b)(1), the sentencing court accepting the guilty plea must advise the defendant of the “mandatory minimum penalty provided by law.” The term “‘mandatory minimum penalty’ does not refer to parole eligibility, but refers instead to the low end of the range of punishment for the offense proper.” Reynolds v. State, 994 S.W.2d 944, 947 (Mo. banc 1999). In this case, the sentencing court followed the protocol of our Rule 24.02(4)(c) ensuring that the plea was voluntary by “inquiring] as to whether the defendant’s willingness to plead guilty results from prior discussions between the prosecuting *143 attorney and the defendant or defendant’s attorney.” Additionally, using the exact words of that rule, the sentencing court addressed Webb in open court to determine that no “threats or promises apart from the plea agreement” had been made before the court accepted the plea and determined that the plea of guilty was voluntarily made. The per curiam opinion holds that Webb’s assertion of his attorney misadvis-ing him as to his parole eligibility is not clearly refuted by the record because no question was asked to him specifically regarding his parole eligibility. Op. at 130. In so holding, the per curiam opinion relies on two court of appeals cases: Shackleford v. State, 51 S.W.3d 125 (Mo.App.2001), and Reid v. State, 192 S.W.3d 727 (Mo.App.2006). However, the per curiam opinion ignores this Court’s decision in Peiffer v. State, 88 S.W.3d 439 (Mo. banc 2002), which, unlike Shackleford and Reid , is authoritative. In Peiffer , the defendant argued that he had received ineffective assistance of counsel because his counsel “told him that if he pleaded' guilty and received concurrent sentences, his date for earlier release on another sentence would not be affected.” 88 S.W.3d at 445 . He asserted that if his attorney had not given him this misinformation he would not have pleaded guilty. Id. In considering this argument, this Court reviewed Peiffer’s testimony at the plea hearing, which was as follows: Peiffer testified that he understood the range for each stealing count to be one day in jail to seven years in the penitentiary, possibly accompanied by a fine of no more than $5,000. When asked whether any promises were made other than that he would receive concurrent sentences for the four guilty pleas entered that day for his four different stealing charges, he said no. Peiffer also affirmatively answered that his attorney had fully advised him of all the legal aspects of his cases, including his rights and the possible consequences of entering guilty pleas. Id. at 446 . Based on this record, this Court determined that “Peiffer failed to establish any facts not refuted by the record; therefore, he was not entitled to a hearing.” Id. The record presented in this case is similar to that in Peiffer ; therefore, I would find that Webb has failed to establish any facts not refuted by the record. To do otherwise and require, as the per curiam opinion does, that a fact is only refuted upon a question narrowly asked regarding that particular fact would place the finality of guilty pleas on a slippery slope. This result will either lead to the trial court having to ask innumerable questions to inquire about every piece of advice given by defendant’s counsel or allow a defendant countless grounds to challenge his conviction based on a plea for which he already received a benefit. If Webb was sincerely relying on a belief that he would be eligible for parole after serving 40% of his sentence, then the general question he was asked was sufficient to have elicited that response. Analysis of Padilla I agree with the concurring opinion that “[t]he scope of the Padilla holding on counsel’s failure to advise a defendant of the consequences of his plea is not entirely clear.” Op. at 136. I agree that the concurring opinion applies similar analysis as applied by the United States Supreme Court in Padilla in that the Court emphasized that plea counsel renders deficient performance where counsel misinforms his client as to a ‘practically inevitable’ consequence of his guilty plea. However, unlike the concurring opinion, I do not anticipate *144 that the analysis of Padilla will be expanded by the United States Supreme Court beyond the deportation context. The holding in Padilla may be limited to apply only to its particular facts. There has not been uniformity in the expansion of Padilla beyond deportation cases. “[T]he holding of Padilla seems not importable — either entirely or, at the very least, not readily importable — into scenarios involving collateral consequences other than deportation.” Brown v. Goodwin, 2010 WL 1930574 at *13, (D.N.J. May 11, 2010) (declining to apply Padilla to a claim that counsel failed to inform the defendant that his guilty plea would place him at risk of civil commitment as a sexually violent predator); see also Maxwell v. Larkins, 2010 WL 2680333 at *8-10 (E.D.Mo. July 1, 2010) (declining to expand Padilla to find defense counsel ineffective for failing to advise the defendant of the possibility of commitment as a sexually violent predator, sex offender registry, or completion of the MOSOP program). The actual holding of Padilla is that defense counsel has an affirmative duty to advise the defendant when the terms of an immigration statute are clear and explicit that a conviction will require deportation and an affirmative duty to advise that a conviction may carry a risk of deportation when the immigration statute is not clear and explicit that a conviction will require deportation. 3 Padilla, 130 S.Ct. at 1483-84 . The most serious and consequential issue raised in the concurring opinion is whether it is necessary for defense counsel or the sentencing court to advise a defendant of the implications of the 85% rule affecting parole eligibility in § 558.019.3, RSMo Supp.2007, in order for his plea to be made knowingly, voluntarily, and intelligently. 4 This issue is not a matter of first impression, and, predictably, parole eligibility has been held to be a collateral consequence; therefore, the sentencing court and counsel have no duty to inform the defendant of this collateral consequence of the plea of guilty. Reynolds v. State, 994 S.W.2d 944, 946 (Mo. banc 1999); Drone v. State, 973 S.W.2d 897, 902 (Mo.App.1998). The duty of defense counsel, as explained in these cases, is to advise of the direct consequences of the plea of guilty. Reynolds, 994 S.W.2d at 946 ; Drone, 973 S.W.2d at 902 ; Rule 24.02(b). These cases relied on the United States Supreme Court’s pronouncement in Hill v. Lockhart that “[w]e 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. ...” 474 U.S. 52, 56 , 106 S.Ct. 366 , 88 L.Ed.2d 203 (1985). This is the last word from the United States Supreme Court on this issue. The Padilla decision marked “a major upheaval in the Sixth Amendment law.” Padilla, 130 S.Ct. at 1491 (Alito concurring). Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), decided that the constitutional right to effective assistance of counsel applied to guilty pleas, but some 26 years later, Padilla does not cite a single case from the United States Supreme Court or any other federal court that holds that defense coun *145 sel’s failure to provide advice regarding deportation consequences of a criminal conviction violated a defendant’s Sixth Amendment right. 130 S.Ct. at 1491 . The majority opinion in Padilla appropriately acknowledges that the lower courts are now quite experienced with applying Strickland but “casually dismisses 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.” Id. at 1492. 5 Deportation is a serious consequence of a guilty plea; not being eligible for parole until serving 85% of a sentence is a serious consequence of a guilty plea. But a criminal conviction resulting from a guilty plea can carry a wide variety of “truly clear” consequences other than conviction and sentence including 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. All, some, or none of these consequences could be extensions of the Padilla decision. The departure from the predictability of distinction between direct consequences and collateral consequences could be so unpredictable and unworkable that Padiüa may not be extended to collateral consequences other than deportation. Conclusion While I disagree with the per curiam opinion, 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. 6 If Webb is successful on remand in convincing the motion court he was affirmatively misinformed as to his parole eligibility and that if he had been correctly advised as to his parole eligibility, he would have gone to trial, he would be entitled to relief under the cases cited by the per curiam opinion. In addition to the possibility that Webb could be sentenced as a persistent offender on remand, he certainly risks a 15-year sentence for the involuntary manslaughter charge and a life sentence for the armed criminal action charge, plus the possibility that the sentencing court could run these sentences consecutively as opposed to concurrently. See § 565.024, RSMo Supp.2007; § 558.011.1(2), RSMo Supp.2007; § 571.015, RSMo 2000. For the foregoing reasons, I respectfully dissent from the per curiam opinion and would affirm the motion court’s judgment. . The per curiam opinion states "[i]t is not necessary to consider whether Padilla applies to other consequences such as parole eligibility, because Webb is entitled to an evidentiary hearing under Missouri’s case law.” Op. at 131 n. 8. . I agree this information should be included in the sentencing assessment report. . 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?” . The fact is that advising the defendant of when he may first be eligible for parole may be more harmful than helpful in the context of whether his plea of guilty is voluntary because it may create a false expectation that he will be paroled at the first opportunity. . This is the law in virtually all jurisdictions including 11 federal circuits, 30 states, and the District of Columbia. Padilla, 130 S.Ct. at 1487 (Alito concurring). . In this case, Webb was given the opportunity to withdraw his guilty pleas when the sentencing court, which after review of the sentencing assessment report, indicated it would not agree to the. two 10-year concurrent sentences pursuant to the plea agreement, but rather was going to enter two 12-year concurrent sentences. Webb voluntarily chose not to withdraw his guilty plea. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9749935. Public record. Not legal advice.