“Group Plea” Failed To Explore Attorney’s Conflict In Brother- Sister Defense: Missouri Holds Conflict Requires Post-Conviction Hearing

The Missouri Supreme Court remanded a case involving an attorney’s alleged conflict in representing two clients charged with crimes

The DePriests are brother and sister. After a maintenance man reported a marijuana growing operation in their apartment, the police searched it and seized several plants, seedlings, packages of marijuana, and a firearm. David and Natalie were charged separately with: (1) producing a controlled substance by cultivating more than five grams of marijuana under section 195.211,2 (2) possession of a controlled substance with intent to distribute under section 195.211, and (3) unlawful possession of a weapon under section 571.020. The DePriests were represented by the same counsel throughout their separate criminal proceedings.

The state offered a joint plea deal to the DePriests of 10 years’ imprisonment with the possibility of probation if they successfully completed a program of shock incarceration under section 559.115. In response, defense counsel wrote a joint letter to the DePriests advising them both not to take the offer. In so doing, he acknowledged that the strength of the state’s case against Natalie was much weaker than its case against David, stating: “I really do not see how the Prosecutor thinks he has any case against [Natalie] for cultivation. Even the charge of possession against Natalie may be rather weak ….”

Defense counsel then filed motions to suppress evidence in both cases and requested a joint preliminary hearing at which to present those motions. In response, the state sent a letter to defense counsel withdrawing the earlier plea offer. Later, the state made a new joint plea offer, this time proposing 15-year sentences with the possibility of probation under section 559.115 for both David and Natalie. Defense counsel rejected this offer and proposed, instead, suspended impositions of sentence for both defendants. The state declined and stated that no further joint offers would be forthcoming.

David and Natalie were not incarcerated during these initial plea negotiations. During the negotiations, however, Natalie was charged with an unrelated misdemeanor for passing a bad check. Based on that charge, the state moved to revoke Natalie’s bond in the present case. The state then sent defense counsel a plea offer for Natalie alone. The prosecutor offered Natalie a better deal if she would testify against her brother, at the same time noting that this created a conflict of interest between counsel’s representation of David and Natalie and that the state might move for disqualification…

The attorney continued to represent both leading to a “group plea”

The DePriests pleaded guilty at a group plea hearing. The court entered guilty pleas for a total of seven defendants simultaneously. The court advised the seven defendants of their rights as a group and questioned them as a group. The court took their pleas moving down the line of defendants. It made no inquiry into the possibility of a conflict of interest due to counsel’s joint representation of Natalie and David, although it was evident at the hearing that they were represented by the same counsel and received the same plea deal even though they played different roles in the crimes to which they pleaded guilty.

 The trial court accepted both DePriests’ pleas. At the sentencing hearing in November 2013, defense counsel argued that the court should suspend the impositions of sentence for both David and Natalie and place them both on probation. The state argued that David and Natalie should each receive the maximum prison sentences on all counts, with no possibility of probation under section 559.115. The trial court sentenced David and Natalie as recommended by the prosecutor to 15-year sentences on the first two counts, to be served concurrently. David received a seven-year consecutive sentence on the weapons count. Neither David’s nor Natalie’s sentence included the possibility of probation under section 559.115.

The trial court had improperly refused conduct a post-conviction hearing on the conflict-rooted ineffective assistance claims

Though it is difficult at times to extract the precise factual allegations in the DePriests’ motions from their surrounding inferences and arguments, both amended motions set forth sufficient facts showing that their joint defense counsel acted under an actual (not merely theoretical) conflict of interest that adversely affected counsel’s representation of each defendant. Even though both motions allege numerous facts and circumstances in support of this conclusion, only a few of them need be highlighted here. First, the motions allege that defense counsel acknowledged, almost from the beginning of the joint representation, that he believed the evidence of David’s guilt was strong but that the evidence of Natalie’s guilt was weak or non-existent. Despite this perceived asymmetry, the motions allege that the initial plea offers from the state tendered the same terms (at least with respect to the first two counts) to both defendants and that these offers were contingent upon acceptance by both defendants.

The actual conflict triggered the necessity of a hearing

David and Natalie entered their guilty pleas as part of a larger, “group” plea. As this Court noted in Roberts, 276 S.W.3d at 836 n.5, group pleas are fraught with unnecessary risk and should be avoided. It cannot be known – and does not matter whether the use of this discredited practice is to blame for the trial court’s failure to react to the obvious possibility that an actual conflict of interest existed between David and Natalie and that this conflict might have adversely affected defense counsel’s ability to represent either of them (let alone both of them) adequately. The possibility that the group plea procedure contributed to the trial court’s failure to inquire into and make findings about these issues on the record, however, should be added to the long and growing list of reasons why this practice should be consigned to judicial history.

Daily Journal Online reported on the criminal sentencing. (Mike Frisch)