IN THE MISSOURI COURT OF APPEALS
WESTERN DISTRICT
TYREESE R. THOMPSON, )
)
Appellant, )
) WD76794
v. )
) OPINION FILED:
) September 9, 2014
STATE OF MISSOURI, )
)
Respondent. )
Appeal from the Circuit Court of Buchanan County, Missouri
The Honorable Patrick K. Robb, Judge
Before Division One: Mark D. Pfeiffer, Presiding Judge, and
Lisa White Hardwick and Karen King Mitchell, Judges
Tyreese Thompson appeals the denial, without an evidentiary hearing, of his
Rule 24.0351 motion for post-conviction relief. Thompson claims that his plea counsel provided
ineffective assistance by failing to investigate and seek to suppress evidence discovered as a
result of Thompson‟s allegedly illegal seizure. Thompson further claims that counsel also failed
to advise Thompson of the possibility of suppression; thus, Thompson‟s plea was rendered
involuntary and unknowing. The State argues that Thompson waived his claims when
Thompson entered a voluntary and knowing guilty plea. We affirm.
1
All rule references are to the Missouri Court Rules 2013, unless otherwise noted.
Factual Background
On May 6, 2011, Thompson was riding in a maroon GMC Sonoma driven by Caci Clizer
and owned by Clizer‟s father. They stopped at Speedy‟s Convenience Store in St. Joseph,
Missouri, so that Thompson could purchase some soda. Clizer parked the car facing the store, so
that the only manner of egress was to put the car in reverse. After Thompson exited the store,
Clizer asked him to drive. At the same time, law enforcement officers Zack Craft and Brett Coy
were dispatched to Speedy‟s to investigate a possible drunk driver. An unidentified caller had
advised that a woman driving a maroon GMC Sonoma may be intoxicated and could be found at
Speedy‟s. After Thompson sat in the driver‟s seat and prepared to start the car, he noticed a
police cruiser with its emergency lights on parked behind him, blocking his exit. An officer
approached the driver‟s side of the vehicle and asked for Thompson‟s license and registration.
Thompson advised the officer that his license was suspended.
The officer then had Thompson move to the passenger seat and had Clizer exit the
vehicle in order to perform a field sobriety test, which she ultimately passed, suggesting that she
was not intoxicated. The officer then sought and received permission from Clizer to search the
vehicle. The officer found both marijuana and a large amount of currency in the car, and both
Thompson and Clizer were arrested.
Thompson was later charged with the class B felony of possession of a controlled
substance (specifically more than five grams of marijuana) with intent to distribute, in violation
of section 195.211.2 Thompson entered a plea agreement with the State whereby, in exchange
for Thompson‟s guilty pleas to the charge arising from the search described above and two other
2
All statutory references are to the Missouri Revised Statutes 2000, as updated through the 2010
Cumulative Supplement, unless otherwise noted.
2
drug charges arising from a separate case,3 the State agreed not to seek enhancement based upon
Thompson‟s prior felony record and to recommend concurrent sentences on all charges as well
as those for which Thompson was already serving time.
Thompson submitted plea petitions to the court for both cases4 in which he acknowledged
the nature of the charges against him, as well as the corresponding ranges of punishment.
Thompson claimed that he “told [his] lawyer all the facts and circumstances known to [him]
about the charges made against [him] in the information.” Thompson further acknowledged his
understanding that he did not have to plead guilty, and that by pleading guilty, he was waiving:
(a) the right to a trial by jury[,] (b) the right to see and hear all witnesses called to
testify against [him] and to cross-examine all witnesses[,] (c) the right to use the
power of the court to compel the production of any evidence, including the
attendance of any witnesses in [his] favor[,] (d) the right to have the assistance of
counsel during the trial, and (e) the right to take the witness stand at [his] sole
option and if [he did] not take the witness stand no inference of guilt may be
drawn from such failure.
Thompson denied the existence of any threats or promises made against or to him or his family
members in order to induce his plea. He then declared:
My lawyer has counseled and advised me on the nature of each charge, on all
lesser included charges, if any, and on all possible defenses that I might have in
this case.
I am satisfied with the advice and help provided to me by my attorney and there is
nothing more I want him or her to do before I enter my plea of guilty.
The petition closed with the following assertion: “I offer my plea of guilty freely and voluntarily
and with full understanding of all the matters set forth in the information and in this petition.”
3
The separate drug charges arose when a car that Thompson was riding in got pulled over for a broken
brake light. As part of the stop, Thompson was asked to step out of the car. After doing so, Thompson fled from the
police officer. While he was running, he threw more than five grams of marijuana on the ground. He was
subsequently caught and arrested, and during a search incident to arrest, cocaine was also discovered in his pocket.
4
The plea petition for the marijuana possession case was not included in the legal file. We presume it
contained the same information as the petition for the other drug charges that was included.
3
At the plea hearing, Thompson reiterated his understanding of his rights as outlined in the
plea petitions and that he was waiving them by pleading guilty. Thompson again denied the
existence of any promises or threats, apart from the plea agreement he entered with the State.
Thompson indicated that he was satisfied with plea counsel‟s representation and that there was
nothing more he wanted plea counsel to do for him before entering his guilty pleas. Thompson
advised the court that it was his decision to plead guilty and that he was doing so because he was,
in fact, guilty of the charges. The court accepted Thompson‟s pleas, finding that they were
entered knowingly and voluntarily. The court then sentenced Thompson in accordance with the
terms of the plea agreement to concurrent seven-year terms of imprisonment on each charge.
Thompson thereafter filed pro se Rule 24.035 motions for each drug case.5 Appointed
counsel filed an amended motion, alleging (among other claims) that plea counsel provided
ineffective assistance by failing to investigate and file a motion to suppress evidence seized as a
result of the search of the maroon GMC Sonoma on May 6, 2011. Specifically, the amended
motion alleged that the officer‟s action of parking the police cruiser with active emergency lights
behind the Sonoma, blocking its exit, constituted an illegal seizure, and that everything that
followed (including the search that led to the marijuana forming the basis for the charge) was
fruit of the poisonous tree. The amended motion alleged that plea counsel failed not only to
investigate the suppression issue but also to advise Thompson of the possibility of seeking
suppression. Thompson claimed that, had he known he had a valid ground for suppression, he
would not have pled guilty, but would have sought a trial.6
5
These cases were consolidated for purposes of post-conviction relief.
6
The motion also sought to vacate Thompson‟s plea of guilty on the two unrelated drug charges on the
ground that, had he known he was facing only the two charges rather than three (assuming the first would have been
dismissed upon suppression of the State‟s evidence), he would not have pled guilty, but would have gone to trial.
Thompson makes no argument that the evidence related to these other crimes was inadmissible or any claim that
counsel‟s advice to plead guilty to these offenses was ineffective.
4
The motion court denied Thompson‟s motion without an evidentiary hearing, finding that
Thompson failed to allege facts that, if true, would warrant relief and that Thompson‟s claims
were refuted by the record. Thompson appeals.
Standard of Review
Appellate review of the motion court‟s denial of a Rule 24.035 motion is “limited to a
determination of whether the findings and conclusions of the [motion] court are clearly
erroneous.” Rule 24.035(k). We presume that the motion court‟s findings are correct; thus, the
appellant bears the burden of demonstrating clear error. Baumruk v. State, 364 S.W.3d 518, 525
(Mo. banc 2012). “„The [motion] court‟s findings and conclusions are clearly erroneous only if,
after reviewing the entire record, the appellate court is left with the definite and firm impression
a mistake has been made.‟” Scott v. State, 414 S.W.3d 57, 60 (Mo. App. W.D. 2013) (quoting
Scarborough v. State, 363 S.W.3d 401, 404 (Mo. App. S.D. 2012)).
Analysis
Thompson raises four points on appeal, all related to plea counsel‟s alleged failure to
investigate, advise Thompson about, and seek suppression of evidence due to an allegedly illegal
seizure. The State argues in response to all claims that Thompson waived his right to challenge
the admissibility of the State‟s evidence when he voluntarily and knowingly entered his guilty
pleas. Thompson argues that his pleas did not result in waiver insofar as Thompson was
unaware that the circumstances of his seizure would have supported legal grounds for
suppression. He claims that his lack of awareness rendered his subsequent pleas involuntary and
unknowing. But because Thompson failed to allege sufficient facts to entitle him to relief, we
affirm the motion court‟s decision to overrule Thompson‟s motion without an evidentiary
hearing.
5
“A post-conviction movant is entitled to an evidentiary hearing only if: (1) he alleges
facts that, if true, would warrant relief; (2) the allegations are not refuted by the record; and (3)
the movant was prejudiced by the alleged errors.” Id. “A hearing is not required if the court
determines that „the motion and the files and records of the case conclusively show that the
movant is entitled to no relief.‟” Id. (quoting Rule 24.035(h)).
Here, the motion court found that Thompson was not entitled to an evidentiary hearing
because he failed to allege facts that, if true, would warrant relief and because his allegations
were refuted by the record. These findings are not clearly erroneous.
“A conviction after a plea of guilty normally rests on the defendant‟s own admission in
open court that he committed the acts with which he is charged.” McMann v. Richardson, 397
U.S. 759, 766 (1970). “That admission may not be compelled, and since the plea is also a waiver
of trial—and . . . a waiver of the right to contest the admissibility of any evidence the State might
have offered against the defendant—it must be an intelligent act „done with sufficient awareness
of the relevant circumstances and likely consequences.‟” Id. (quoting Brady v. U.S., 397 U.S.
742, 748 (1970)) (emphasis added). And “when the defendant . . . admits his guilt, . . . he
assumes the risk o[f] ordinary error in either his or his attorney‟s assessment of the law and
facts.” Id. at 774. Put simply, “a plea of guilty . . . is not subject to collateral attack . . . on the
ground that it was motivated by [inadmissible evidence] unless the defendant was incompetently
advised by his attorney.” Id. at 772.
Rather than argue that plea counsel provided incompetent advice regarding whether
Thompson should plead guilty, Thompson argues that plea counsel provided no advice regarding
the potential for suppression, that counsel thereby provided ineffective assistance, and that
6
counsel‟s failure rendered his subsequent plea unknowing and involuntary.7 Because Thompson
has couched his claim as one of ineffective assistance of counsel, it is subject to the two-prong
Strickland inquiry.
“A convicted defendant‟s claim that counsel‟s assistance was so defective as to require
reversal of a conviction . . . has two components.” Strickland v. Washington, 466 U.S. 668, 687
(1984). The defendant must show both “that counsel‟s performance was deficient” and “that the
deficient performance prejudiced the defense.” Id. To demonstrate deficient performance, the
defendant must show “that counsel made errors so serious that counsel was not functioning as
the „counsel‟ guaranteed the defendant by the Sixth Amendment.” Id. And to demonstrate
prejudice, the defendant must show “that counsel‟s errors were so serious as to deprive the
defendant of a fair trial.” Id. In the context of a guilty plea, this generally requires that the
defendant demonstrate that, “but for counsel‟s errors, he would not have pleaded guilty and
would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). “Unless a
defendant makes both showings, it cannot be said that the conviction . . . resulted from a
breakdown in the adversary process that renders the result unreliable.” Strickland, 466 U.S. at
687.
To be entitled to relief on his claim of ineffective assistance, premised on counsel‟s
failure to advise him of a potentially valid attack on the State‟s case, Thompson had to establish,
at a minimum, not only the unconstitutionality of the seizure but also “that his attorney’s advice
to plead guilty without having made inquiry into the [alleged unconstitutional seizure] rendered
that advice outside the „range of competence demanded of attorneys in criminal cases.‟” Tollett
v. Henderson, 411 U.S. 258, 268 (1973) (emphasis added). In other words, whether the State‟s
7
Because we find that Thompson failed to sufficiently allege a claim of ineffective assistance of counsel,
we need not address whether counsel‟s alleged deficiencies rendered his plea unknowing and involuntary.
7
case rests in any part on potentially suppressible evidence is not counsel‟s only concern when
advising a client whether to enter a guilty plea.
The principal value of counsel to the accused in a criminal prosecution often does
not lie in counsel‟s ability to recite a list of possible defenses in the abstract, nor
in his ability, if time permitted, to amass a large quantum of factual data and
inform the defendant of it. Counsel‟s concern is the faithful representation of the
interest of his client and such representation frequently involves highly practical
considerations as well as specialized knowledge of the law. Often the interests of
the accused are not advanced by challenges that would only delay the inevitable
date of prosecution, or by contesting all guilt. A prospect of plea bargaining, the
expectation or hope of a lesser sentence, or the convincing nature of the evidence
against the accused are considerations that might well suggest the advisability of a
guilty plea without elaborate consideration of whether pleas in abatement . . .
might be factually supported.
Id. at 267-68 (internal citations omitted). “Plea bargains are the result of complex negotiations
suffused with uncertainty, and defense attorneys must make careful strategic choices in
balancing opportunities and risks.” Premo v. Moore, 131 S.Ct. 733, 741 (2011).
The opportunities, of course, include pleading to a lesser charge and obtaining a
lesser sentence, as compared with what might be the outcome not only at trial but
also from a later plea offer if the case grows stronger and prosecutors find
stiffened resolve. A risk, in addition to the obvious one of losing the chance for a
defense verdict, is that an early plea bargain might come before the prosecution
finds its case is getting weaker, not stronger. The State‟s case can begin to fall
apart as stories change, witnesses become unavailable, and new suspects are
identified.
Id. Thus, a defendant seeking to establish that plea counsel was ineffective in advising the
defendant to plead guilty must show that the advice to plead guilty itself, in light of all the
various considerations, was incompetent. “The stakes for defendants are high, and many elect to
limit risk by forgoing the right to assert their innocence.” Id. at 744. But “[a] defendant who
accepts a plea bargain on counsel‟s advice does not necessarily suffer prejudice when his counsel
fails to seek suppression of evidence, even if it would be reversible error for the court to admit
that evidence.” Id.
8
Here, Thompson has simply failed to allege that counsel‟s advice to plead guilty was
incompetent in light of all of the risks and opportunities facing Thompson at the time. Rather
than suggest that plea counsel‟s consideration of factors other than the ability to seek suppression
were insufficient to warrant the advice to plead guilty, Thompson focused only on whether
counsel‟s failure to advise him about the potential for suppression was incompetent. But there
were other considerations suggesting the advisability of a guilty plea pursuant to a plea
agreement. Under the plea agreement, Thompson not only received a favorable disposition
(concurrent sentences on all charges together—including the two other drug charges arising from
a separate case for which there appears to be no valid basis for suppression of evidence—and a
robbery charge already being served) but also avoided sentence enhancement based upon his
prior felony record. In addition, Thompson was set to go to trial the following day on the
unrelated two-count drug case. Thus, the reasonable inference is that had Thompson not
accepted the combined deal at that time, the opportunity would not have been available in the
future. These are valid considerations suggesting that entering a guilty plea was likely in
Thompson‟s best interest. And his motion wholly failed to allege otherwise. In short,
Thompson‟s failure to plead facts demonstrating that counsel‟s advice to plead guilty under these
circumstances was incompetent is fatal to his claim.
“Counsel‟s actions are presumed competent,” Lyons v. State, 39 S.W.3d 32, 36 (Mo. banc
2001), and where a post-conviction movant fails to allege facts to overcome that presumption, he
is not entitled to an evidentiary hearing. See George v. State, 403 S.W.3d 709, 711 (Mo. App.
W.D. 2013). Here, Thompson simply failed to plead that counsel‟s advice regarding whether to
plead guilty was in any way incompetent. The record suggests the contrary and, in fact, supports
9
the presumption of competence. Accordingly, the motion court committed no error in overruling
Thompson‟s motion without an evidentiary hearing.
All of Thompson‟s points on appeal are denied.
Conclusion
The motion court did not clearly err in overruling Thompson‟s Rule 24.035 motion. Its
judgment is affirmed.
Karen King Mitchell, Judge
Mark D. Pfeiffer, Presiding Judge, and
Lisa White Hardwick, Judge, concur.
10