Deonta Johnson, Appellant, v. State of Missouri, Respondent.

DEONTA JOHNSON, Appellant, v. STATE OF MISSOURI, Respondent. ) ) ) ) ) ) ) ) ) No. ED113384

Appeal from the Circuit Court of St. Louis County The Honorable Ellen H. Ribaudo, Judge Introduction Deonta Johnson ("Movant") appeals the motion court's judgment after it overruled his amended Rule 24.035 post-conviction relief motion without an evidentiary hearing. 1 1 All Rule references are to the Missouri Supreme Court Rules 2021.

Movant raises two points on appeal. In his first point, Movant argues Plea Counsel was ineffective for failing to explain the distinction between a life sentence and a 30-year sentence. In his second point, Movant argues the circuit court did not comply with Rule 24.02(b)(1) when it did not explain the distinction between a life sentence and a

2 30-year sentence. In both points, Movant asserts had he been properly advised of this distinction, he would not have pled guilty and would have proceeded to trial. This Court holds Movant alleged facts, not refuted by the record, resulting in prejudice when Plea Counsel stated—and the circuit court confirmed—a life sentence was "calculated at 30 years" which led him to believe he was receiving a maximum 30- year sentence rather than a life sentence. Because the record does not conclusively refute Movant's claims, he is entitled to an evidentiary hearing. Both points are granted. The motion court's judgment is reversed, and the case is remanded. Factual and Procedural History Movant was charged with two counts of first-degree murder, two counts of first- degree robbery, and four counts of armed criminal action for forcibly stealing cellular phones from two victims, then murdering them through the knowing use, assistance, and aid of a deadly weapon in November 2018. 2 2 At the time of Movant's offenses, the maximum penalty for the class A felony first- degree murder "was death or imprisonment for life without eligibility for probation or parole." Section 565.020.2. The maximum penalty for the class A felony first-degree robbery was life imprisonment. Section 558.011.1(1). Armed criminal action is an unclassified felony with a minimum sentence of three years and no maximum sentence. Section 571.015.1. All statutory references are to RSMo 2016 unless otherwise indicated. On October 1, 2021, the State filed a substitute inf ormation in lieu of indictment amending the first-degree murder charges to second-degree murder and recharging the remaining six counts. Movant agreed to plead guilty to all counts. 3

3 This Court will focus on the facts for Movant's plea to second-degree murder because those were the only offenses the circuit court imposed a life sentence on.

3 At the plea hearing, the State presented the factual basis for the charges, which Movant admitted. The circuit court asked the prosecutor to state the range of punishment. The prosecutor stated the second-degree murder offenses were class A felonies which carried a "minimum of ten years up to 30 years or life[.]" Movant answered "yes" when asked if he understood the ranges of punishment. The circuit court then stated, "And I believe those sentences that are on the murder second degree ... require 85 percent of any sentence before being eligible for parole?" The prosecutor answered, "Correct, Your Honor." Movant confirmed he also understood this. The prosecutor recommended Movant be sentenced to life imprisonment for both second-degree murder counts, and three years' imprisonment on the four armed criminal action counts, with all of these sentences running concurrently. The prosecutor also recommended Movant be sentenced to 15 years' imprisonment on both first-degree robbery counts, with those two sentences running concurrently. The prosecutor then recommended the concurrent robbery sentences be ordered to run consecutively to the other counts, for a total of life imprisonment plus 15 years. Movant confirmed he understood the State's recommendation and requested the court to follow it. Movant then pled guilty to all eight counts. When the circuit court proceeded to sentence Movant, the following exchange occurred: [PLEA COUNSEL]: Judge, we would merely ask that you follow the recommendation, and the agreed upon plea negotiation in this matter. And I would ask the Court or I would state for the record that I just want to make it clear that under Missouri law, life is calculated at 30 years. Or as 30 years.

4 THE COURT: The Court does understand that that is how it's calculated. The circuit court accepted the State's recommendation and sentenced Movant to life imprisonment with the possibility of parole for both second-degree murder offenses. Movant confirmed the sentences he received were pursuant to the State's plea agreement. The written sentence and judgment entered for the second-degree murder offenses showed "30" written next to "years" but the "30" was scratched out and "life" was written next to it for both counts. Movant filed a timely pro se Rule 24.035 motion for post-conviction relief. The motion court appointed counsel, who filed a timely amended motion raising two claims. First, Movant alleged the circuit court erred by not explaining the distinction between a life sentence with the possibility of parole and a 30-year sentence and incorrectly stating he would have to serve 85 percent of any sentence before being eligible for parole. Movant alleged he "could have reasonably believed not only that a life sentence equated to thirty years in prison, but that he would only have to serve eighty-five percent of thirty years which is about twenty-five and a half years." Second, Movant alleged Plea Counsel was ineffective for not explaining the distinction between a life sentence with the possibility of parole and a 30-year sentence and for misrepresenting the length of a life sentence when he stated "life is calculated at 30 years." Movant claimed the judgment's scratched out language underscored Plea Counsel's misrepresentation. Specifically, he alleged "when he looked over the completed sentencing paperwork, it stated thirty years' imprisonment ... [and] it wasn't until he arrived at the Department of Corrections that he saw '30 years' was scratched out on his sentencing paperwork and life was written in."

5 In its findings of fact and conclusions of law, the motion court found Movant's claims were refuted by the record and denied his request for an evidentiary hearing. The motion court found the calculation of a life sentence was a collateral matter, but Plea Counsel's statement was consistent with the plea agreement's terms and a factual statement of how the Department of Corrections calculates life sentences for parole eligibility. The motion court further found the record refuted Movant's claims he was mistaken that a life sentence with the possibility of parole was a 30-year sentence. The motion court explained the judgment's scratched out language was a corrected clerical error, and the oral pronouncement at sentencing was for Movant to receive life sentences with the possibility of parole for the second-degree murder offenses. Finally, the motion court found Movant understood the consequences of his guilty plea and there was no likelihood he was prejudiced by Plea Counsel's statement. This appeal follows. Standard of Review This Court's review of a Rule 24.035 post-conviction relief motion is "limited to a determination of whether the findings and conclusions of the [motion] court are clearly erroneous." Rule 24.035(k). "Appellate courts presume the motion court's findings are correct and a judgment is clearly erroneous when, in light of the entire record, the court is left with the definite and firm impression that a mistake has been made." Nelson v. State, 719 S.W.3d 729, 734 (Mo. banc 2025) (internal quotation omitted) (quoting Flaherty v. State, 694 S.W.3d 413, 416 (Mo. banc 2024)). Movant must prove claims "by a preponderance of the evidence." Rule 24.035(i).

6 To be entitled to an evidentiary hearing, Movant "must show that (1) he alleged facts, not conclusions, warranting relief; (2) the facts alleged raise matters not refuted by the files and record of his case; and (3) the matters complained of resulted in prejudice to him." Reid v. State, 716 S.W.3d 45, 50 (Mo. App. E.D. 2025). "In determining whether the motion court clearly erred in denying this claim without an evidentiary hearing, [this Court] must take the facts Movant alleged in his amended motion as true." Wyatt v. State, 662 S.W.3d 129, 137 (Mo. App. E.D. 2023). "An evidentiary hearing may only be denied when the record conclusively shows that the movant is not entitled to relief." Reid, 716 S.W.3d at 50 (quoting Jackson v. State, 660 S.W.3d 679, 682 (Mo. App. E.D. 2023)). Discussion Points One and Two: Ineffective Plea Counsel and Circuit Court Rule 24.02(b)(1) Compliance Party Positions In Point One, Movant argues the motion court clearly erred in denying his amended Rule 24.035 motion without an evidentiary hearing because Plea Counsel was ineffective for not explaining the distinction between a life sentence and a 30-year sentence. Movant contends Plea Counsel "went out of his way" during the sentencing hearing to state on the record "life is calculated at 30 years," which misrepresented the length of his sentence. Movant thus argues he pled guilty "under the incorrect belief that he would receive a maximum sentence of thirty years rather than a natural life sentence." In Point Two, Movant argues the motion court clearly erred in denying his amended Rule 24.035 motion without an evidentiary hearing. He asserts the circuit court

7 did not comply with Rule 24.02(b)(1) because it did not explain the distinction between a life sentence and a 30-year sentence. Movant contends the circuit court incorrectly stated he would have to serve only 85 percent of any sentence he received before being eligible for parole and agreed with Plea Counsel "life is calculated at 30 years." Based on these statements, Movant argues he could have reasonably believed not only that a life sentence equaled 30 years in prison, but he would have to serve only 85 percent of his 30-year sentence, which is very different from the life sentence he must serve. The State argues Movant failed to allege any facts not refuted by the record demonstrating Plea Counsel was ineffective or the circuit court did not comply with Rule 24.02(b)(1). The State contends the record contains no facts Plea Counsel or the circuit court advised Movant before entering his plea or thereafter he would receive a 30- year sentence rather than a life sentence. The State further argues Plea Counsel's statement, "life is calculated at 30 years," which the circuit court confirmed, correctly stated how parole eligibility is calculated, which is a collateral consequence of Movant's plea. Finally, the State maintains Movant cannot demonstrate prejudice. Ineffective Assistance of Counsel "To be entitled to postconviction relief for ineffective assistance of counsel, 'a movant must show by a preponderance of the evidence that his or her trial counsel failed to meet the Strickland test.'" Nelson, 719 S.W.3d at 736 (quoting Flaherty, 694 S.W.3d at 420). "Strickland requires the movant to show that his or her 'counsel's performance was deficient,' and that counsel's deficient performance 'prejudiced the defense[.]'" Id. (alteration in original) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

8 2052, 80 L.Ed.2d 674 (1984)). "Both deficient performance (i.e., the performance prong) and prejudice (i.e., the prejudice prong) must be shown by a preponderance of the evidence ... to prove ineffective assistance of counsel." Id. (alteration in original) (internal quotation omitted). "Prejudice exists if the movant can show that, but for counsel's ineffective assistance, he would have not pleaded guilty and instead would have insisted upon going to trial." Reid, 716 S.W.3d at 51 (quoting Whitehead v. State, 481 S.W.3d 116, 123 (Mo. App. E.D. 2016)); see also Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1984). "Following a guilty plea, the ineffectiveness inquiry is limited to whether counsel's ac tions impinged on the movant's ability to enter a knowing and voluntary plea." Dorsey v. State, 115 S.W.3d 842, 845 (Mo. banc 2003). "The range of punishment to which a defendant may be sentenced is a direct consequence of a guilty plea...." Reid, 716 S.W.3d at 53. "Mistaken beliefs about sentencing affect a defendant's ability to knowingly enter a guilty plea if the mistake is reasonable and the mistake is based upon a positive representation upon which the movant is entitled to rely." Dorsey, 115 S.W.3d at

1. "By contrast, parole eligibility is considered to be a 'collateral consequence' of a

plea, about which counsel has no obligation to inform the defendant." Simmons v. State, 432 S.W.3d 306, 308 (Mo. App. E.D. 2014). "That said, a defendant's mistaken belief regarding parole eligibility is not a collateral matter if it is reasonable and based on a 'positive representation upon which the movant is entitled to rely.'" Martinez v. State, 698 S.W.3d 518, 523 (Mo. App. E.D. 2024) (quoting Hefley v. State, 626 S.W.3d 244, 249–50 (Mo. banc 2021)).

9 Movant pled guilty to two counts of second-degree murder. Second-degree murder is a class A felony. Section 565.021.2. The range of punishment for a class A felony is "a term of years not less than ten years and not to exceed thirty years, or life imprisonment ...." Section 558.011.1(1). Second-degree murder is also classified as a dangerous felony. Section 556.061(19). A defendant found guilty of a dangerous felony "shall be required to serve a minimum prison term of eighty-five percent of the sentence imposed by the court ...." Section 558.019.3. 4 4 All references to this section are to RSMo. Cum. Supp. 2019. A "minimum prison term' shall mean time required to be served by the offender before he or she is eligible for parole, conditional release or other early release by the department of corrections." Section 558.019.5. "For the purpose of determining the minimum prison term to be served ... [a] sentence of life shall be calculated to be thirty years ...." Section 558.019.4(1). Hence, 30 years' imprisonment was not the maximum sentence Movant could serve for his life sentences. During the plea colloquy, the record reflects the State correctly stated the range of punishment for the class A felonies as "a minimum of ten years up to 30 years or life in the Missouri Department of Corrections." See section 558.011.1(1). Movant stated he understood the range of punishment. The State then recommended Movant be sentenced to life imprisonment for both second-degree murder counts. Movant indicated he understood the State's recommendation and asked the circuit court to follow it. Thus, to this point, the record refutes any allegation Movant was misinformed about the range of punishment for the class A felonies or the State's recommendation of life sentences for

10 the second-degree murder offenses. The record also refutes any allegation Movant was misinformed about having to serve 85 percent of any sentence before being eligible for parole because the circuit court expressly informed him of this, the State confirmed it, and Movant stated he understood it. See section 558.019.3. The issue is whether Plea Counsel's statement, "life is calculated at 30 years," misinformed Movant about the maximum length he would serve under a life sentence. The State argues this claim is refuted by the record because section 558.019.4(1) states "life shall be calculated to be thirty years" when determining the minimum prison term to be served for purposes of parole eligibility, which is a collateral consequence of Movant's guilty plea. This Court disagrees. This Court recognizes section 558.019.4(1) states, "life is calculated at 30 years" for determining Movant's parole eligibility. Yet, the timing of Plea Counsel's statement is critical because it was not made in the context of calculating parole eligibility. The circuit court mentioned parole eligibility after the prosecutor explained the range of punishment, stating, "And I believe those sentences that are on the murder second degree ... require 85 percent of any sentence before being eligible for parole[.]" The State then made its recommendations for each count, Movant confirmed he understood the recommendations, and he pled guilty to each count. The circuit court proceeded to sentencing and heard a victim impact statement. Immediately before the circuit court pronounced its sentences, Plea Counsel stated, "life is calculated at 30 years." Without more context, Movant's allegation he believed this meant he would receive a maximum sentence of 30 years—rather than referring to his parole eligibility as the State suggests—

11 is not conclusively refuted by the record because his belief was based on Plea Counsel's positive representation immediately before the circuit court imposed sentencing. Hence, there is a reasonable basis in the record to believe the timing of Plea Counsel's statement could have misled Movant into believing a life sentence equaled a maximum term of 30 years' imprisonment, not that the statement was a comment on parole eligibility. Movant's amended motion also alleged facts not refuted by the record his mistaken belief was compounded when considering the judgment's scratched out language. Movant alleged when he first saw the judgment, it stated 30 years' imprisonment, but when he arrived at the Department of Corrections, he discovered "30" scratched out and "life" written in. Because this Court must take the facts Movant alleged in his amended motion as true, we hold Movant alleged facts not refuted by the record warranting relief. See Wyatt, 662 S.W.3d at 137. Rule 24.02(b)(1) Compliance This Court's finding Movant alleged facts not refuted by the record regarding Plea Counsel's alleged misinformation does not end our inquiry. "Importantly, a movant's guilty plea is voluntary 'even though his attorney gave him erroneous advice if the court's questioning of the defendant at the plea proceeding thoroughly disabused him of any preconceived notions regarding the consequences of a guilty plea[].'" Briley v. State, 464 S.W.3d 537, 542 (Mo. App. E.D. 2015) (emphasis in original) (quoting Allen v. State, 233 S.W.3d 779, 783 (Mo. App. E.D. 2007)). Movant alleges the circuit court did not comply with Rule 24.02(b)(1) when it confirmed "life is calculated at 30

12 years" because it led him to mistakenly believe a life sentence equaled 30 years and he would have to serve only 85 percent of that 30-year sentence. Rule 24.02(b)(1) directs the circuit court to "address the defendant personally in open court, and inform defendant of, and determine that defendant understands ... [t]he nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law[.]" As stated, the circuit court correctly informed Movant of the range of punishment for second-degree murder and the State's recommendation he receive life sentences. The circuit court also correctly informed Movant he would have to serve 85 percent of any sentence because second-degree murder is a dangerous felony under section 558.019.3. As with Point One, the issue is whether the circuit court's confirmation, "life is calculated at 30 years," violated Rule 24.02(b)(1) because it misinformed Movant about the maximum length of the sentence he would serve under a life sentence. Based on the reasoning stated in Point One, this Court finds the circuit court did not thoroughly disabuse Movant of any preconceived notions regarding the consequences of his guilty plea after Plea Counsel stated, "life is calculated at 30 years." In fact, the circuit court confirmed Plea Counsel's assertion, stating, "The Court does understand that that is how it's calculated." Hence, Movant has alleged facts, not refuted by the record, warranting relief. Prejudice The State further argues Movant did not demonstrate prejudice for either claim because he made mere conclusory allegations that but for Plea Counsel's and the circuit

13 court's alleged errors, he would not have pled guilty and would have insisted on going to trial. This Court rejects this argument. "In the context of a guilty plea, 'the movant can [only] satisfy the prejudice requirement by alleging facts showing that but for counsel's deficient performance, the movant would not have pleaded guilty and would have gone to trial.'" Forman v. State, 661 S.W.3d 43, 47 (Mo. App. E.D. 2023) (quoting Booker v. State, 552 S.W.3d 522, 531 (Mo. banc 2018)). Forman recognized when seeking post-conviction relief from a guilty plea, Hill created this "necessary factual predicate[] for prejudice." Id. Forman held the movant's prejudice allegation mirrored the necessary factual predicates for prejudice that Hill identified, which was sufficient to obtain an evidentiary hearing. Id. In Wyatt, this Court found the movant alleged facts not refuted by the record to support his claim plea counsel did not discuss the applicability of lesser-included defenses, which entitled him to an evidentiary hearing. Wyatt, 662 S.W.3d at 137. When analyzing whether the movant alleged prejudice, Wyatt stated, "without the benefit of an evidentiary hearing, we must take Movant at his word" when he alleged he would not have pled guilty and would have proceeded to trial but for plea counsel's deficient performance. Id. This conforms with the dictate this Court accept the facts alleged in a movant's amended motion as true. Id. Like Wyatt, this Court must also take Movant at his word that he would not have pled guilty and would have proceeded to trial had he been properly advised of the distinction between a life sentence and 30-year sentence and the maximum sentences he would have to serve. Movant's assertion he would have rejected the plea agreement and proceeded to trial requires a credibility determination by the motion court on remand.

14 Because Movant's claims are not conclusively refuted by the record, the motion court clearly erred in denying his Rule 24.035 amended motion without an evidentiary hearing. Points One and Two are granted. Conclusion The motion court's judgment is reversed, and the case is remanded for the motion court to conduct an evidentiary hearing.

Michael S . Wright, Presiding Judge and Virginia W. Lay, Judge concur.