Justia.com Opinion Summary: Defendant was convicted by a jury of felonious restraint, deviate sexual assault, and first-degree sexual misconduct. Prior to sentencing, Defendant entered into an agreement with the State in which Defendant would plead guilty to two additional criminal counts and waive his rights to a jury trial, to direct appeal, and to seek post-conviction relief. In exchange, the State recommended that Defendant be sentenced to a combined total of fifteen years incarceration on all counts. The circuit court rendered and judgment and sentence in accord with the agreement. Defendant subsequently filed an amended motion for post-conviction relief, alleging ineffective assistance of counsel for, inter alia, incorrectly advising Defendant to waive his rights to a direct appeal. The motion court denied the motion. The Supreme Court vacated the motion court's judgment, holding that Defendant knowingly, voluntarily, and intelligently agreed to waive his post-conviction rights after his trial. Remanded with instructions to dismiss Defendant's post-conviction motion.
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SUPREME COURT OF MISSOURI
en banc
LESTER F. KRUPP, JR.,
Appellant,
v.
STATE OF MISSOURI,
Respondent.
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No. SC91613
APPEAL FROM THE CIRCUIT COURT OF ST. LOUIS COUNTY
The Honorable Colleen Dolan, Judge
Opinion issued December 6, 2011
Lester F. Krupp, Jr., was convicted by a jury of one count of felonious restraint,
four counts of deviate sexual assault, and one count of sexual misconduct. Prior to
sentencing, Krupp entered into an agreement with the State that he would plead guilty to
two additional counts: one count of felonious restraint and one count of second-degree
domestic assault. He also agreed to waive his right to a jury trial, right to direct appeal,
and right to seek post-conviction relief on the counts tried and also the counts to which he
pleaded guilty. In exchange for his pleas of guilty to the additional counts and his waiver
of these rights, the State recommended that Krupp be sentenced to a combined total of 15
years in the Missouri Department of Corrections on all counts. The circuit court rendered
a judgment and sentence in accord with the agreement.
Krupp subsequently filed a pro se post-conviction relief motion, and, thereafter,
counsel filed an amended motion pursuant to Rule 29.15.1 The motion court denied
Krupp's request for an evidentiary hearing and entered written findings of fact,
conclusions of law, and judgment overruling the amended motion on the merits.
Krupp appealed the overruling of his motion to the court of appeals. The court of
appeals transferred this case to this Court pursuant to Rule 83.02 because of the issue of
general interest and importance that the case raised. This Court vacates the motion
court's judgment and remands the case with instructions to dismiss Krupp's Rule 29.15
post-conviction motion.
Facts
Krupp was charged with two counts of felonious restraint, four counts of forcible
sodomy, four alternative counts of deviate sexual assault, one count of forcible rape, one
alternative count of sexual assault, one count of second-degree domestic assault, and one
count of first-degree sexual misconduct. Prior to trial, Krupp moved to sever one count
of felonious restraint and one count of second-degree domestic assault. The circuit court
sustained the motion and proceeded to trial on the 12 remaining counts.
At the conclusion of the trial, the jury found Krupp guilty of one count of
felonious restraint, four counts of deviate sexual assault, and one count of first-degree
1
The original pro se motion that included allegations that may have been considered under Rule
24.035 and Rule 29.15 was amended. The amended motion is pursuant to Rule 29.15 only and
only alleges ineffective assistance of counsel to matters related to the counts tried. Once the
amended motion is filed, those allegations not included in the amended motion are abandoned.
State ex el. Boggs v. Roper, 179 S.W.3d 893, 894 (Mo. banc 2005); Rule 29.15(g).
sexual misconduct. The jury acquitted Krupp on the four counts of forcible sodomy, one
count of forcible rape, and one count of sexual assault.
Prior to the sentencing phase of the trial, Krupp and the State made an agreement
regarding the two counts that previously had been severed from the jury trial and the
sentences to be ordered on the counts tried to the jury. The circuit court put the terms of
that agreement on the record. The State explained the agreement as follows:
[T]he State's recommendation is for the Court to sentence [Krupp] on all
the charges for a total of 15 years. In exchange for all that, [Krupp] will
waive his right to file a Post Conviction Relief Motion and waive his
appeals on all the charges, and in some form or another the sentence will be
a three, with a five consecutive to that, with a seven consecutive to that, for
a total of 15 years.
The court inquired of Krupp as to whether he understood the agreement.
Court: Has [your attorney] explained to you that you are entitled to have a
jury make a recommendation as to the sentences that should be imposed
regarding the counts they found you guilty of last evening[?]
Krupp: Yes.
Court: Is it true you wish to waive your right to jury sentencing and submit
to sentencing by the Court pursuant to an agreement your attorney has
reached with the office of the Prosecuting Attorney[?]
Krupp: Yes.
Court: Is it also true you wish to waive your right to a trial on the remaining
two counts and enter a plea of guilty to both of those pursuant to the State's
recommendation?
Krupp: Yes.
Court: Is it also part of the agreement that you are agreeing to waive your
right to an appeal, a Motion for New Trial, or a Post Conviction Relief
proceedings in this trial?
3
Krupp: Yes.
The State explained the evidence it would present as to the two counts filed against
Krupp and again stated it was recommending a 15-year total sentence for all counts for
Krupp. The court again questioned Krupp regarding this recommendation:
Court: Mr. Krupp, is that your understanding of what the State was going
to recommend if you entered a plea of guilty today?
Krupp: Yes.
Court: Has anyone made any threats or promises to you or your family to
convince you to enter this plea of guilty?
Krupp: No.
Court: Has your attorney done everything you've asked him to do?
Krupp: Yes.
Court: Has he answered all of your questions?
Krupp: Yes.
Court: Have you been given enough time to discuss this case with your
attorney?
Krupp: Yes.
Court: Do you have any complaints or criticisms of him?
Krupp: No.
Court: Do you know of anything he could have done that he didn't do?
Krupp: No.
Court: Or any witnesses that he could have contacted that he didn't contact?
Krupp: No.
4
Court: Has he investigated this case to your complete satisfaction?
Krupp: Yes.
Court: Do you believe you've been fully advised by your attorney as to all
aspects of your case, including your legal rights, and the possible
consequences of your plea?
Krupp: Yes.
Court: Do you believe your attorney has adequately, completely, and
effectively represented you in your defense to these charges?
Krupp: Yes.
The circuit court continued this line of questioning, walking Krupp through the jury trial
process and making sure that he understood that he was waiving this right. The questions
then culminated with the following question and response:
Court: Mr. Krupp, are you pleading guilty voluntarily and of your own free
will because you are guilty as charged in both counts?
Krupp: Yes.
Based on his testimony, the court found that Krupp's guilty plea was
made voluntarily and intelligently, with a full understanding of the charges
and the consequences of his plea, with an understanding of his rights
attending a jury trial and the effect of a plea of guilty on those rights. The
Court also finds there is a factual basis for the plea. The Court therefore
accepts the plea of guilty to the offenses with which he is charged.
The circuit court subsequently began the sentencing phase of the hearing. In that
phase, it again asked Krupp a series of questions regarding what rights he was waiving.
It asked him specifically about the waiver of his post-conviction rights:
Court: Mr. Krupp, do you understand that pursuant to Missouri Supreme
Court Rule 29.15 you have the right to file a motion in this court seeking to
vacate, set aside or correct the judgment of conviction or sentences imposed
5
if you claim that your conviction or the sentences imposed violate the
constitution and laws of this state or the constitution of the United States or
that this Court is without jurisdiction to impose the sentences or that the
sentences to be imposed are in excess of the maximum sentences
authorized by law? Did you understand that?
Krupp: Yes.
Court: And did you also understand that you were waiving your right to
claim that your attorney rendered ineffective assistance to you during the
trial?
Krupp: Yes.
The circuit court then allowed the State to call its first and only witness, who was
one of Krupp's victims. At the conclusion of this evidence, the Court sentenced Krupp to
three years on count 1 of felonious restraint, five years on count 3 of deviate sexual
assault, seven years on count 5 of deviate sexual assault, seven years on count 7 of
deviate sexual assault, seven years on count 9 of deviate sexual assault, one year on count
12 of sexual misconduct, three years on count 13 of felonious restraint, and three years on
count 14 of domestic assault. 2 The circuit court imposed the three three-year sentences
for counts 1, 13, and 14 to run concurrently along with the one-year jail sentence for
count 12. It imposed the three seven-year sentences for counts 5, 7, and 9 to run
concurrently with each other but to run consecutively with the sentences for counts 1, 12,
13, and 14. It imposed the five-year sentence for count 3 and ran it consecutively with
both the sentences for counts 1, 12, 13, and 14 and the sentences for counts 5, 7, and 9.
2
The jury acquitted Krupp on counts 2, 4, 6, 8, 10, and 11.
6
In total, Krupp was sentenced to 15 years in the Missouri Department of Corrections in
accord with the agreement.
Prior to concluding the hearing, the circuit court, for the third time, informed
Krupp of the rights to post-conviction relief that he was waiving and examined him
regarding the assistance of counsel that he received.
Court: When you made the decision to waive jury sentencing this morning,
was that your decision?
Krupp: Yes.
Court: And although you may have consulted with your attorney as to
what decision you were going to make, ultimately did you make it on your
own?
Krupp: Yes.
Court: And do you believe you were forced or made to make that decision
your will in any way?
Krupp: No.
The circuit court also asked Krupp if he understood the sentences that he was receiving
and if he was satisfied with his attorney's service.
Court: Regardless of whether you are satisfied with the sentences that you
have received from this Court in this case, are you satisfied with the legal
services that you have received from your attorney?
Krupp: Absolutely.
The court concluded by asking Krupp:
Court: Mr. Krupp, you [understand] that part of the agreement as to
sentencing was that you would waive your right to an appeal of the verdicts
of guilt that the jury returned during the trial. Is that correct?
Krupp: Yes.
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Court: And did you also understand that you would waive your right to any
claims of ineffective assistance of counsel by your attorney, either at the
trial or at the plea of guilty?
Krupp: Yes.
After the circuit court entered its judgment sentencing Krupp, he filed both a direct
appeal and a pro se motion for post-conviction relief. The court of appeals sustained the
State's motion to dismiss his direct appeal based on Krupp's waiver of his right to appeal.
Counsel was appointed to represent Krupp on his post-conviction relief motion, and an
amended motion for post-conviction relief pursuant to Rule 29.15 was filed on Krupp's
behalf. The amended motion requested that the motion court vacate, set aside, or correct
judgment and sentence and an evidentiary hearing. It alleged ineffective assistance of
Krupp's trial counsel for failing to offer testimony from Krupp's mother to impeach one
of the victims, failing to submit a lesser-included offense instruction, and for incorrectly
advising Krupp that if he waived his right to direct appeal he would only serve a few
months of the agreed-to 15-year sentence. 3
The motion court denied his request for an evidentiary hearing and denied his
claims of ineffective assistance of counsel on the merits. Krupp appealed to the court of
appeals. The State filed a motion to dismiss the appeal, which the court of appeals
indicated it was inclined to sustain based on the waiver of post-conviction relief, but
because of the issue of general interest and importance of whether the waiver of post-
3
The motion court found that the record clearly showed that Krupp "voluntarily waived his
right to appeal, among other rights, in exchange for the State's recommendation of a reduced
sentence and no additional charges."
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conviction relief pursuant to Rule 29.15 was permissible, transferred the case to this
Court.
Analysis
Waiver of Rule 29.15 Post-Conviction Relief
Krupp argues on appeal that his waiver of post-conviction rights was unknowing,
unintelligent, and involuntary due to defense counsel's potential conflict of interest in
advising him to waive his post-conviction rights. Krupp relies on Advisory Committee
opinion 126 for his position that in the absence of additional counsel without a potential
conflict of interest, the waiver of post-conviction remedies cannot be voluntary and
intelligent. 4
Krupp argues that defense counsel's potential conflict of interest alone is enough to
render his guilty plea unknowing, involuntary, and unintelligent. He contends defense
counsel's interest in avoiding a finding of ineffective assistance of counsel and in
protecting his reputation conflicted with Krupp's interest in challenging his convictions
based on ineffective assistance of counsel.
4
It is important to note that discipline could not be sought against defense counsel or the
assistant prosecuting attorney in this case for a potential violation of Advisory Committee
opinion 126 because Krupp's waiver of his post-conviction rights predated the issuance of this
opinion. Rule 5.30(a) states that "[t]he advisory committee may give formal opinions as to the
interpretations of Rules 4, 5, and 6" and provides a mechanism for judicial review of formal
opinions. Rule 5.30(b) provides that "any member of the bar who is substantially and
individually aggrieved by any formal opinion of the advisory committee may petition this Court
for review of the opinion." No attorneys have petitioned this Court to review Advisory
Committee opinion 126, nor has any discipline ever been sought against an attorney for violating
Advisory Committee opinion 126.
9
The circuit court confirmed that Krupp understood the waiver and that it
specifically included the waiver to bring a claim of ineffective assistance of counsel.
Moreover, Krupp was questioned by the circuit court extensively about whether defense
counsel fully apprised him of the consequences of his agreement, whether he understood
his agreement, and whether his decision to enter into the agreement was the result of his
own free will.
Krupp received a substantial benefit in exchange for his waiver of post-conviction
relief. The circuit court could have sentenced Krupp to as much as 50 years 5 in the
Missouri Department of Corrections. Instead, because of the agreement between Krupp
and the State, the assistant prosecuting attorney recommended a combined sentence of 15
years on all eight counts. The circuit court approved the agreement and sentenced Krupp
to serve a combined total of 15 years.
For the reasons set forth and explained in Cooper v. State, ___ S.W.3d ___ (Mo.
banc 2011) (No. SC91695, decided December 6, 2011), handed down contemporaneously
with this opinion, this Court holds that a waiver must be knowing, voluntary and
intelligent, but that allegations of only a potential conflict of interest based on defense
counsel's advice concerning the waiver of post-conviction relief pursuant to Rule 29.15,
5
Krupp was convicted of five class C felonies and one class A misdemeanor. Each C felony
carried a maximum sentence of seven years. Section 558.011(3), RSMo Supp. 2005. The one
class A misdemeanor carried a maximum sentence of one year. Section 558.011(5), RSMo
Supp. 2005. If Krupp was convicted of the two additional counts for which he had not yet been
tried, was given the maximum sentence on all eight counts, and the circuit court chose to run
each sentence consecutively, Krupp's total sentence would have been 50 years in the Missouri
Department of Corrections.
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including allegations of ineffective assistance of counsel, do not render an agreement
unknowing, involuntary, or unintelligent.
To prevail on a claim of ineffective assistance of counsel based on an actual
conflict of interest, it must be alleged and demonstrated that the waiver was not knowing,
voluntary and intelligent and that there was an actual conflict of interest that adversely
affected defense counsel's performance. Id. at 10. Furthermore, in order to plead and
prove an actual conflict of interest, "something must have been done by counsel or
something must have been forgone by counsel and lost to the defendant, which was
detrimental" to the defendant and advantageous to the other. Id. 6
Krupp's motion to vacate, set aside or correct judgment and sentence and request
for evidentiary hearing contains allegations that his defense counsel rendered ineffective
assistance during the course of his trial by failing to offer testimony from Krupp's mother
to impeach one of the victims, failing to submit a lesser-included offense instruction, and
for incorrectly advising Krupp that if he waived his right to a direct appeal, he would
only serve a few months of the agreed-to 15-year sentence. These allegations are clearly
refuted by the record. Furthermore, the record in this case clearly demonstrates that
Krupp was properly informed of his rights, and his waiver of those rights was made
knowingly, voluntarily, and intelligently.
6
To prevail, based on an allegation that his counsel had "a conflict of interest that violated his
Sixth, Eighth, and Fourteenth Amendment rights" and "the companion clauses of the Missouri
Constitution," movant "must demonstrate that an actual conflict of interest adversely affected
counsel's performance." State v. Roll, 942 S.W.2d 370, 377 (Mo. banc 1997).
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Conclusion
Because Krupp knowingly, voluntarily, and intelligently agreed to waive his postconviction rights after his trial, this Court vacates the motion court's judgment and
remands the case with instructions to dismiss Krupp's Rule 29.15 post-conviction motion.
___________________________
Zel M. Fischer, Judge
Teitelman, C.J., Russell, Breckenridge, Stith
and Price, JJ., and Martin, Sp.J., concur.
Draper, J., not participating.
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