The Unappealing Nature of Guilty Plea Agreements: Johnson's

Missouri Law Review Missouri Law Review

Volume 85

Issue 3

Summer 2020

Article 8

Summer 2020

The Unappealing Nature of Guilty Plea Agreements: Johnson’s The Unappealing Nature of Guilty Plea Agreements: Johnson’s

Restrictions on Appeals of Intellectual Disabilities Restrictions on Appeals of Intellectual Disabilities

Alexander M. Brown

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Alexander M. Brown,

The Unappealing Nature of Guilty Plea Agreements: Johnson’s Restrictions on

Appeals of Intellectual Disabilities

, 85 MO. L. REV. (2020)

Available at: https://scholarship.law.missouri.edu/mlr/vol85/iss3/8

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NOTE

The Unappealing Nature of Guilty Plea

Agreements: Johnson’s Restrictions on

Appeals of Intellectual Disabilities

Johnson v. State, 580 S.W.3d 895 (Mo. 2019) (en banc).

Alexander M. Brown

I. INTRODUCTION

In 2008, Ronald Johnson was charged with the murder of Luke Meiners,

a St. Louis attorney.

On the advice of his appointed defense counsel, Johnson

pleaded guilty to the charge of first-degree murder to avoid the death penalty.

Johnson was ineligible, however, for the death penalty because he was

intellectually disabled.

After his conviction, Johnson appealed for post-

conviction relief.

Johnson received a mental evaluation, which concluded he

was competent to stand trial.

Thus, the court upheld his guilty plea.

In an

appeal to the Supreme Court of Missouri, Johnson argued that his conviction

should be set aside because he received ineffective assistance of counsel and

was coerced into accepting his plea.

The Supreme Court of Missouri avoided

the merits of Johnson’s appeal because of its technical deficiencies.

The

court further confused the established standards for competency to stand trial

and intellectual disability in a way that will affect the rights of intellectually

disabled individuals.

Part II of this Note examines the pertinent facts and holding of the case.

Part III analyzes the legal standards for competency to stand trial, the death

penalty in relation to intellectual disability, and claims of ineffective

B.A., William Woods University Fulton-Missouri, 2017; J.D. Candidate, University

of Missouri School of Law, 2021; Lead Article Editor, Missouri Law Review.

. Johnson v. State, 580 S.W.3d 895, 898 (Mo. 2019) (en banc).

. Id.

. Id. at 899.

. Id.

. Id. at 899–900.

. Id.

. Id. at 908.

. Id. at 914 (Stith, J., dissenting).

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804 MISSOURI LAW REVIEW [Vol. 85

assistance of counsel. Finally, Part IV considers how the court’s rulings in

this case caused injustice to Ronald Johnson and how it will affect the plea-

bargaining process for individuals with intellectual disabilities in Missouri

moving forward.

II. FACTS AND HOLDING

Ronald Johnson was diagnosed with mild mental retardation at ten years

old when he was found to have an Intelligence Quotient (“IQ”) of fifty-three.

For the rest of his school career, he was in special education classes until he

dropped out in the tenth grade.

Additionally, Johnson suffered from a

seizure disorder and developed schizophrenia, which caused hallucinations

for which he was repeatedly hospitalized and placed on disability.

Johnson

began a long-term romantic relationship with a man named Cleophus King in

his late teens.

In 2008, Johnson and King were charged with murder in St.

Louis, Missouri.

Johnson and his accomplice were recorded on audio killing

a local attorney, a friend of Johnson, and then robbing the victim.

The State

offered not to pursue the death penalty if Johnson would agree to plead guilty

to the murder.

Johnson’s counsel advised him to accept the State’s offer

because the evidence against him was strong, and the violent nature of the

crime would have been damaging at trial.

Johnson accepted the plea

agreement.

At the plea hearing, Johnson affirmed that he had discussed the

case with his attorney, understood the charges, and desired to plead guilty.

Johnson further affirmed that he did not have any mental disability that would

affect his participation in his defense or his understanding of the proceedings

. Appellant’s Substitute Statement, Brief and Argument at 20, Johnson v.

State, 580 S.W.3d 895 (Mo. 2019) (en banc) (No. SC97330).

. Appellant’s Substitute Statement, supra note 10 at 5.

. Appellant’s Substitute Statement, supra note 10 at 34.

. Appellant’s Substitute Statement, supra note 10 at 5.

. Johnson, 580 S.W.3d at 895.

. Id. The attorney, Luke Meiners, had befriended Johnson, age 25. Johnson

and his lover/accomplice Cleophus King conspired to rob Meiners. On the night of

the murder, Johnson asked Meiners for a ride to King’s house so he could do laundry.

Once they arrived, Johnson and King attempted to rob Meiners, who resisted. Over

the course of a fourteen-minute struggle, Johnson and King beat, stabbed, and

ultimately strangled Meiners to death. The two then stole cash and electronics from

Meiners before using his Jeep to dump his body. Jennifer Mann, Man who admitted

killing St. Louis County Lawyer gets life without parole, ST. LOUIS POST DISPATCH

(March 22, 2013), https://www.stltoday.com/news/local/crime-and-courts/man-who-

admitted-killing-st-louis-county-lawyer-gets-life/article_0f13770d-442c-5719-ab36-

9b4530d1152a.html [https://perma.cc/LH2S-D6TK].

. Johnson, 580 S.W.3d at 898.

. The State was in possession of a recording of the murder. Id.

. Id.

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and that he understood the guilty plea would forfeit any rights to trial.

After

these affirmations, the State provided this factual basis to support Johnson’s

guilty plea:

Judge, had this matter gone to trial, the state would have proven

beyond a reasonable doubt, with readily available witnesses and

competent evidence that between March 6, 2008, and March 8, 2008,

here in the City of St. Louis, specifically at the home of Cleophus King

at 5726 Waterman, [Johnson], acting with Cleophus King, knowingly

caused the death of [Victim], a friend and acquaintance of [Johnson],

that they caused [Victim’s] death by strangling, stabbing, and beating

him, and that they used a knife, multiple knives, weapons, and an

extension cord on [Victim]. In the course of that, that [Johnson], acting

with Cleophus King, stole and robbed [Victim] of his wallet, keys to

his jeep, and that they subsequently went and took those items and the

victim’s jeep and used the victim’s credit cards contained within his

wallet to purchase items. And that after killing [Victim] that night, they

took his body, wrapped him up and dumped him over in Illinois.

Johnson affirmed the facts as recited by the State and his satisfaction

with his counsel’s performance and denied that any threats were made to

induce his guilty plea.

The circuit court accepted Johnson’s guilty plea and

imposed a life sentence without the possibility of parole, as recommended in

the plea agreement.

Johnson then filed a motion for post-conviction relief and raised three

issues at his post-conviction relief hearing.

First, Johnson claimed that he

was illegally coerced into accepting his plea deal because the State threatened

him with death, despite the fact that his intellectual disability precluded him

from receiving that sentence.

Second, Johnson alleged he was not

competent to plead guilty and will never be competent.

Third, Johnson

argued that his counsel was ineffective because his attorney failed to request

an independent competency evaluation to which he was entitled.

Johnson

introduced evidence regarding his low IQ and the “threats”

of the death

penalty made by his plea.

Additionally, Johnson blamed his counsel for failing to challenge the

State’s competency evaluation by not seeking an independent evaluation.

. Id.

. Id. at 899.

. Id.

. Id. Johnson was threatened by the possibility of the death penalty as a

sentence. Id.

. Id.

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806 MISSOURI LAW REVIEW [Vol. 85

Johnson’s counsel testified that, although he realized Johnson was “slow,” he

did not know that Johnson had an intellectual disability.

Johnson’s attorney

also denied threatening or encouraging Johnson to accept the plea

agreement.

Rather, Johnson’s plea counsel testified that Johnson made his

decision to accept the plea agreement after discussing it with his family.

The

court rejected Johnson’s allegations that he was threatened by his plea counsel

and overruled Johnson’s motion for post-conviction relief.

Johnson

appealed, and the Supreme Court of Missouri ordered transfer.

Johnson appealed his sentence on the grounds that he was coerced into

accepting the State’s plea agreement,

he was not competent to plead guilty,

and his plea counsel was ineffective for failing to challenge the State’s

competency evaluation and failing to seek a second competency evaluation.

The majority opinion, written by Judge W. Brent Powell, agreed with the trial

court that (1) Johnson was not coerced into accepting the State’s plea

agreement, (2) Johnson was competent to stand trial, and (3) Johnson’s plea

counsel was not ineffective for failing to request a second competency

evaluation.

Consequently, the judgment of the trial court was affirmed.

The dissent, written by Judge Laura Denver Stith, found that (1) Johnson

was coerced, (2) even if competent to stand trial, he was not eligible for the

death penalty, and (3) his plea counsel was ineffective.

In particular, the

dissent found that the evidence presented to the trial court showed that

Johnson was intellectually disabled, that this intellectual disability made him

incompetent to accept a plea agreement, and that his counsel was ineffective

for failing to investigate the extent of his intellectual disability.

Judge Stith

would have reversed the judgment of the motion court and either remanded

the case for trial or held an evidentiary hearing to determine the issue of

intellectual disability.

. Id. at 900.

. Id.

. Id. The transfer was ordered pursuant to MO. R. CIV. P. 83.04. Id.

. Johnson, 580 S.W.3d at 900.

. Id. at 904.

. Id.

. Id. at 902, 904. Because this was an appeal from a Mo. Sup. Ct. R. 24.035

motion for postconviction relief from a guilty plea decided by a motion court as the

factfinder, the Court reviewed the appeal on a “clearly erroneous” standard. Id. at 900

(citing Latham v. State, 554 S.W.3d 397, 401 (Mo. 2018) (en banc)).

. Johnson, 580 S.W.3d at 908.

. Id.

. Id. at 914–21, 923–24.

. Id. at 928.

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III. LEGAL BACKGROUND

The issues surrounding intellectual disability, competency, the death

penalty, and ineffective assistance of counsel are complex. When these

problems are combined with a plea agreement, the analysis becomes even

more complicated. To understand how the law has developed around each of

these issues, it is important to examine them individually. First, this Part

examines Missouri competency law and explains its development in state and

federal law. Next, this Part examines the Supreme Court of the United States

cases and Missouri cases addressing death penalty issues in similar contexts.

Finally, this Part examines the law regarding claims of ineffective assistance

of counsel.

A. Competency to Stand Trial

To understand the history of the death penalty and the state of the law it

is first essential to understand the role competency plays in determining the

efficacy of a death sentence. The Supreme Court of Missouri has defined

competency to stand trial as “[the] defendant [having] the sufficient ability to

consult with his lawyer with a reasonable degree of rational understanding

and having a rational as well as factual understanding of the proceedings

against him.”

The standards for competency to stand trial are codified by

statute.

This statute proscribes conviction or sentencing of any individual

who does not have the capacity to understand the trial process or adequately

assist in his or her defense.

When a judge has reason to believe that a

defendant lacks capacity, or a motion is filed by either party, the court is

required to order an examination to determine the issue.

Failure of a judge

to order an examination to determine competency has been held by the

Supreme Court of the United States to be a violation of a defendant’s

constitutional right to a fair trial.

In Missouri, if neither party requests a

second examination, the court may make a finding of competency based on

the report of the examiner or impanel a jury of six to make a finding of fact

on the issue.

Upon a finding that an individual is incompetent to stand trial,

the court is required to suspend the criminal proceedings and commit the

individual to the Department of Mental Health.

. State v. Baumruk, 85 S.W.3d 644, 648 (Mo. 2002) (en banc).

. MO. REV. STAT. § 552.020.1 (2019).

. Id.

. MO. REV. STAT. § 552.020.2 (2019).

. Drope v. Missouri, 420 U.S. 162, 172 (1975) (citing Pate v. Robinson, 383

U.S. 375 (1966)).

. MO. REV. STAT. § 552.020.7 (2019).

. MO. REV. STAT. § 552.020.9 (2019).

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In the event that incompetency is established before a plea, the

incompetent individual is also found to be incompetent to plead guilty.

defendant is presumed to be competent, and the burden of showing

incompetency is on the defendant.

A presumption of incompetency cannot

be created, even if some evidence exists that a defendant suffers from an

intellectual disability.

Although defense counsel is allowed to request a

second examination to determine competency, counsel is not ineffective for

deciding not to request a second evaluation.

This presumption of

competency has been upheld by the Supreme Court of the United States in

multiple decisions.

The only exception to this general rule regarding

competency is if a mental evaluation report appears deficient or a non-

reported mental defect becomes apparent to defense counsel. In that case,

counsel is compelled to seek a further evaluation.

Rather, sufficient

evidence of an intellectual disability is only enough to compel defense counsel

to seek a second mental evaluation.

A mental defect that would trigger this

exception is evidence of an intellectual disability.

The applicable Missouri statute gives a three-prong test to determine

whether an individual suffers from an intellectual disability.

The individual

must display: (1) a subaverage IQ; (2) extensive deficits in adaptive behaviors

. Hubbard v. State, 31 S.W.3d 25 (Mo. Ct. App. 2000) (holding that the trial

court’s findings regarding competency of defendant to plead guilty were not clearly

erroneous because they were based on a sufficient medical report).

. MO. REV. STAT. § 552.020.8 (2019).

. Baird v. State, 906 S.W.2d 746, 750 (Mo. Ct. App. 1995).

. Goodwin v. State, 191 S.W.3d 20, 30 n.6 (Mo. 2006) (en banc); see also

Bass v. State, 950 S.W.2d 940, 947 (Mo. Ct. App. 1997) (reviewing multiple cases

with this holding).

. Medina v. California, 505 U.S. 437, 448 (1992) (“If a defendant is

incompetent, due process considerations require suspension of the criminal trial until

such time, if any, that the defendant regains the capacity to participate in his defense

and understand the proceedings against him.”); Dusky v. United States, 362 U.S. 402,

480 (1960) (per curiam).

. Gooden v. State, 846 S.W.2d 214, 218 (Mo. Ct. App. 1993) (citing

Sidebottom v. State, 781 S.W.2d 791, 797 (Mo. 1989) (en banc)) (“Absent a perceived

shortcoming in a mental evaluation report or a manifestation of a mental disease or

defect not identified by a prior report, an attorney representing a defendant in a

criminal case is not compelled to seek further evaluation.”).

. Id.

. MO. REV. STAT. § 565.030.1 (2019).

. MO. REV. STAT. § 565.030.6 (2019) (stating “a condition involving

substantial limitations in general functioning characterized by significantly

subaverage intellectual functioning with continual extensive related deficits and

limitations in two or more adaptive behaviors … which conditions are manifested and

documented before eighteen years of age.”). State v. Johnson, 244 S.W.3d 144, 153

(Mo. 2008) (en banc) (“According to the Diagnostic and Statistical Manual of Mental

Disorders IV (DSM—IV), a person with an I.Q. of 70 or lower has significantly

subaverage intellectual functioning, but it is possible for an individual with an I.Q.

between 70 and 75 to be diagnosed as mentally retarded ….”).

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that stem from his or her subaverage IQ; and (3) both of the prior prongs must

have manifested and been documented before the individual reached eighteen

years of age.

The Supreme Court of Missouri has adopted these standards

for determining intellectual disability from the medical community.

In Goodwin v. State, the Supreme Court of Missouri addressed which

types of evidence are sufficient to show that an individual suffers from an

intellectual disability.

The court examined the language of the applicable

statute, which requires “significantly subaverage intellectual functioning” as

that term is defined by the Diagnostic and Statistical Manual of Mental

Disorders (“DSM-IV”).

Analyzing the DSM-IV, the court found that IQ

tests are the standard procedure for determining whether an individual suffers

from an intellectual disability.

Using this standard, the Goodwin court found

that the defendant did not meet the standard for “intellectually disabled,”

although his IQ was in the mid-seventies to eighties.

Because Goodwin was

not “intellectually disabled,” the court did not consider the second prong of

the statute’s test.

While the Goodwin court found the defendant’s IQ score too high to be

considered intellectually disabled, the court has found slightly lower scores to

meet the standard.

Although evidence establishing an intellectual disability

creates a duty on the part of defense counsel to move for a second mental

evaluation, intellectual disabilities do not automatically make a defendant

. Johnson, 244 S.W.3d at 153.

. See Goodwin v. State, 191 S.W.3d 20, 30–31 (Mo. 2006) (en banc).

. Id. at 26.

. MO. REV. STAT. § 565.030.6; Goodwin, 191 S.W.3d at 30 (Mo. 2006) (en

banc). DSM-IV is the abbreviation for the Diagnostic and Statistical Manual IV of

the American Psychiatric Association. This manual contains the standards for

defining psychological disorders in the United States medical community and was

updated in 2013 to the DSM-V. CENTER FOR BEHAVIORAL HEALTH STATISTICS AND

QUALITY, 2014 National Survey on Drug Use and Health: DSM-5 Changes:

Implications for Child Serious Emotional Disturbance, June 2016,

https://www.ncbi.nlm.nih.gov/books/NBK519708/pdf/Bookshelf_NBK519708.pdf

[https://perma.cc/ZW9G-L9KX].

. Goodwin, 191 S.W.3d at 30 (Mo. 2006) (en banc).

. Id. at 31.

. MO. REV. STAT. § 565.030.6; Goodwin, 191 S.W.3d at 31 (Mo. 2006) (en

banc) (“Without evidence that Goodwin’s intellectual functioning is ‘significantly

subaverage,’ there is no need to move on to a discussion of his adaptive behaviors.”);

but see Goodwin, 191 S.W.3d at 31 n.7 (recognizing that IQ test scores are not applied

mechanically because IQ scores are only one part of the statutory definition).

. W.J.K. v. K.S.G. (In the Interest of T.T.G.), 530 S.W.3d 489, 496 (Mo. 2017)

(en banc) (finding an IQ score of 65 sufficient to indicate an intellectual disability);

State ex rel. Lyons v. Lombardi, 303 S.W.3d 523, 526 (Mo. 2010) (en banc) (holding

an IQ between 65 and 70 to establish an intellectual disability).

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810 MISSOURI LAW REVIEW [Vol. 85

incompetent to stand trial.

However, a finding of intellectual disability or

defect does make an individual ineligible for the death penalty.

B. Death Penalty

Application of the death penalty to intellectually disabled individuals has

been declared unconstitutional since the Supreme Court of the United States’s

decision in Atkins v. Virginia.

The Court came to that decision by

considering whether the death penalty violated the Eighth Amendment’s

prohibition of cruel and unusual punishment.

The ruling was codified in

Missouri Revised Statute Section 565.030.1, which states, “Where murder in

the first degree is charged but not submitted or where the state waives the

death penalty, the submission to the trier and all subsequent proceedings in

the case shall proceed as in all other criminal cases.”

The statute further

states that the trier of fact must determine by a preponderance of the evidence

whether the defendant is intellectually disabled, with the defendant carrying

the burden of proof.

Importantly, these rules apply only during the trial

process, and the jury makes a finding of intellectual of disability under these

rules.

The Supreme Court of Missouri has ruled that prior to a trial for

murder, the court is not required to determine whether the defendant has an

intellectual disability unless there is a question as to the defendant’s

competence to stand trial, even when the defendant is facing the possibility of

the death penalty.

. State v. Hunter, 840 S.W.2d 850, 863 (Mo. 1992) (en banc) (“The standard

for determining a defendant’s competence to plead guilty is essentially the same as

that for determining if a defendant is competent to proceed to trial.”); see also Wilson

v. State, 813 S.W.2d 833, 835 (Mo. banc 1991) (“Some degree of intellectual disability

does not automatically render a defendant incapable of knowingly and voluntarily

pleading guilty.”); Bryant v. State, 563 S.W.2d 37, 46 (Mo. 1978) (holding that a

defendant can be found competent to stand trial while suffering from a mental disease

or defect); Pulliam v. State, 480 S.W.2d 896, 904 (Mo. 1972); Evans v. State, 467

S.W.2d 920, 923 (Mo. 1971); State v. Lowe, 442 S.W.2d 525, 529–30 (Mo. 1969).

. Atkins v. Virginia, 536 U.S. 304, 318 (2002).

. Id. at 321 (holding that the death penalty is excessive punishment for

individuals with intellectual disabilities and the U.S. Constitution “places a

substantive restriction on a state’s power to take the life” of an intellectually disabled

offender).

. Id. at 352.

. MO. REV. STAT. § 565.030.1.

. MO. REV. STAT. § 565.030.4(1).

. MO. REV. STAT. § 565.030.1.

. Davis v. State, 517 S.W.2d 97, 104 (Mo. 1974) (en banc). Although this

decision occurred before the Supreme Court of the United States declared the death

penalty unconstitutional for individuals with intellectual disabilities, subsequent

appellate decisions have upheld it. See Cole v. State, 218 S.W.3d 551 (Mo. Ct. App.

2007).

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Additionally, the Supreme Court of the United States has found that the

threat of the death penalty during plea agreements does not violate any

constitutional rights of the defendant because it is not coercive.

The

Supreme Court of Missouri adopted and expanded upon this ruling.

The

court has repeatedly found that to prove a defendant was coerced into pleading

guilty, he or she must show that his or her counsel gave ineffective advice or

misled him or her as to the nature of the case.

Thus, in determining whether

a defendant has been coerced into pleading guilty to a crime, it is essential to

analyze the elements of a claim of ineffective assistance of counsel.

C. Ineffective Assistance of Counsel

In general, to prevail on a claim of ineffective assistance of counsel, a

defendant must show “(1) counsel’s performance did not conform to the

degree of skill, care[,] and diligence of a reasonably competent attorney and[,]

(2) he was thereby prejudiced.”

If the movant is unable to prove one element

of the test then the court need not consider the other element.

While this

general rule remains the same for claims of ineffective assistance of counsel

that arise from a guilty plea,

the Supreme Court of Missouri has changed the

focus of the factual analysis.

When an ineffective assistance of counsel

claim arises following a guilty plea, the defendant must show that, but for

counsel’s actions, he or she would have insisted on going to trial and refused

to plead guilty.

. North Carolina v. Alford, 400 U.S. 25, 39 (1970) (holding the mere fact that

appellee would not have pleaded guilty, except for the opportunity to limit the possible

penalty, did not show that the plea had not resulted from a free and rational choice –

especially where appellee was represented by competent counsel who advised the plea

would be to appellee’s advantage due to the great weight of the evidence against him);

see also Brady v. United States, 397 U.S. 742, 755 (1970); Jackson v. State, 585

S.W.2d 495, 497 n.2 (Mo. 1979) (en banc) (“a threatening [potential punishment] is

insufficient to render [a] plea involuntary.”); Rice v. State, 585 S.W.2d 488, 493 (Mo.

1979) (en banc); Burks v. State, 490 S.W.2d 34, 35 (Mo. 1973).

. Beeman v. State, 502 S.W.2d 254, 256 (Mo. 1973); Richardson v. State, 470

S.W. 2d 479, 484 (Mo. 1971); Wilson v. State, 459 S.W.2d 298, 301 (Mo. 1970).

. Beeman, 502 S.W.2d at 256; Richardson, 470 S.W. 2d at 484; Wilson, 459

S.W.2d at 301.

. Webb v. State, 334 S.W.3d 126, 128 (Mo. 2011) (en banc).

. Johnson v. State, 5 S.W.3d 588, 590 (Mo. Ct. App. 1999).

. Boyd v. State, 205 S.W.3d 334, 338 (Mo. Ct. App. 2006) (quoting Cupp v.

State, 935 S.W.2d 367, 368 (Mo. Ct. App. 1996)) (“To prevail on a claim of ineffective

assistance of counsel where a movant has entered a plea of guilty, a ‘movant must

show his counsel’s representation fell below an objective standard of reasonableness

and that, as a result, he was prejudiced.’”).

. Cupp, 935 S.W.2d 367, 368 (Mo. Ct. App. 1996).

. Id.; Cooper v. State, 356 S.W.3d 148, 153 (Mo. 2011) (en banc).

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In Cooper v. State, the defendant’s counsel advised him to plead guilty

to charges of theft totaling over $500.

During the plea hearing, the defendant

repeatedly stated he was making the plea voluntarily and of his own free

will.

After this hearing, the defendant waived his right for post-conviction

relief in exchange for a reduced sentence of probation.

When the defendant

later violated the terms of his probation, he brought an appeal claiming

ineffective assistance of counsel based on his attorney’s recommendation to

plead guilty.

In analyzing his claim, the court looked first to the general rule

for claims of ineffective assistance of counsel.

The court held that, because

the claim arose from a guilty plea, “any claim of ineffective assistance of

counsel is immaterial to the extent that it impinges upon the voluntariness and

knowledge with which the plea was made.”

Based on this analysis, and the

defendant’s statement in his plea hearing that he was making the plea

voluntarily, the court rejected his claim of ineffective assistance of counsel.

After Cooper, Missouri courts must focus on the defendant’s knowledge

of the plea terms and the voluntariness of the plea.

Additionally, Cooper

indicates that evidence of knowledge and voluntariness can be found from the

statements of the defendant during the plea hearing.

While this standard of

analysis is straightforward in cases involving most defendants, the knowledge

portion of the analysis becomes more complex when the defendant suffers

from a mental disease or defect.

An attorney can be found ineffective for

failing to investigate an alleged mental disease or defect if there is evidence

tending to show that the defendant suffered from a mental incapacity at the

time of his or her plea.

The Supreme Court of the United States has held that a defendant’s

Fourteenth Amendment due process rights are violated when an attorney fails

to investigate an alleged mental defect or disease.

In Strickland v.

Washington, the Court stated that “[c]ounsel has a duty to make reasonable

investigations [of possible mitigating evidence] or to make a reasonable

decision that [such] investigations [are] unnecessary,”

and the

. Cooper, 356 S.W.3d at 150.

. Id. at 150–51.

. Id. at 152.

. Id.

. Id. at 153 (citing State v. Roll, 942 S.W.2d 370, 375 (Mo. 1997) (en banc));

see also Matthews v. State, 501 S.W.2d 44, 47 (Mo. 1973); Barylski v. State, 473

S.W.2d 399, 402 (Mo. 1971) (per curiam).

. Cooper, 356 S.W.3d at 157.

. Id. (citing Roll, 942 S.W.2d at 375); see also Matthews, 501 S.W.2d at 47;

Barylski, 473 S.W.2d at 402.

. Cooper, 356 S.W.3d at 155.

. See Roll, 942 S.W.2d at 376.

. Id.

. Strickland v. Washington, 466 U.S. 668, 680 (1984).

. Id.

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reasonableness of the investigation is “based on whether defense counsel’s

performance conformed to the degree of skill, care, and diligence of a

reasonably competent attorney.”

Additionally, the Supreme Court of the

United States has held that defendants have a Sixth Amendment right to have

effective counsel in plea negotiations.

Missouri appellate courts have held that a defendant’s counsel is not

ineffective for advising a defendant to take a plea agreement to avoid the death

penalty, even when he or she could be ineligible for the death penalty, unless

there is evidence showing that this was not a “reasonable strategy.”

Appellate courts reviewing a claim that defense counsel or a trial court erred

in failing to move for a mental evaluation prior to a guilty plea are governed

by Missouri Supreme Court Rule 24.035.

This rule sets the standard of

review for ineffective assistance of counsel claims as clearly erroneous.

100

This means the appellate court must accept the lower court’s finding of facts

unless there is clear evidence of a mistake.

101

. Johnson, 580 S.W.3d at 913 (citing Strickland, 466 U.S. at 687–88).

. Missouri v. Frye, 566 U.S. 134, 145 (2012) (holding that failure to inform a

defendant of a plea offer constitutes ineffective assistance of counsel); see Padilla v.

Kentucky, 559 U.S. 356, 374 (2010) (holding that failure to inform a defendant of the

potential immigration consequences of a plea agreement constitutes ineffective

assistance of counsel).

. Thurman v. State, 424 S.W.3d 456, 461 (Mo. Ct. App. 2014) (holding

defendant’s counsel was not ineffective because counsel’s advice to plead guilty to

remove the death sentence as a possible punishment was a reasonable strategy). Even

if defendant obtained a pre-trial determination that he suffered from mental retardation

under Mo. Rev. Stat. § 565.030, life imprisonment without probation or parole was

the only sentence available under Mo. Rev. Stat. § 565.020. Id. See also Baird v.

State, 906 S.W.2d 746, 751 (Mo. Ct. App. 1995) (holding counsel was not ineffective

for failure to request another mental examination to determine mental competence

because counsel had nothing to put him on notice that defendant was mentally

incompetent).

. MO. R. CRIM. P. 24.035(a) (“A person convicted of a felony on a plea of

guilty claiming that the conviction or sentence imposed violates the constitution and

laws of this state or the constitution of the United States, including claims of

ineffective assistance of trial and appellate counsel, that the court imposing the

sentence was without jurisdiction to do so, or that the sentence imposed was in excess

of the maximum sentence authorized by law may seek relief in the sentencing court

pursuant to the provisions of this Rule 24.035.”).

100

. MO. R. CRIM. P. 24.035(k).

101

. In addition to Rule 24.035, appellate review in Missouri is covered by Rule

84.04. This rule creates specific requirements for how an appeal should be structured.

MO. R. CIV. P. 84.04(d)–(e). Typically, if an issue is incorrectly raised by the parties

according the procedural requirements of this rule, it will not be considered by a

Missouri appellate court.

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IV. INSTANT DECISION

In Johnson v. State, the Supreme Court of Missouri affirmed the lower

court’s ruling and held in favor of the State by one vote.

102

It was a hotly

contested four-to-five decision. Judges Wilson, Russell, and Fischer joined

Judge Powell’s majority opinion, with Judge Stith dissenting, joined by Chief

Justice Draper and Judge Breckenridge.

103

This Part analyzes the decision in

Johnson in two main parts: Subpart A reviews the majority and Subpart B

examines the dissent.

A. Majority

On appeal to the Supreme Court of Missouri, Johnson alleged that: (1)

his counsel threatened him to plead guilty by telling him he would receive the

death penalty even though he was ineligible; (2) he was incompetent to plead

guilty; and (3) his counsel was ineffective for failing to request a second

competency evaluation.

104

Because Johnson’s appeal arose out of a motion

for post-conviction relief, the court limited its review to a “clearly erroneous”

standard.

105

In examining the first issue of whether Johnson was coerced into

accepting the State’s plea agreement, the majority’s analysis focused on the

standards for guilty plea coercion announced by the court in McMahon v. State

and Drew v. State.

106

In McMahon, the court held that a guilty plea is not

coerced if it is “intelligently and voluntarily made.”

107

Because Johnson

claimed that his attorney coerced him through the use of threats, the court

found the standard from Drew applicable.

108

The majority found that the

record does not support any allegations that Johnson was threatened.

109

Specifically, the majority focused on the fact that Johnson felt threatened

by his attorney’s statement that he would face the death penalty if he were to

go to trial.

110

While Johnson characterized his counsel’s explanation of the

death penalty as threatening, counsel testified that he had simply explained

the possibility to Johnson.

111

The majority deferred to the trial court’s finding

102

. Johnson v. State, 580 S.W.3d 895 (Mo. 2019) (en banc).

103

. Id. at 908.

104

. Id. at 899.

105

. Id. at 900.

106

. Id. at 901 (citing Drew v. State, 436 S.W.2d 727, 729 (Mo. 1969));

McMahon v. State, 569 S.W.2d 753, 758 (Mo. 1978) (en banc).

107

. McMahon, 569 S.W.2d at 758.

108

. Johnson, 580 S.W.3d at 901 (quoting Drew, 436 S.W.2d at 729) (explaining

that Johnson must show he was “induced to plead guilty by fraud or mistake, by

misapprehension, fear, persuasion, or the holding out of hopes which prove to be false

or ill founded.”).

109

. Id.

110

. Id. at 902.

111

. Id. at 924–25.

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that counsel’s testimony was credible.

112

Citing multiple prior decisions, the

court found that informing a defendant of the possible punishments he might

face does not amount to coercion.

113

Based on this analysis, the court held

that Johnson’s trial counsel had not coerced him into pleading guilty through

the use of a threat.

114

Next, the court discussed Johnson’s second argument that his counsel

advised him he was eligible for the death penalty when he was, in fact,

ineligible.

115

The majority acknowledged that had Johnson been found to be

intellectually disabled, he would have been ineligible for the death penalty

under the Supreme Court of the United States’s ruling in Atkins.

116

Judge

Powell, however, pointed out that a finding of intellectual disability is not

automatic, but rather, must be determined by the factfinder, with the burden

of proof resting on the defendant.

117

Thus, because no factfinder had yet

found Johnson to be intellectually disabled, his counsel was required to inform

him of the possibility of the death penalty.

118

Moreover, because the State

was not required to waive the death penalty, death was still “on the table” until

Johnson entered a guilty plea.

119

The majority stressed that despite evidence

that Johnson may have been intellectually disabled, the jury may have rejected

such a finding.

120

Although the court concluded that there was no clear error,

the majority did find that “Johnson’s counsel could have more fully

investigated Johnson’s intellectual capacity and advised Johnson of this

defense, any additional investigation or advice by counsel bears no direct

correlation to Johnson’s decision to accept the State’s offer and plead

guilty.”

121

After settling the issue of intellectual disability, the majority next

addressed Johnson’s argument that he was incompetent to plead guilty.

122

The

majority first considered the evidence presented by Johnson at his post-

conviction motion hearing that “he had an IQ of 63,” and “while . . . capable

of conversing with his attorney, he did not possess the intellectual capacity to

meaningfully assist his attorney in his defense.”

123

However, the court again

deferred to the testimony of Johnson’s plea counsel, who stated that

112

. Id. at 901.

113

. Id. (citing State ex rel. Simmons v. Roper, 112 S.W.3d 397, 406 (Mo. 2003)

(en banc)); see also Jackson, 585 S.W.2d at 497 n.2; Rice, 585 S.W.2d at 493; Burks,

490 S.W.2d at 35.

114

. Johnson, 580 S.W.3d at 901.

115

. Id. at 902.

116

. Id. (citing Atkins v. Virginia, 536 U.S. 304, 321, (2002)).

117

. Id. at 902–03 (citing State v. Johnson, 244 S.W.3d 144, 150 (Mo. 2008) (en

banc)).

118

. Id. at 903.

119

. Id.

120

. Id. at 907.

121

. Id. at 903.

122

. Id. at 904.

123

. Id.

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“[Johnson] was able to repeat and rephrase information . . . demonstrating

[that he] understood the nature of the proceedings and could assist in his

defense.”

124

In addition to this, the majority pointed out that a competency

exam conducted pursuant to Section 552.020 concluded Johnson was

competent to stand trial.

125

The majority found the weight of the evidence

indicated that Johnson was competent to enter a guilty plea.

126

Next, the majority turned to the last issue Johnson raised on appeal,

whether his plea counsel was ineffective for declining to seek a second

competency evaluation.

127

Citing the relevant statute, the majority reiterated

that determining competency is a preliminary question for the judge to

address.

128

The majority found that, although a second evaluation of

competency is allowed, defense counsel is not ineffective for failing to request

a second exam when there are no other extenuating factors.

129

In Johnson’s

case, there had been a competency evaluation performed pursuant to Section

552.020 in which Doctor Armour “. . . concluded Johnson did not suffer any

mental disease or defect and that he was not intellectually disabled to an extent

that limited his ability to understand the proceedings against him or to assist

in his own defense.”

130

In addition to this, at his post-conviction motion

hearing, Johnson’s plea counsel had testified that he was capable of

participating in his defense.

131

The majority held these facts show there were

no extenuating circumstances that would have required Johnson’s plea

counsel to seek a second competency evaluation.

132

The majority affirmed

the denial of post-conviction relief for three reasons. First, the

motion court found that Johnson’s plea counsel was not ineffective

for failing to request a second competency examination. Second,

Johnson’s plea counsel believed he was competent to stand trial.

Third, an experienced psychologist evaluated Johnson and found

him to be competent..

133

124

. Id.

125

. Id.

126

. Id.

127

. Id.

128

. Id. (citing MO. REV. STAT. § 552.020 (2019)).

129

. Id. at 905.

130

. Id. (emphasis added). In this instance, the court’s assertion that Dr. Armour

found Johnson not to be intellectually disabled when, in the prior section of the

opinion, the court explicitly stated that intellectual disability is a question that is to be

determined by the fact finder, points to a confusion of the standards for competence

and intellectual disability. See id. at 903, 905. Furthermore, Judge Stith’s dissent

pointed out that Dr. Armour did find that Johnson suffered from “mild mental

retardation” in his report. Id. at 922.

131

. Id. at 905.

132

. Id.

133

. Id. at 905–06.

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B. Dissent

In her dissent, Judge Stith asserted that the majority opinion failed to

analyze the merits of the case because it did not address all the issues raised

in Johnson’s appeal.

134

In its first point of analysis, the dissent argued that

Johnson successfully preserved the issue that his counsel failed to inform him

of an intellectual disability defense.

135

The dissent found that the arguments

raised by Johnson in the post-conviction relief hearing were sufficient to

preserve the argument for appellate review.

136

Thus, the dissent established

that Johnson had preserved his claim on appeal, or that the court was allowed

to look past the point relied on and decide the case on the merits.

137

The

dissent next argued that the majority opinion misunderstood the difference

between intellectual disability and competency to stand trial.

138

At the time of Johnson’s plea, the Supreme Court of the United States

and the Supreme Court of Missouri had held that an incompetent person could

not go to trial or be convicted.

139

Competency is described as an individual

having sufficient ability to consult with counsel.

140

Intellectual disability is

based on clinical standards and disqualifies an individual from receiving the

death penalty.

141

Competency is governed by state laws, but the Supreme

Court has held that states are limited by clinical guidance in determining there

definition of intellectual disability..

142

The determinations of competency and

intellectual disability are made by the court and based on separate types of

evidence.

143

Although definitionally and functionally different, these two

concepts may overlap.

144

The evidence Johnson offered at his post-conviction

relief hearing showed that Johnson’s IQ was between fifty-three and sixty-

134

. Id. at 908 (Stith, J., dissenting).

135

. Id. at 909–10.

136

. Id. at 912. The dissent justified its finding that Johnson’s argument is

preserved for review by citing relevant case law and language found in MO. R. CRIM.

P. 24.035(k). Id. at 910 (citing MO. R. CRIM. P. 24.035(k)). The dissent claimed the

issue should have been examined by the court even if not raised or preserved because

Rule 84.12(c) allows the court to review an issue under the plain error standard

discretionarily. Id. at 913 (citing MO. SUP CT. R. 84.13(c)). However, the majority

addressed Judge Stith’s analysis and found no reason to read past the issue raised in

the appellate brief because no argument was readily apparent. Id. at 906–08 (majority

opinion). The argument based on appellate procedure will not be further discussed as

it is outside the scope of this note.

137

. Id. at 914 (Stith, J., dissenting).

138

. Id.

139

. See id. (citing State v. Wise, 879 S.W.2d 494, 507 (Mo. 1994) (en banc));

Dusky v. United States, 362 U.S. 402 (1960).

140

. Johnson, 580 S.W.3d at 914 (citing State, 879 S.W.2d at 507).

141

. Id. at 902 (majority opinion) (citing Atkins, 536 U.S. at 318).

142

. Id. at 916 (Stith, J., dissenting).

143

. Id. at 914–17.

144

. Id. at 914.

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three.

145

The dissent concluded that he met the definition of “intellectually

disabled” under Missouri case law, and that his counsel, apparently ignorant

of the law, only moved for a finding of incompetency.

146

In addition to this, both Dr. Armour and Dr. Fucetola diagnosed Johnson

with “mild mental retardation” in addition to multiple non-adaptive

behaviors.

147

Because these findings – when viewed in light of Missouri case

law – show that a factfinder would have likely found Johnson to be

intellectually disabled, the dissent found that the majority opinion and the

post-conviction relief court used the wrong test for assessing counsel’s

mishandling of intellectual disability issues.

148

Judge Stith concluded that the

findings of the post-conviction relief court regarding Johnson’s intellectual

disability were clearly erroneous.

149

Finally, the dissent examined the record regarding the plea counsel’s

understanding of intellectual disability.

150

The dissent noted that Johnson’s

plea counsel is on record as using the terms “competency” and “intellectual

disability” interchangeably.

151

His interchangeable use of the terms indicates

that he did not understand what “intellectual disability” means.

152

The dissent

further state that because plea counsel did not understand the significance of

Johnson’s intellectual disability, he did not properly advise Johnson about the

defense of intellectual disability to the death penalty.

153

Therefore, Johnson

was misinformed and coerced into accepting a life sentence through his plea

counsel’s failure to completely inform him of a possible defense to the death

penalty.

154

Had Johnson been properly informed, he would not have pleaded

guilty and, therefore, he was prejudiced by counsel’s inept performance.

155

Based on these findings, the dissent concluded that the court should sustain

Johnson’s motion for post-conviction relief on the grounds of ineffective

assistance of counsel, vacate his sentence to life without the possibility of

parole, and grant him a new trial, or alternatively, remand for a new

evidentiary hearing.

156

145

. Id. at 908.

146

. Id. at 909, 919.

147

. Dr. Armour made this finding during his initial competency evaluation, and

Dr. Fucetola later made the same finding during the admission of post-trial evidence.

Id. at 917. The dissent asserted that these two facts could be found in the post-

conviction plea hearing record. Id. at 917–19.

148

. Id. at 919.

149

. Id. at 909.

150

. Id. at 921–23.

151

. Id. at 921.

152

. Id. at 922–23.

153

. Id. at 923–24.

154

. Id. at 924.

155

. Id. at 925–26.

156

. Id. at 928.

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V. COMMENT

The majority’s holding in Johnson condemns an intellectually disabled

defendant to a life sentence without parole – a sentence he did not deserve.

157

The majority in Johnson held that an individual can only be found

intellectually disabled by a factfinder during trial.

158

In effect, this subjects a

person who is truly intellectually disabled to the death penalty unless he or

she decides to take the case to trial and allow a factfinder to determine the

issue.

159

While the Supreme Court of the United States has held that the threat

of the death penalty during plea negotiations is not unduly coercive,

160

it has

also held that defendants have a Sixth Amendment right to effective assistance

of counsel during plea negotiations.

161

The majority’s decision fails to follow

the Sixth Amendment’s requirements given by the Supreme Court of the

United States by finding Johnson’s attorney effective even when his testimony

indicated that he did not perceive Johnson to be intellectually disabled – even

though two separate experts found that he was – and he failed to investigate

any additional relevant law.

162

The ruling in Johnson will have a negative effect on intellectually

disabled individuals in criminal proceedings by lowering the standard for

effective assistance of counsel for criminal defense attorneys and by changing

the nature of plea negotiations in Missouri criminal law. Subpart A of this

Part analyzes the inherent unfairness of this ruling to Ronald Johnson.

Subpart B looks at the effect this ruling will have on the law in Missouri

regarding individuals with intellectual disabilities.

A. The Court’s Ruling in Johnson Creates Dangerous Precedent for

Proving Intellectual Disability

The court’s interpretation for the requirements of proving intellectual

disability creates an illogical burden on intellectually disabled individuals

during the guilty plea stage. In Johnson, the court found that only a factfinder

can make a determination of intellectual disability.

163

Interpreting applicable

Missouri law, the court found that the burden of proof for intellectual

157

. Id. at 928.

158

. Id. at 902–03 (majority opinion).

159

. Id. (citing State v. Johnson, 244 S.W.3d at 150.); see also MO. REV. STAT.

§§ 565.005.1, 565.020.2.

160

. North Carolina v. Alford, 400 U.S. 25, 39 (1970).

161

. Missouri v. Frye, 566 U.S. 134, 145 (2012) (holding that failure to inform a

defendant of a plea offer constitutes ineffective assistance of counsel); see Padilla v.

Kentucky, 559 U.S. 356, 374 (2010) (holding that failure to inform a defendant of the

potential immigration consequences of a plea agreement constitutes ineffective

assistance of counsel).

162

. See Johnson, 580 S.W.3d at 906.

163

. Id. at 902–03.

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disability is on the defendant.

164

Thus, until a defendant proceeds to trial and

raises the issue of intellectual disability, and then receives a ruling on that

issue, he is not considered intellectually disabled.

165

Because the Supreme

Court of the United States has ruled executions of intellectually disabled

individuals unconstitutional, this leaves defense counsel whose client’s IQ is

on the margin of what constitutes an intellectual disability in a difficult

situation during plea negotiations.

166

In cases like this one, where a

defendant’s IQ is well below the standard for intellectual disability, the

prosecutor’s coercive power is even more pronounced unless defense counsel

is required to investigate his or her client’s intellectual abilities or be

extremely well versed in the law.

The prosecutor can threaten the defendant with the death penalty unless

he or she pleads guilty, and defense counsel cannot convince the client that

the death penalty would not be allowed. This, in turn, provides an unfair

advantage to the prosecution in plea negotiations, where defense counsel are

already notoriously disadvantaged.

167

If the prosecution knows or has reason

to know that a defendant is intellectually disabled, they can still push for the

death penalty.

168

Defense counsel in this case must tell the client that he or

she might face the death penalty if he or she is not found to be intellectually

disabled. Although defense counsel with proper time and resources would

properly investigate, find evidence that the defendant does qualify as

intellectually disabled, and advise the defendant accordingly, a rushed or

overworked public defender might not. For most criminal defense attorneys

who already suffer from a lack of training when dealing with mentally

impaired defendants,

169

this ruling requires more time and expense to provide

an adequate defense which only furthers a criminal defendant’s

disadvantages.

170

Furthermore, because a finding of intellectual disability is

to be made by the court, in close cases, a defense counsel utilizing a cost-

benefit analysis would have to advise their client about the dangers of proving

intellectual disability versus taking the plea agreement. Thus, the prosecution

164

. Id. at 903; see MO. REV. STAT. §§ 565.005.1, 565.020.2.

165

. Johnson, 580 S.W.3d at 903.

166

. See Atkins, 536 U.S. at 355 (holding that the death penalty is excessive

punishment for individuals with intellectual disabilities and the U.S. Constitution

places a substantive restriction on a state’s power to take the life of an intellectually

disabled offender).

167

. Gregory G. Sarno, Adequacy of defense counsel’s representation of criminal

client regarding plea bargaining, 8 A.L.R. 4TH 660 (Originally published in 1981,

updated weekly); Joseph L. Hoffman, Mary L. Kahn & Steven W. Fisher, Plea

Bargaining in The Shadow of Death, 68 FORDHAM L. REV. 2313 (2001).

168

. See Johnson, 580 S.W.3d at 903.

169

. See Rodney J. Uphoff, The Role of the Criminal Defense Lawyer in

Representing the Mentally Impaired Defendant: Zealous Advocate or Officer of the

Court?, 1988 WIS. L. REV. 65, 74 (1988).

170

. See Evan G. Hall, The House Always Wins: Systemic Disadvantage for

Criminal Defendants and the Case against the Prosecutorial Veto, 102 CORNELL L.

REV. 1717 (2017).

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gains the advantage of being able to use an inapplicable penalty to procure a

plea agreement when defense counsel is not aware of the law regarding

intellectual disability. While the court’s interpretation creates a paradox for

intellectually disabled individuals during the plea negotiation stage of a trial,

it also muddles the law of competency.

It is settled law in Missouri that a finding of intellectual disability does

not prevent a finding of competency to stand trial or plead guilty.

171

In its

examination of the evidence of Johnson’s mental evaluation for competency,

the court deferred to the finding of the lower court that, although Johnson

produced evidence that he had an IQ of between fifty-three and sixty-three

and suffered from schizophrenia, a psychologist found him competent to stand

trial.

172

This same psychologist, however, also made a finding that Johnson

would qualify as “mentally retarded” under the applicable medical diagnostic

criteria.

173

Even so, the court found this evidence to apply only to a finding

of competency.

174

While Johnson’s counsel reviewed enough of his client’s

records to determine that there may have been some question of his ability to

plead guilty, he had no knowledge of the implications of intellectual disability

or the possible defenses it could provide and failed to ask for a determination

on the issue.

175

Not only did the majority opinion not consider this, but it

made an explicit finding that Johnson’s attorney’s testimony that he felt

Johnson was just “a little slow” was more persuasive than the medical reports

that Johnson offered to show his intellectual disability.

176

By confusing the standards for competency and intellectual disability,

the court in Johnson established a system for analysis in Missouri in which a

defendant may be declared intellectually disabled but competent to plead

guilty and then also be required to go to trial to determine that he or she is, in

fact, intellectually disabled.

177

This paradox could be prevented by allowing

a competency hearing to also function as a hearing on intellectual disability.

Alternatively, the rules should be changed to allow a judge to decide

intellectual disability before the beginning of the trial. In addition to

preventing this paradox, either of these options would also speed up the trial

process by allowing a finding on both issues in one hearing. While a single

hearing on both of these issues would require different types of evidence, the

experts used for either of these examinations would be proficient in providing

both. The fundamental problem in this case, however, is that Johnson’s

counsel was ignorant of the law regarding intellectual disability.

178

171

. See State v. Hunter, 840 S.W.2d 850, 863 (Mo. 1992) (en banc); Wilson v.

State, 813 S.W.2d 833, 835 (Mo. 1991) (en banc).

172

. Johnson, 580 S.W.3d at 904.

173

. Id. at 917 (Stith, J., dissenting).

174

. Id. at 904 (majority opinion).

175

. See id. at 919 (Stith, J., dissenting).

176

. Id. at 905, 909 (majority opinion).

177

. See id. at 914 (Stith, J., dissenting).

178

. See Johnson, 580 S.W.3d at 909 (majority opinion).

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By rejecting Johnson’s other claim on appeal that his counsel was

ineffective for failing to request a second competency evaluation, the court

creates a problematic precedent on two separate issues.

179

Based on the plea

counsel’s testimony that he did not think Johnson was slow, the trial court

found counsel not ineffective.

180

The majority then held that this ruling was

not clearly erroneous.

181

Finding this evidence sufficient creates a dangerous

precedent for two reasons. First, the Supreme Court of the United States has

held that, when facing the death penalty, a defendant has a constitutional right

to expert testimony in determining whether they have an intellectual

disability.

182

By accepting the testimony of Johnson’s attorney as sufficient

to show that he was ineffective, this constitutional standard is ignored.

183

Second, in this case, there is evidence to show that counsel should have

reasonably suspected that Johnson was disabled and that he did not understand

the law regarding intellectual disability.

184

These two issues create a precedent that not only ignores constitutional

law but allows courts to ignore the relevant facts of the case. This holding

places considerable difficulties on an appeal based on ineffective assistance

of counsel for intellectually disabled individuals because they will need to

overcome any statements of their prior counsel that they were competent.

185

Additionally, allowing a finding that this kind of self-serving evidence is

persuasive encourages an attorney to lie, even if they know they have been

ineffective. This type of pressure on attorneys encourages them not only to

act unethically, but also to put their own professional well-being over the

freedom of a client.

Considering the findings of the court in Johnson, it is clear that

defendants with intellectual disabilities in Missouri must now overcome more

hurdles than ever before. First, a defendant’s counsel must engage in unfair

plea negotiations and advise their clients based on uncertainties in sentencing

that could mean life or death.

186

Second, an intellectually disabled individual

must convince his or her counsel to request specific hearings into both

competency and intellectual disability, while hoping that the court is able to

discern a difference between the two.

187

Third, if his or her counsel does fail

to request the proper hearings, an intellectually disabled individual must make

an exaggerated showing of his or her intellectual disability on appeal to prevail

in a claim of ineffective assistance of counsel. Finally, appellate attorneys

must be technically precise in their drafting of points relied on or, regardless

179

. Id. at 908.

180

. Id. at 905.

181

. Id. at 905–06.

182

. Hall v. Florida, 572 U.S. 701, 723–24 (2014).

183

. See Johnson, 580 S.W.3d at 900, 902.

184

. See id. at 917–19 (Stith, J., dissenting).

185

. See id. at 900, 902 (majority opinion).

186

. See id. at 902–03.

187

. See id. at 914, 920–21 (Stith, J., dissenting).

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2020] RESTRICTIONS ON APPEALS OF INTELLECTUAL DISABLITIES 823

of the merits or injustices of the case, the Supreme Court of Missouri will not

consider the issue.

188

B. The Court’s Ruling in Johnson was Inherently Unfair to the

Defendant

The court’s ruling in Johnson is unfair because it misinterpreted,

misapplied, and ignored the relevant law, thereby denying Johnson the

opportunity to have his case heard on the merits. In Johnson’s first issue

raised on appeal, he claimed that he was coerced by his plea counsel into

pleading guilty by threat of death penalty.

189

The majority analyzed this issue

on the basis that a plea bargain is valid as long as it was voluntarily and

intelligently made.

190

While the court determined that, based on the evidence

provided at the post-conviction relief hearing by plea counsel, Johnson made

the plea voluntarily.

191

However, their legal analysis of what constitutes

“voluntary” in giving a plea is flawed. In determining whether a plea

agreement is coercive, the court found that “the fact that the maximum

authorized punishment for a certain crime may be a threatening alternative in

itself does not render a plea involuntary.”

192

Referring to prior decisions, the

court held that voluntariness of a plea cannot be attacked on a basis that the

defendant feared the death penalty.

193

Thus, Johnson’s claim of coercion had

to fail because the death penalty was the maximum authorized punishment for

the crime of first-degree murder.

194

While this analysis seems straightforward, the court’s flawed holding of

what evidence is required to prove that a defendant suffers from an intellectual

disability, as discussed above, changes the analysis. During Johnson’s two

mental evaluations for competency, both psychologists found Johnson to be

“mentally retarded.”

195

Additionally, Johnson introduced evidence at his

post-conviction relief hearing that he had an IQ of between fifty-three and

sixty-three.

196

Although the court refused to consider this evidence, it clearly

indicates that Johnson is intellectually disabled under Missouri case law.

197

Because of this, Johnson would have been ineligible for the death penalty.

198

188

. See id. at 908.

189

. Id. at 900.

190

. Id. at 901.

191

. Id.

192

. Id. (citing Jackson, 585 S.W.2d at 497 n.2).

193

. Id. at 902 (citing Jackson, 585 S.W.2d at 497 n.2).

194

. Id.

195

. Id. at 917 (Stith, J., dissenting).

196

. Id. at 908.

197

. W.J.K., 530 S.W.3d at 496 (finding an IQ score of 65 sufficient to indicate

an intellectual disability); State ex rel. Lyons v. Lombardi, 303 S.W.3d 523, 526 (Mo.

2010) (en banc) (holding an IQ between 65 and 70 to establish an intellectual

disability).

198

. Atkins, 536 U.S. at 321.

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824 MISSOURI LAW REVIEW [Vol. 85

Therefore, the death penalty would not have been the “maximum authorized

punishment.”

199

Thus, when Johnson’s counsel told him that he was eligible

for the death penalty during the plea-bargaining process, it would have been

coercive.

200

Additionally, even if the plea-bargaining process was not coercive, it

violated Johnson’s Sixth Amendment right to effective assistance of counsel.

The majority in this case failed to consider the claim of ineffective assistance

of counsel in relation to Johnson’s intellectual disability based on technical

failures of his appellate counsel.

201

However, they admitted in their opinion

that Johnson’s plea counsel could have done more to investigate Johnson’s

potential intellectual disability.

202

Moreover, there is ample evidence from

competency evaluations and plea counsel’s own testimony that he was

ignorant of the law regarding intellectual disability.

203

Thus, by refusing to

consider the merits of the issue raised in the direct appeal because of a

technical deficiency, the majority violates Johnson’s constitutional rights.

204

Based on the analysis above, it is clear that because the court

misinterpreted, misapplied, and ignored the relevant law, it incorrectly found

that Johnson’s appeal failed, thereby treating Johnson unfairly.

VI. CONCLUSION

The Supreme Court of Missouri’s ruling in Johnson substantially affects

the rights of the intellectually disabled in Missouri. By finding that Johnson,

a man who is undoubtedly intellectually disabled, did not receive ineffective

assistance of counsel when his attorney failed to consider or advise him of a

diminished capacity offense or of his ability to use his disability as a defense

to the death penalty, the court lowered the standard of competency required

by defense counsel.

205

While the evidence at his post-conviction hearing

clearly showed him to be intellectually disabled, the court focused instead on

the technical faults in his appellate brief and confused the law of competency

and intellectual disability to uphold the rulings of the lower courts.

206

While

this particular decision affects only one man, its misstatement of law will

affect the intellectually disabled and their counsel for years to come.

199

. Id.

200

. See Johnson, 580 S.W.3d at 898, 901.

201

. See id. at 908.

202

. Id. at 903.

203

. See id. at 909 (Stith, J., dissenting).

204

. See id. at 908.

205

. See id. at 903 (majority opinion); see also id. at 917–19 (Stith, J., dissenting).

206

. See id. at 910, 914, 917–21 (Stith, J., dissenting).

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