Where a brother and sister who were defendants charged with drug and weapons violations argued that they received ineffective assistance of counsel because both were represented by the same attorney even though the defendants’ interests diverged and even after the sister was offered a deal to testify against her brother, the defendants’ allegations presented an actual conflict of interest, so they were not required to show prejudice, and the court’s use of a group plea hearing exacerbated the problem, so the judgments are vacated and remanded.
Concurring opinion by Fischer, J.: “When the facts pleaded allege an actual conflict, prejudice is presumed. I concur with the per curiam’s conclusion that, because the DePriests’ amended motions each satisfied this standard, the motion court clearly erred in overruling their motions without an evidentiary hearing.
“While the presumption of prejudice that results from pleading an actual conflict of interests may relieve a movant from pleading how the movant was prejudiced in this context, the State may rebut the presumption that one or both of the DePriests were prejudiced at the evidentiary hearing on remand.”
Concurring opinion by Wilson, J.: “I concur in the Court’s opinion, but write separately to emphasize that – in order to reach this result – the Court was required to parse the amended motions in both cases far more than it should have to have done, and far more than the best interests of David and Natalie DePriest should have required….
“The state did not argue in the motion court that one or both of these amended motions should be overruled because counsel failed to comply with Rule 55, nor do I suggest that these motions now should be overruled on that basis. I concur in the Court’s per curiam opinion because I believe that the substantive pleading requirements set forth in the per curiam opinion are correct and because – after close study – I believe these amended motions meet those standards (if only barely, in Mr. DePriest’s case). It should be noted, however, that this result comes despite the form and style of those motions. As set forth above, I believe Rule 55 compels post-conviction counsel to take a more orderly approach in drafting amended motions under Rule 24.035 (and Rule 29.15). Moreover, even if Rule 55 does not compel post-conviction counsel to take this approach, post-conviction clients would be better served if their counsel did so.”
DePriest v. State (MLW No. 70242/Case No. SC95483 – 28 pages) (Supreme Court of Missouri, per curiam) Appealed from circuit court, St. Francois County, Pratte, J. (Lisa M. Stroup and Gwenda R. Robinson, St. Louis, for appellants) (Shaun J. Mackelprang, Jefferson City, for respondent).