Ervin v. State, 2013 Mo. App. LEXIS 1198

Movant (Ervin) pleaded guilty to felony receiving stolen property (value alleged > $500) pursuant to a plea deal: seven-year suspended sentence with five years probation and $605 restitution.
At plea hearing Ervin admitted receiving 17 bottles of liquor he believed were stolen and said he was satisfied with trial counsel’s investigation and representation.
Counsel had received discovery but did not review a list showing the retail values of the bottles; discovery later showed the 17 bottles in Ervin’s possession totaled $246.86 and all recovered bottles totaled $357.21 (below $500).
Ervin testified he repeatedly requested discovery before pleading; counsel forgot to bring discovery to arraignment and he pled when the State’s plea offer expired without having seen discovery. Counsel testified she did not compare item lists or add values and said Ervin wanted to “get it done.”
The motion court denied Ervin’s Rule 24.035 ineffective-assistance claim, relying on his in-court statements of satisfaction with counsel and that he chose to plead guilty.
The appellate court reversed, finding counsel’s failure to review available discovery was objectively unreasonable and that, but for that failure, Ervin would have rejected the felony plea and proceeded to trial (or pled to a misdemeanor).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether plea was involuntary due to counsel's failure to investigate value of property	Ervin: counsel failed to review discovery showing value < $500; would not have pleaded guilty to a felony if he knew	State: Ervin indicated he wanted to plead and was satisfied with counsel; similar cases show defendants still would have pled	Court: Counsel was ineffective for not reviewing discovery; plea involuntary because reasonable probability Ervin would have gone to trial or pled only to misdemeanor

Weeks v. State, 140 S.W.3d 39 (Mo. banc 2004) (standard of appellate review for Rule 24.035).
Bryant v. State, 316 S.W.3d 503 (Mo. App. E.D. 2010) (appellate review and clearly erroneous standard).
Wilkins v. State, 802 S.W.2d 491 (Mo. banc 1991) (counsel ineffectiveness only relevant to voluntariness of plea).
Simmons v. State, 100 S.W.3d 143 (Mo. App. E.D. 2003) (plea voluntariness principles).
Conger v. State, 398 S.W.3d 915 (Mo. App. E.D. 2013) (burden to prove post-conviction claims; investigation requirement).
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective assistance standard).
Burnett v. State, 311 S.W.3d 810 (Mo. App. E.D. 2009) (reasonableness prong discussion).
Anderson v. State, 66 S.W.3d 770 (Mo. App. W.D. 2002) (duty to investigate and limits on strategic choices).
Strong v. State, 263 S.W.3d 636 (Mo. banc 2008) (when counsel may cease investigation).
Johnson v. State, 318 S.W.3d 313 (Mo. App. E.D. 2010) (prejudice showing where plea entered).
Voyles v. State, 272 S.W.3d 921 (Mo. App. S.D. 2009) (contrast case where defendant insisted on pleading despite incomplete discovery).
State v. Driver, 912 S.W.2d 52 (Mo. banc 1995) (limitations of general plea colloquy answers in refuting ineffectiveness claims).