SC91613
Lester Krupp Jr. v. State of Missouri
St. Louis County
Challenge to validity of post-conviction relief waiver
Listen to the oral argument:
Krupp was represented during arguments by Scott Thompson of the public defender's office in St. Louis, and the state was represented by Jayne T. Woods of the attorney general's office in Jefferson City. Judge Cynthia L. Martin, a judge on the Missouri Court of Appeals, Western District, sat in this case by special designation to fill the vacancy on the Court.

A jury convicted Lester Krupp Jr. in April 2008 of one count of felonious restraint, four counts of deviate sexual assault and one count of first-degree sexual misconduct. He waived his right to be sentenced by a jury and pleaded guilty to another count of felonious restraint and a count of domestic assault arising from a separate incident. In exchange for his guilty pleas, the state recommended that he serve a total of 15 years in prison through a combination of concurrent (served together) and consecutive (served back-to-back) sentences. As part of his plea, Krupp also waived his rights to file a motion for a new trial, to a direct appeal and to post-conviction remedies. Krupp sought post-conviction relief in August 2008 and filed a direct appeal in November 2008. The appeal was dismissed because of Krupp’s waiver of appeal in circuit court. In his amended motion for post-conviction relief, Krupp claimed that he was denied effective assistance of counsel because his trial counsel failed to present the testimony of a material witness whose testimony, he alleged, would have provided a viable defense; that his counsel failed to offer an instruction for sexual misconduct as an appropriate lesser-included offense for the charges of deviate sexual assault; and that his counsel should not have advised him to waive direct appeal. The circuit court denied relief without a hearing in May 2010. Although it found that Krupp effectively waived his right to post-conviction relief as part of his plea agreement, the court did not dismiss his motion but ruled on its merits. Krupp appeals.

Krupp argues the circuit court correctly ruled on the merits of his post-conviction relief claims rather than dismissing them because, he contends, his waiver of such claims lacked proper legal advice by an attorney with no conflicts of interest and, therefore, was not voluntary or intelligent. He notes that defense attorneys are discouraged from advising their clients to waive post-conviction relief as they have a personal interest in a potential claim that they provided ineffective assistance. Krupp asserts that the circuit court clearly erred in denying him post-conviction relief without a hearing and that his counsel clearly provided ineffective assistance. He argues his counsel failed to present the testimony of a witness he claims could have testified about the scene of one of the charged crimes. He contends this testimony was not merely evidence to impeach (contradict) a witness and was not cumulative (redundant) to other evidence presented. Krupp asserts his counsel failed to offer instructions for first-degree sexual misconduct as a lesser-included offense for deviate sexual assault. He argues that the jury might have disbelieved that he knew he acted without the victim’s consent and that it is reasonable to believe, had the lesser-included instructions been offered, that the jury would have acquitted him of deviate sexual assault. Krupp contends his counsel should not have advised him to waive his right to direct appeal after erroneously advising him that he would serve no more than 15 percent of an anticipated 15-year sentence. As a result, he asserts, his waiver was neither knowing nor voluntary.

The state responds that the circuit court did not clearly err in denying post-conviction relief without a hearing because Krupp knowingly and voluntarily waived his right to seek such relief through a plea agreement. Alternatively, it argues that Krupp cannot challenge the validity of his waiver now when he failed to do so in the lower courts and, therefore, that his appeal should be dismissed. The state contends the circuit court did not clearly err in determining that Krupp validly waived his right to seek post-conviction relief, noting that the court that accepted Krupp’s plea thoroughly questioned him about his understanding of the waiver. The state asserts that any opinion that defense counsel’s advice that a defendant waive post-conviction rights always will result in an actual conflict of interest is overbroad and that, in the absence of facts indicating that counsel acted detrimentally to the defendant, it should be assumed that defense counsel are acting within the scope of the rules of professional conduct.




SC91695
Willie E. Cooper v. State of Missouri
St. Louis County
Challenge to validity of post-conviction relief waiver
Listen to the oral argument:
Cooper was represented during arguments by Scott Thompson of the public defender's office in St. Louis, and the state was represented by John W. Grantham of the attorney general's office in Jefferson City. Judge Cynthia L. Martin, a judge on the Missouri Court of Appeals, Western District, sat in this case by special designation to fill the vacancy on the Court.

Willie Cooper pleaded guilty in October 2008 to stealing more than $500 in two separate cases. As part of the plea agreement, Cooper told the court that he was satisfied with his counsel’s representation of him and agreed to waive his right to post-conviction remedies. The court sentenced him, as a prior and persistent offender, to concurrent (served together) sentences of 15 years each, suspended execution of the sentence, placed Cooper on probation for five years and ordered him to pay $700 in restitution to one of the stores from which he stole. Due to a subsequent probation violation, the court in April 2009 revoked Cooper’s probation and imposed the 15-year prison sentence. The next month, Cooper sought post-conviction relief. In his amended motion for post-conviction relief, Cooper claimed his guilty pleas were not made voluntarily because his attorney provided ineffective assistance. He alleged that his counsel threatened to withdraw from representing him if he proceeded to trial; told him that, if he went to trial and lost, he would receive the maximum sentences possible and they would have to be served consecutively (back-to-back); and that he would lose if the two counts were tried jointly. The circuit court did not dismiss Cooper’s motion but ruled on its merits without a hearing, finding that the record showed he pleaded guilty voluntarily, that no one forced him to plead guilty and that he was satisfied with his attorney’s representation. Cooper appeals.

Cooper argues the circuit court correctly ruled on the merits of his post-conviction relief claims rather than dismissing them because, he contends, his waiver of such claims lacked proper legal advice by an attorney with no conflicts of interest and, therefore, was not voluntary or intelligent. He notes that defense attorneys are discouraged from advising their clients to waive post-conviction relief as they have a personal interest in a potential claim that they provided ineffective assistance. Cooper asserts that the circuit court clearly erred in denying him post-conviction relief without a hearing and that his counsel clearly provided ineffective assistance. He argues his counsel coerced him to plead guilty by threatening to withdraw, threatening the maximum punishment if he chose to go to trial and threatening him with a joint trial on both charges. He contends that, but for these tactics by his attorney, he would have insisted on trials in each case. He asserts that his general expression of satisfaction with his attorney’s representation did not refute specifically his complaints that his attorney misled him.

The state responds that this Court should dismiss Cooper’s appeal because he voluntarily waived his right to post-conviction relief. It argues he cannot challenge the validity of his waiver now when he failed to do so in the lower courts. It contends the record demonstrates that Cooper was advised extensively of his right to post-conviction relief in the event his probation was revoked and that he waived such a right knowingly and voluntarily. The state asserts that neither the record nor Cooper’s factual allegations support his claim that his counsel had an actual conflict of interest in advising him to waive his post-conviction rights. It notes that established case law at the time Cooper pleaded guilty permitted defendants to waive their post-conviction rights in exchange for a sentence reduction. The state further responds that the circuit court did not clearly err in denying post-conviction relief without a hearing. It argues that Cooper’s allegations of counsel’s undue pressure or coercion lack merit and are refuted by his extensive testimony at the plea hearing.




SC91727
Gary Gervich, Deceased, and Deborah Gervich v. Condaire, Inc., and the Treasurer of Missouri as Custodian of the Second Injury Fund
St. Louis County
Surviving dependent’s right to continuing workers’ compensation benefits
Listen to the oral argument:
Gervich was represented during arguments by Richard T. Grossman, a solo attorney in St. Louis, and the state was represented by Carol L. Barnard of the attorney general's office in St. Louiss. Judge Cynthia L. Martin, a judge on the Missouri Court of Appeals, Western District, sat in this case by special designation to fill the vacancy on the Court.

Gary Gervich was injured in April 2006 after falling from a basket being lowered by a crane in St. Louis County. His employer, Condaire Inc., authorized medical treatment for his injuries. In May 2006, Gervich filed a claim for workers’ compensation, alleging he was permanently and partially disabled as a result of his injuries. Nine months later, he amended his claim, alleging he was permanently and totally disabled as a result of his injuries. His neurosurgeon considered both surgical and conservative treatment options but ultimately determined that Gervich was not a good surgical candidate. In 2008, the legislature changed the law relating to the rights of dependents on the death of a disabled employee. Gervich died in April 2009 of causes unrelated to his work injury. During an April 2009 hearing before an administrative law judge, Gervich’s wife, Deborah Gervich, was named as his sole surviving dependent and was substituted for her deceased husband in the workers’ compensation claim. At the hearing, both Condaire and Gervich submitted expert medical testimony that her husband had been permanently and totally disabled. In his August 2009 award, the administrative law judge found that Gervich’s husband had been permanently and totally disabled due to a combination of his April 2006 work injury and prior disabilities. The administrative law judge awarded Gervich’s husband permanent partial disability benefits from Condaire and permanent total disability benefits from the second injury fund, both up to the date of his death. The administrative law judge further found that, because Gervich did not submit evidence that she was permanently and totally disabled, she was not entitled to such benefits as her husband’s sole survivor and legal equivalent. She sought review in the labor and industrial relations commission, which affirmed the administrative law judge’s decision that she was not entitled to continue to receive her husband’s permanent and total disability benefits. Gervich appeals.

Gervich argues the commission erred in denying her the right to collect, during her lifetime, continuing permanent and total disability benefits against the second injury fund for her husband’s 2006 work injury. She contends she legally is entitled to collect those benefits under section 287.230, RSMo Supp. 2006, and article I, section 13 of the Missouri Constitution. She asserts that, as her husband’s dependent, her rights to receive disability benefits accrued at the time of his injury – before both her husband’s death in 2009 and the 2008 amendments to sections 287.200 and 287.230, RSMo. Gervich argues the changes to those statutes cannot be applied retrospectively to bar her collection of her husband’s benefits.

The second injury fund responds that it is not liable for continuing permanent total disability benefits payable to a dependent whose claim did not vest until after the employee’s death. It argues that Gervich’s property right in her husband’s workers’ compensation claim did not vest until he died in April 2009, which was after the amendments to the workers’ compensation law took effect in June 2008. These amendments, it notes, redefined “employee” as used in section 287.200 to mean only the actual worker and clarified that a deceased employee’s dependents are not entitled to the employee’s unaccrued permanent total disability benefits. The fund contends that not even Gervich’s husband had a vested right in permanent disability benefits at the time of his injury; that right did not vest until there was proof that he in fact had a permanent disability after reaching maximum medical improvement. The fund further asserts that, because Gervich’s rights did not vest before the amendments took effect, there is no question of retrospective law.

SC91685
In re: Michael Koenig
Livingston County
Attorney discipline
Listen to the oral argument:
The chief disciplinary counsel was represented during arguments by Nancy L. Ripperger of the chief disciplinary counsel's office in Jefferson City, and Koenig was represented by Robert G. Russell of Kempton & Russell Trial Attorneys in Sedalia. Judge Cynthia L. Martin, a judge on the Missouri Court of Appeals, Western District, sat in this case by special designation to fill the vacancy on the Court.

During 2008 and 2009, the chief disciplinary counsel’s office opened six disciplinary investigations against Chillicothe attorney Michael Koenig for conduct occurring during those years. The chief disciplinary counsel found probable cause in four of those matters to believe that Koenig had violated the rules of professional conduct. Koenig and the chief disciplinary counsel entered into an agreement in which they stipulated findings of fact and conclusions of law. In April 2008, Koenig agreed to defend a couple suing them in a payment dispute. Koenig stipulates that, in the course of this representation, he violated Rule 4-1.3 (diligence) by failing to file a timely notice of appeal in the couple’s case. In October 2008, Koenig agreed to represent a Kansas man in an action to challenge paternity. Koenig stipulates that, in the course of this representation, he violated Rule 4-13 (diligence) by failing to file the petition within a reasonable time after being hired, Rule 4-1.4 (communication) by failing to return his client’s phone calls or respond to written requests for a status report about his actions, and Rule 4-1.15(c) (hold client money separate) by failing to deposit into his client trust account $1,730 he received to pay for his attorney fees and fees for filing and service. In April 2009, a man hired Koenig to file an action to dissolve the man’s marriage. Koenig stipulates that, in the course of this representation, he violated Rule 4-1.3 (diligence) by failing to file the dissolution petition he had prepared after the man approved and signed it, Rule 4-1.4 (communication) by failing to give the man a working phone number he could use to contact him (the man tried calling after Koenig’s wife had shut down his private law office while he was in the Mayo Clinic), and Rule 4-1.15(c) (hold client money separate) by failing to deposit into his trust account the $950 he received from the man to pay for his attorney fees and fees for filing and service. In October 2009, the chief disciplinary counsel was notified that Koenig’s client trust account had a negative balance. An audit of the account for January through September 2009 revealed that his trust account had a negative balance for more than two months; that his wife signed his name, without his knowledge or permission, to checks totaling $5,300 out of his trust account; that he deposited settlement proceeds owed to his clients into his trust account but had to use personal funds to offset deficits in the trust account so he could reimburse his clients what they were owed. Koenig stipulates that he violated Rule 4-8.4(c) (dishonesty, fraud and misrepresentation) when he or his wife used client or third-party funds from the trust account for personal purposes.

During the time of these violations, Koenig served as the Livingston County prosecutor – an elected part-time position with no assistant prosecutors. At the time Koenig took office, there was a backlog of 130 felony cases that needed to be reviewed and filed. He allowed his private practice to slide while he worked to reduce the backlog in the prosecutor’s office. He also experienced some family difficulties shortly after taking office. Ultimately his wife quit her job and become his secretary. She did not have any training in the legal field or office management and was not well-equipped to assist her husband. Although Koenig had sole signatory authority over his client trust account, he turned over preparation of trust account checks and all other trust account bookkeeping to his wife and failed to monitor the account afterward.

In December 2007, Koenig suffered extensive injuries to his back and ribs in a horseback riding accident. He still was being treated in 2009, when his local physicians referred him to the Mayo Clinic in Rochester, Minnesota. He was unable to fulfill his duties as prosecutor for much of 2009; he resumed his duties after being released from the Mayo Clinic in August 2009. His wife shut down his private practice while he was at the Mayo Clinic, sending a number of files to Koenig’s brother, an attorney in Sedalia. In November 2009, Koenig’s wife told him she wanted to dissolve their marriage. Koenig's mental state severely deteriorated, resulting in an attempted suicide, and he spent time afterward receiving inpatient treatment for a recurrent, severe, major depressive disorder. His treatment improved his condition. Several months later, he resumed his duties as prosecutor, after which he successfully tried numerous jury trials. Koenig’s dissolution was completed in April 2010, and his doctors agreed he could stop taking antidepressants five months later. His mood and ability to work continue to improve.

A regional disciplinary hearing panel approved the discipline proposed in the joint stipulation: that Koenig’s license be suspended for at least two years, that the suspension be stayed and that Koenig be placed on probation with certain conditions for three years. The chief disciplinary counsel now asks this Court to discipline Koenig’s law license.

The chief disciplinary counsel argues this Court should suspend Koenig’s law license for two years, stay the suspension and place Koenig on probation for three years. He contends the American Bar Association sanctioning standards, case law and this Court’s rules support this level of discipline. The chief disciplinary counsel contends that Koenig had no previous record of discipline and that his ethical violations resulted from his severe depression. He argues that Koenig has shown a sustained period of recovery from his depression and that the proposed terms of probation would permit the chief disciplinary counsel to monitor Koenig’s condition and actions closely.

Koenig agrees with the chief disciplinary counsel’s recommendations.

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