DALE FRAZIER, )

)

Movant-Appellant, )

)

vs. ) No. SD35430

) Filed: May 21, 2019

STATE OF MISSOURI, )

)

Respondent-Respondent. )

APPEAL FROM THE CIRCUIT COURT OF NEW MADRID COUNTY

Honorable W. Keith Currie, Judge

AFFIRMED

Dale Frazier (“Frazier”) appeals from the judgment of the motion court denying his 

amended Rule 24.0351 motion to set aside his two convictions for statutory sodomy in the second 

degree. In two points on appeal, Frazier asserts that: (1) the motion court erred in denying his 

motion because his “sentence is illegal in that his parole is conditioned on an admission of guilt . . .

even though he entered an Alford2 plea”; and (2) plea counsel was ineffective for advising Frazier

 1 All rule references are to Missouri Court Rules (2019).

2 An Alford plea allows a defendant to plead guilty to the charged crime and accept criminal penalty even if he is 

unwilling or unable to admit he committed the acts constituting the crime. North Carolina v. Alford, 400 U.S. 25, 37 

(1970).
2

to enter Alford pleas because Frazier must admit guilt as a prerequisite for parole. Because the

motion court’s denial of Frazier’s amended Rule 24.035 motion, following an evidentiary hearing,

was not clearly erroneous, we affirm.

Facts and Procedural Background

In reciting the facts of this matter, our treatment of the evidence is in accord with the 

principle that we defer to the motion court’s credibility determinations and view the evidence in 

the light most favorable to the motion court’s judgment. Hewitt v. State, 559 S.W.3d 390, 392

(Mo.App. S.D. 2018). We recite other evidence not encompassed by this standard as necessary 

for context.

Frazier was charged by information with two counts of the class C felony of statutory 

sodomy in the first degree. He entered into an Alford plea agreement with the State whereby the 

State would reduce both counts to statutory sodomy in the second degree.

A plea hearing was held on August 26, 2014. Frazier advised the trial court that it was his 

decision to enter Alford pleas, and he had discussed the plea with his attorney. The following 

colloquy then took place:

THE COURT: Now, Mr. Frazier, have you spoken with your 

attorney about what an Alford plea is? 

[FRAZIER]: Yes, sir. 

THE COURT: Let me explain to you what I understand an Alford 

plea to be, because I want to make sure that you and I are talking about the same 

thing.

Now, it’s called an Alford plea because it’s named after a case that 

involved a gentleman, I believe it was a gentleman from the state of North Carolina, 

he was charged with some type of felony offense in North Carolina, and, he ended 

up entering what we refer to as an Alford plea. And that case went all the way to 

the United States Supreme Court. And, in that case the Supreme Court recognized 

a plea by which the defendant in entering his plea was not necessarily admitting his 

guilt to the offense, or the offenses that he was pleading to, but he was telling the 
3

Court by entering his plea that his understanding of the evidence that would be 

presented against him at trial was such that if he were to go to trial, there would be 

a very real possibility that he would be found guilty and convicted, and the 

defendant believed it was in his best interest in [sic] enter what we now refer to as 

an Alford plea. 

Now, do you understand kind of what I just told you I understand an 

Alford plea to be? 

[FRAZIER]: Yes, sir. 

THE COURT: And, is that basically the same type of plea that you 

want to enter before the Court here today? 

THE DEFENDANT: Yes, sir.

Frazier indicated his understanding that the term of punishment on each count was up to a 

year in the county jail or a term in the Department of Corrections (“DOC”), not to exceed seven 

years; that he did not have to enter Alford pleas, but could instead proceed to trial; understood his 

rights attendant to a jury trial; he was satisfied with counsel’s representation; and that counsel had 

done what Frazier asked.

Frazier confirmed he understood the charges against him as recited by the trial court; 

believed it was in his best interest to enter the Alford pleas; and was entering the Alford pleas of 

his own free will. The evidence against Frazier was recited, Frazier indicated he understood the 

evidence, and that this understanding was the basis for his Alford pleas.

Pursuant to the Alford plea agreement, the State recommend a five-year sentence on each 

count, with the sentences to run consecutively, and Frazier would receive a suspended execution 

of those sentences and five years of supervised probation. Frazier confirmed he understood this 

sentencing recommendation. He affirmed his understanding that if the trial court accepted his plea

and “[made] a finding of [his] guilt” as to the two charges and placed him on probation, he would 

be supervised by the Board of Probation and Parole as a sex offender, and “subject to certain 
4

requirements as a sex offender, such as registration and things of that nature.” Frazier confirmed 

he was asking the trial court to accept his plea “pursuant to the Alford case” on the two separate 

counts of statutory sodomy in the second degree, and follow the State’s sentencing 

recommendation.

The trial court accepted Frazier’s Alford pleas, made “a finding of [Frazier]’s guilt as to 

each of the two separate counts of statutory sodomy in the second degree, and sentenced Frazier 

pursuant to the State’s recommendation.

On October 27, 2015, a probation revocation hearing was held. Frazier waived his right to 

a formal hearing, and admitted to violating his probation. The trial court announced that Frazier 

had previously “pled guilty to the two amended counts of statutory sodomy” and was given 

probation, but was in violation of that probation because he went to Arkansas without notifying 

his probation officer, and “actually committed a new offense of possession of a controlled 

substance” while there. The court then revoked Frazier’s probation and ordered execution of his

sentences.

Frazier again confirmed that he was satisfied with plea counsel’s representation, that plea 

counsel had done what he asked, and that he had ample opportunity to discuss his case with plea 

counsel. The court found no probable cause existed that Frazier received ineffective assistance of 

counsel. Frazier was delivered to the DOC on October 30, 2015.

On June 5, 2017, Frazier timely filed an amended Rule 24.035 motion.

3 In the motion, 

Frazier asserted, in relevant part, that: (1) plea counsel was ineffective for advising him to enter

 3 We have independently verified the timeliness of Frazier’s amended motion, as required by Moore v. State, 458

S.W.3d 822, 825 (Mo. banc 2015). Frazier filed his timely pro se Rule 24.035 on April 25, 2016. Counsel was 

appointed on May 2, 2016. Counsel filed an entry of appearance on May 18, 2016. The transcript was filed on March 

6, 2017. Counsel was granted a 30-day extension of time in which to file the amended motion, which was timely filed 

June 5, 2017.
5

an Alford plea where the terms of his probation included the completion of the Missouri Sex 

Offender Program (“MOSOP”), which would require an admission of guilt to the facts constituting 

the offenses; and (2) that his sentence was illegal because MOSOP conditioned parole on Frazier’s 

admission of guilt, thereby depriving him of his right to free speech and his right against selfincrimination.

At the evidentiary hearing on September 6, 2017, plea counsel testified he explained to 

Frazier what an Alford plea was, and recommended he take the plea. Plea Counsel further 

explained to Frazier that if his probation was revoked, Frazier would have to complete the 

MOSOP, and would “have to admit his guilt to the underlying criminal charges” to complete

MOSOP. Plea counsel testified that the charges put Frazier in a “tough spot” since Frazier was 

looking at a life sentence on each of the initial charges (statutory sodomy in the first degree), but 

indicated that Frazier made the decision to enter Alford pleas (for statutory sodomy in the second 

degree) and accept probation.

Frazier testified he had prior convictions for “anywhere from six to maybe eight prior drug 

offenses,” “a third degree assault one time,” and “a [failure to pay] child support.” He admitted 

that he had been on probation before (and violated such probation), and knew that if he violated 

probation this time, he would go to prison. Frazier admitted that plea counsel had explained an 

Alford plea, and admitted that at the time of his plea, the trial court also explained an Alford plea. 

Frazier testified that if he had understood he had to complete MOSOP to be eligible for parole, he 

would not have taken the Alford plea, but instead “would have waited and seen if they would offer 

a better deal or maybe took it to trial.”

On January 25, 2018, the motion court issued findings of fact and conclusions of law, 

rejecting Frazier’s amended Rule 24.035 motion. The motion court found that Frazier had been 
6

clearly advised of the nature of an Alford plea and the consequences thereof. The motion court 

also found that Frazier affirmed he understood the meaning of an Alford plea, it was the type of 

plea he wished to enter, it was in his best interest to so plead, and he was entering the plea of his 

own free will.

The motion court noted Frazier’s argument that he would be required to admit guilt to 

complete the MOSOP program, pursuant to section 589.040.

4 The motion court rejected this 

argument, reasoning that no statute or court order required Frazier to “admit guilt to the facts of 

the underlying charge”; that the trial court was not required to list every rule regulation or statute 

that would control when the DOC released inmates; and parole or conditional release was not a 

constitutional right.

The motion court further found that plea counsel had not failed to do anything that affected 

Frazier’s rights or prejudiced him; and Frazier failed to establish that but for any claimed error on 

the part of plea counsel, he would not have entered Alford pleas and would have insisted on going 

to trial. This appeal followed.

In two points on appeal, Frazier asserts the motion court clearly erred in denying his 

amended Rule 24.035 motion in that “his sentence is illegal because his parole is conditioned on 

an admission of guilt of the underlying offenses even though he entered an Alford plea;” and “plea 

counsel was ineffective for advising [] Frazier to enter Alford pleas despite knowing that he would 

have to admit guilt as a prerequisite for parole[.]”

 4 The motion court, in its findings, purported to quote “Section 489.040.2.” This appears to reflect a typographical 

error—section 589.040.2 is the correct statute, and states in relevant part:

All persons imprisoned by the department of corrections for sexual assault offenses shall be required 

to successfully complete the programs developed pursuant to subsection 1 of this section prior to 

being eligible for parole or conditional release.

All references to statutes are to RSMo 2000, unless otherwise indicated.
7

Standard of Review

This Court’s review of a motion court’s ruling on a Rule 24.035 motion for 

postconviction relief is limited to a determination of whether the findings and 

conclusions of the motion court are clearly erroneous. A motion court’s findings 

and conclusions are clearly erroneous if, after a review of the entire record, the 

court is left with the definite and firm impression that a mistake has been made.

Latham v. State, 554 S.W.3d 397, 401 (Mo. banc 2018) (internal quotations and citations omitted).

To be entitled to postconviction relief due to ineffective assistance of 

counsel, a movant must demonstrate that: (1) defense counsel failed to exercise the 

level of skill and diligence that a reasonably competent counsel would in a similar 

situation, and (2) he or she was prejudiced by that failure. . . . The prejudice 

requirement focuses on whether counsel’s constitutionally ineffective performance 

affected the outcome of the plea process. This requires the movant to show, but for 

the errors of counsel, he would not have pleaded guilty, and he would have insisted

on a trial. 

Ryan v. State, 547 S.W.3d 151, 154 (Mo. banc 2018) (internal quotations and citations omitted) 

(emphasis added).

Analysis

Point I: Legality of Frazier’s Sentences

Frazier argues that the motion court clearly erred in denying his amended Rule 24.035 

motion in that “his sentence is illegal because his parole is conditioned on an admission of guilt of 

the underlying offenses even though he entered an Alford plea.”5

 5 The sufficiency of the evidence supporting Frazier’s suggestion (necessary predicate to both his points in this appeal, 

and dispersed with gusto throughout both arguments) that he must admit guilt to the facts underlying his convictions 

in order to comply with MOSOP’s requirements is questionable based on the record before us. The record reflects 

that plea counsel testified at the motion hearing that he told Frazier “that in order to complete MOSOP, he would have 

to admit his guilt to the underlying criminal charges”—while this is certainly evidence of what plea counsel told 

Frazier, it is a stretch to say that this is evidence of MOSOP’s requirements (either now or at the time of Frazier’s 

pleas). Frazier’s brief directs us to the following passage from Spencer v. State, 334 S.W.3d 559 (Mo.App. W.D. 

2010): “[MOSOP] guidelines provide that successful completion of Phase I is dependent upon the offender’s 

acknowledgement and admittance of their sexual offense and a willingness to work toward personal change.” Id. at 

563 (internal quotation and citation omitted). For its part, the Western District took something of an arguendo

approach, merely recounting that appellant “allege[d] that the Board of Probation and Parole uniformly requires sexual 

offenders to complete the MoSOP before being considered for conditional release under § 558.011, or being awarded 

good-time credit under § 558.041.” Spencer, 334 S.W.3d at 563 (emphasis added). Even if the Western District 

accepted the appellant’s allegation as true, Spencer was issued close to nine years ago. While it is possible MOSOP 

policy was the same at the time of Spencer, Frazier’s pleas, and now, this court does not play oracle with idle 
8

“[W]hile most pleas of guilty consist of both a waiver of trial and an express admission of 

guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty.” 

North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 167, 27 L.Ed.2d 162 (1970). “An Alford

plea allows a defendant to plead guilty to a charged offense and accept criminal penalty even if he 

or she is unwilling or unable to admit to committing the acts constituting the offense.” Brooks v. 

State, 242 S.W.3d 705, 707 n.2 (Mo. banc 2008). Generally speaking (and as relevant here),6 the 

effect of an accepted Alford plea is the same as that of any other guilty plea: “An Alford plea . . . 

stands on equal footing with one in which an accused specifically admits the commission of the 

particular acts charged.” Wilson v. State, 813 S.W.2d 833, 843 (Mo. banc 1991) (internal 

quotation and citation omitted).7

Frazier argues that his sentence was illegal because (according to him) he must admit guilt 

to the facts underlying the two statutory sodomy convictions pursuant to MOSOP. We disagree.

“There is no constitutional or inherent right to early release from prison.” Rentschler v. 

Nixon, 311 S.W.3d 783, 786 (Mo. banc 2010) (internal quotation and citation omitted). 

Furthermore, “[a] prisoner does not have a protectable expectation of parole by virtue of the mere 

existence of a parole system.” Miller v. Missouri Dept. of Corrections, 436 S.W.3d 692, 699 

(Mo.App. W.D. 2014) (internal quotation and citation omitted). While “a state’s parole statute 

 possibilities. It was Frazier’s burden to adduce and persuade the motion court to credit the evidence necessary to 

prove his claims, and to provide this Court with a record reflecting such evidence (as well as directing us to it in his 

brief) on appeal. See Hall v. State, 528 S.W.3d 360, 361 n.1 (Mo. banc 2017). Nevertheless, it is unnecessary to 

dispose of Frazier’s appeal on this basis—for the reasons discussed more thoroughly elsewhere in this opinion, even 

if Frazier’s allegation accurately reflected current MOSOP policy, his claim would be unavailing. 

6 We observe some references in the case law to possible exceptions to this principle, whereby differential treatment

may exist between Alford pleas and other types of guilty pleas. See, e.g., Federhofer v. State, 462 S.W.3d 838, 843 

(Mo.App. E.D. 2015) (alluding to potential advantages and disadvantages of Alford pleas versus other guilty pleas in 

civil litigation). Nevertheless, such exceptions are inapplicable to the matters challenged in the instant appeal.

7 See O’Neal v. State, 236 S.W.3d 91, 95 (Mo.App. E.D. 2007) (“In reviewing a motion for post-conviction relief 

filed pursuant to Rule 24.035, an Alford plea is not treated differently from a guilty plea.”) (citation omitted).
9

may create a protected liberty interest in parole,”8 as applicable here, the Missouri statutory scheme 

governing parole creates no right, cognizable liberty interest, or protectable expectation as relevant 

to Frazier’s claim. See Winfrey v. Missouri Board of Probation and Parole, 521 S.W.3d 236, 

240-41 (Mo.App. W.D. 2017).9 

Section 217.690[10] creates no justifiable expectation of release, giving the Board 

almost unlimited discretion in whether to grant parole release. Section 217.690.1 

creates no protected liberty interest in parole release for due process purposes 

because the statute uses discretionary language, the board may in its discretion 

release or parole. Similarly, the regulations promulgated under the authority of 

section 217.690 do not create an interest in parole.

 

Miller, 436 S.W.3d at 699 (internal quotations and case citations omitted) (emphasis in original).

The DOC “has a statutory responsibility to rehabilitate imprisoned offenders serving 

sentencesfor sexual offenses.” Reynolds v. Missouri Board of Probation and Parole, 468 S.W.3d 

413, 419 (Mo.App. W.D. 2015) (emphasis added). That statutory responsibility derives, in 

relevant part, from section 589.040, which directs as follows:

1. The director of the department of corrections shall develop a program of 

treatment, education and rehabilitation for all imprisoned offenders who are 

serving sentences for sexual assault offenses. When developing such programs, 

the ultimate goal shall be the prevention of future sexual assaults by the participants 

in such programs, and the director shall utilize those concepts, services, programs, 

projects, facilities and other resources designed to achieve this goal.

 8 State ex rel. Cavallaro v. Groose, 908 S.W.2d 133, 134 (Mo. banc 1995). Even then, “[w]here the right exists only 

by state law, it is not protected by substantive due process and may constitutionally be rescinded so long as the 

elements of procedural due process are observed.” Rentschler, 311 S.W.3d 783 at 786 (internal quotations and 

citations omitted) (emphasis in original).

9 As Winfrey indicates, “[t]he plain language of [s]ection 217.690.4 clearly establishes that the Board [of Probation 

and Parole] has the authority to create eligibility requirements for parole.” 521 S.W.3d at 240. Further, “[i]t is clear 

from [section 589.040] that sexual offenders must complete a program developed by the Director of the Missouri 

Department of Corrections[,]” to be eligible for parole. Id. at 241. See also, State v. Cannafax, 344 S.W.3d 279, 

290-91 (Mo.App. S.D. 2011).

10 Section 217.690 sets forth the general responsibilities and procedures for the Board of Probation and Parole.
10

2. All persons imprisoned by the department of corrections for sexual assault 

offenses shall be required to successfully complete the programs developed 

pursuant to subsection 1 of this section prior to being eligible for parole or 

conditional release.

(Emphasis added).

Our courts have observed that the “DOC developed the MoSOP to comply with section 

589.040.” Reynolds, 468 S.W.3d at 419 (internal quotation and citation omitted); Spencer v. State, 

334 S.W.3d 559, 564 (Mo.App. W.D. 2010). “The Department of Corrections may require an 

offender to complete MOSOP as a condition of parole or conditional release. Further, the 

Department of Corrections has wide discretion in deciding on an inmate’s appropriate 

assignments.” Winfrey, 521 S.W.3d at 243. “With the exceptions of . . . mandatory minimum 

sentences, . . . offenders can be paroled virtually any[]time during their sentence at the discretion 

of the Parole Board under conditions set by the Board.” Cooper v. Holden, 189 S.W.3d 614, 618 

(Mo.App. W.D. 2006). “This also means that the Parole Board can deny parole to an offender 

throughout his or her entire sentence.” Id. Simply put, Frazier demonstrates no right, cognizable 

liberty interest, or protectable expectation in parole as relevant to his claim.

For all of the reasons, Frazier fails to demonstrate that the motion court clearly erred in 

denying his amended Rule 24.035 motion on the basis of the alleged illegality of his sentences. 

Point I is denied.

Point II: Plea Counsel Was Not Ineffective

Frazier argues that the motion court clearly erred in denying his amended Rule 24.035 

motion because “plea counsel was ineffective for advising [] Frazier to enter Alford pleas despite 

knowing that he would have to admit guilt as a prerequisite for parole[.]” Frazier suggests that 

“such affirmative misadvice prejudiced [] Frazier in that, had plea counsel not misadvised [] 

Frazier . . . [he] would not have pleaded guilty but would have instead insisted on going to trial.”
11

We observe the following salient passages from the motion court’s judgment, which guide 

and inform our review:

[Frazier] asserts that his plea attorney . . . was ineffective for advising [Frazier] to 

enter an Alford Plea where the terms of his probation included the completion of 

Missouri Sex Offender Program (MOSOP) which would require an admission of 

guilt to the facts of the offenses. He asserts that as a result of plea counsel’s 

ineffectiveness, his plea was unknowing and involuntary. However, the transcript

of the plea establishes that [Frazier] was clearly advised of the nature of an Alford 

plea and the consequences of the same. The sentencing judge . . . explained the 

background and circumstances of an Alford Plea. [Frazier] stated that he 

understood the meaning of an Alford Plea and that same is the type of plea he 

wanted to enter before the Court. Thereafter, the plea Court went into significant 

detail as to the constitutional rights of [Frazier] and that by entering this Alford Plea 

of Guilty, he was giving up those rights. The Court read to [Frazier] the charges 

set forth in both Count I and Count II. In response to both, when the Court ask

[Frazier] if that was the charge to which he wanted to enter an Alford Plea, he 

responded in the affirmative. When the Court further ask whether he was entering 

this Alford plea of his own free will, [Frazier] again responded in the affirmative. 

Finally, when the Court asked him if he was entering the Alford Plea because he 

believed it was in his best interest to do so, [Frazier] again responded in the 

affirmative.[11]

. . . .

Motion counsel asserts that the plea court attached a special condition that 

[Frazier] complete the MOSOP program. This is not correct. Motion counsel cites 

page 14 of the plea transcript as a basis for such assertion, but no such language 

exists on page 14 or anywhere else in the plea transcript.

(Citations to transcript omitted).

As our Supreme Court has indicated, “factual statements made by the defendant in the 

sentencing proceeding may later refute certain claims of ineffective assistance of counsel so long 

as the questions asked and the responses to them were specific enough to refute conclusively the 

movant’s allegations.” Ryan, 547 S.W.3d at 156 (internal quotations and citations omitted). The 

record reflects the following colloquy at Frazier’s plea hearing:

 11 The motion court’s recitation is supported by the record. 
12

THE COURT: Are these plea-agreement cases, [prosecutor]?

[PROSECUTOR]: Yes. The State’s agreed to recommend that the 

Defendant be sentenced to five years in the Department of Corrections in each 

count. That these sentences are to run consecutively. That the Court suspend 

execution of these sentences and place him on five years supervised probation. And 

as a condition of his probation, he have no contact with the victim in this case.

THE COURT: Mr. Frazier, you understand the prosecutor’s 

recommendation?

[FRAZIER]: Yes, sir.

THE COURT: And, do you understand that if the Court accepts these two 

Alford pleas here today, and, makes a finding of your guilt as to these two charges

and places you on probation, that you will be supervised by the Board of Probation 

and Parole as a sex offender --

[FRAZIER]: Yes, sir.

THE COURT: -- subject to certain requirements as a sex offender, such 

as registration and things of that nature?

[FRAZIER]: Yes, sir.

THE COURT: Now, Mr. Frazier, keeping all this in mind, are you asking 

the Court to accept your pleas pursuant to the Alford case to each of these two 

separate counts of statutory sodomy in the second degree here today, and to follow 

the prosecutor’s recommendation?

[FRAZIER]: Yes, sir.

(Emphasis added).

This record is sufficient to demonstrate that Frazier was informed by the plea court that he 

would be subject to the requirements of a sex offender—he admitted he understood. Assuming 

arguendo that Frazier’s claim is cognizable, it cannot succeed. Frazier cannot now claim that plea 

counsel was ineffective for misinforming or failing to inform him on these matters, where the plea 

court sufficiently advised him (and he admitted he understood) before accepting his plea. Ryan, 

547 S.W.3d at 156
13

Furthermore, the motion court credited plea counsel’s testimony that he discussed with 

Frazier the requirement that Frazier would need to admit guilt to complete MOSOP to be eligible 

for parole. We defer to the motion court’s credibility determinations,12 and this determination—

unchallenged and unaddressed by Frazier—is fatal to his challenge. 

Frazier’s claim would also fail because the record does not demonstrate that “but for the 

errors of [plea] counsel, [Frazier] would not have pleaded guilty, and he would have insisted on a 

trial.” Ryan, 547 S.W.3d at 154 (internal quotation and citation omitted) (emphasis added). The 

sole evidence adduced at the post-conviction hearing on that requirement was as follows:

[FRAZIER’S COUNSEL]: If you had known at the time of your plea, 

that if you went to prison, in order to get parole you would have to admit your guilt, 

would you have still made an Alford plea there?

[FRAZIER]: No, sir.

[FRAZIER’S COUNSEL]: Would you have pled guilty that day at all?

[FRAZIER]: No, sir.

[FRAZIER’S COUNSEL]: What would you have done instead?

[FRAZIER]: I would have waited and seen if they would offer a better deal 

or maybe took it to trial.

(Emphasis added).

This evidence—comprising a purely speculative hope for a better plea offer, and a posthoc vacillation that Frazier “maybe” would have taken the case to trial—is insufficient to support 

the prejudice requirement for ineffective assistance of plea counsel. Even if the trial court credited 

Frazier’s testimony13 that he “maybe” would have taken the case to trial, this does not transfigure 

 12 See McFadden v. State, 553 S.W.3d 289, 298 (Mo. banc 2018).

13 It is not entirely clear from the record whether the motion court credited this particular testimony. However, we 

need not parse the issue at length as Frazier’s claim would fail regardless of whether this testimony was credited or 

not.
14

into proof that Frazier “would have insisted on a trial,” as post-conviction relief requires. See 

Ryan, 547 S.W.3d at 154 (internal quotation and citation omitted) (emphasis added).

We also note that Frazier was under no obligation to seek or enter Alford pleas (or any 

manner of guilty plea). For that matter, the prosecutor was not obliged to consent to the Alford

pleas, and the trial court was not required to accept them.

14 Rather, the credited evidence reflects 

that Frazier sought and entered the pleas based (reasonably) on his appreciation of his own best 

interests, to wit: (1) obtaining suspended execution of sentences for two convictions of statutory 

sodomy in the second degree, notwithstanding the fact that Frazier reported prior convictions for 

“six to maybe eight prior drug offenses,” “a third degree assault one time” and a “[failure to pay] 

child support”; (2) Frazier’s father was dying at the time these charges were pending, and Frazier 

wished to be free on probation to spend time with his father instead of being confined in prison; 

(3) Frazier did not wish to admit the facts underlying the charges at issue; and (4) the State agreed 

to reduce the charges from two counts of statutory sodomy in the first degree (for which the 

authorized sentence was “life imprisonment or a term of years not less than five years[]”),

15 to 

two counts of statutory sodomy in the second degree (for which the authorized sentence was “a 

term of years not to exceed seven years[]”).16 (Emphasis added).

Frazier obtained these benefits in exchange for entering Alford pleas. However, at the 

October 27, 2015 probation revocation hearing, the trial court recited (and Frazier agreed) that 

Frazier violated the terms of his probation when he “went to the state of Arkansas without notifying 

 14 See State v. Banks, 135 S.W.3d 497, 500 (Mo.App. W.D. 2004); see also, State v. Williams, 937 S.W.2d 330, 333-

34 (Mo.App. E.D. 1996) (“the Supreme Court of the United States, in Alford, made it clear that a defendant has no 

constitutional right to have a guilty plea accepted, whether or not it is made pursuant to Alford.”).

15 Section 566.062, RSMo Cum.Supp. (2006) (emphasis added).

16 Sections 558.011.1(3), RSMo Cum.Supp. (2003), and 566.064 (1994).
15

[his] probation officer,” and that he “actually committed a new offense of possession of a 

controlled substance, in the state of Arkansas while on probation[.]”17 Frazier’s probation was 

revoked, and his sentences were executed. The terms of his parole eligibility are in accord with 

any other person convicted, sentenced, and imprisoned for two counts of statutory sodomy in the 

second degree.

18

Frazier fails to demonstrate that the motion court clearly erred in denying his amended 

Rule 24.035 motion for post-conviction relief based on Frazier’s allegation of ineffective 

assistance of counsel. Point II is denied.

The judgment of the motion court is affirmed.

WILLIAM W. FRANCIS, JR., P.J. - OPINION AUTHOR

DANIEL E. SCOTT, J. - CONCURS

MARY W. SHEFFIELD, J. - CONCURS

 17 See Winfrey, 521 S.W.3d at 241 (“[D]rug violations are not minor violations in the eyes of the law, particularly for 

someone who has been given the early opportunity for freedom[.]”).

18 As section 589.040.2 indicates, “[a]ll persons imprisoned by the department of corrections for sexual assault 

offenses shall be required to complete” MOSOP. (Emphasis added).