Ivory v. State

422 S.W.3d 503, 2014 WL 535807, 2014 Mo. App. LEXIS 127
CourtMissouri Court of Appeals
DecidedFebruary 11, 2014
DocketNo. ED 99916
StatusPublished
Cited by3 cases

This text of 422 S.W.3d 503 (Ivory v. State) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ivory v. State, 422 S.W.3d 503, 2014 WL 535807, 2014 Mo. App. LEXIS 127 (Mo. Ct. App. 2014).

Opinion

OPINION

MARY K HOFF, Presiding Judge.

Christopher J. Ivory (Movant) appeals from the motion court’s Findings of Fact, Conclusions of Law, and Judgment (Judgment) denying his Rule 29.15 Amended Motion to Vacate, Set Aside, or Correct Judgment and Sentence and Request for Evidentiary Hearing (PCR Motion), alleging ineffective assistance of appellate counsel. We affirm.

Factual and Procedural Background

In the underlying case, Movant, representing himself pro se but with a public defender present as standby counsel, was convicted of attempted forcible rape, Section 566.030 1, kidnapping, Section 565.110, and stealing from a person, Section [505]*505570.030. At trial, Movant testified on his own behalf. On cross-examination, the prosecutor asked Movant why all of the State’s witnesses, none of whom knew the defendant, would get together “to put a case against” him. Movant’s objection to speculation was overruled, and Movant answered that people were “making this up” and that “everything ain’t always what it appear.” The prosecutor then responded, “You probably weren’t what you appeared when you first talked to [victim]. She probably thought you were a nice guy, didn’t she?” Movant’s objection to the question being argumentative was overruled, and the prosecutor followed up by saying, “You probably did not appear to be the ‘monster’ you turned into when you first said hi to [victim], did you?” Without any objection, Movant answered, “That’s not true.”

The jury subsequently found Movant guilty beyond a reasonable doubt, and the trial court sentenced Movant to consecutive terms of thirty years, fifteen years, and seven years imprisonment. Movant appealed this conviction and sentence on four points, alleging that the trial court had plainly erred in (1) allowing Movant to waive counsel and proceed pro se, (2) overruling Movant’s motion for judgment of acquittal with respect to the attempted forcible rape charge, (3) refusing to give Movant’s instruction to the jury on a lesser included offense of false imprisonment, and (4) permitting the prosecutor to comment, question, and argue Movant’s decision to self-represent. This Court affirmed Movant’s conviction on direct appeal. State v. Ivory, 383 S.W.3d 21 (Mo.App.E.D.2012).

Movant subsequently filed his PCR Motion alleging that his appellate counsel rendered ineffective assistance by failing to raise a claim on direct appeal that the trial court erred in failing to sustain his objections based on speculation and as argumentative and that Movant was denied his rights to due process and a fair trial based on prosecutorial misconduct at trial. Mov-ant requested an evidentiary hearing. The motion court denied Movant’s request for an evidentiary hearing and issued its Judgment denying Movant’s PCR Motion on the grounds that the issues were not preserved for appeal and, furthermore, were not meritorious. This appeal followed. Additional facts will be discussed as necessary to our analysis of the issues on appeal.

Standard of Review

The motion court’s findings of fact and conclusions of law are presumed correct, and the movant bears a heavy burden of overcoming that presumption by a preponderance of the evidence. Worthington v. State, 166 S.W.3d 566, 572 (Mo. banc 2005); State v. Tokar, 918 S.W.2d 753, 761 (Mo. banc 1996). Furthermore, an evidentiary hearing on a claim for post-conviction relief is not warranted unless: “1) the movant pleads facts that if true would warrant relief; 2) the facts alleged are not refuted by the record; and 3) the matter complained of resulted in prejudice to the movant.” Elverum v. State, 232 S.W.3d 710, 714 (Mo.App.E.D.2007); Teer v. State, 198 S.W.3d 667, 669 (Mo.App.E.D.2006). Our review of the motion court’s denial of a PCR Motion is limited to a determination of whether its findings and conclusions are clearly erroneous. Rule 29.15(k); Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000). The motion court’s decisions are clearly erroneous only if, after reviewing the entire record, we are left with the definite and firm impression that a mistake has been made. Teer, 198 S.W.3d at 669.

Ineffective Assistance of Appellate Counsel

In his first point on appeal, Movant claims the motion court erred in denying [506]*506his PCR Motion without an evidentiary hearing because appellate counsel was ineffective for failing to raise on appeal the trial court’s overruling of his objections to questions by the prosecuting attorney during cross-examination “forcing him to speculate about why all of the witnesses put this case on him and calling him a monster.” We disagree.

To prevail on a claim of ineffective assistance of counsel, the movant must prove both prongs of the Strickland test: 1) counsel’s performance did not meet the standard skill or diligence that would be expected of a reasonably competent attorney in a similar situation; and 2) because of counsel’s deficient performance, movant was prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009). Failure to prove either prong is fatal to the claim, and once one prong has failed, the reviewing court need not continue its analysis. State v. Nunley, 980 S.W.2d 290, 292 (Mo. banc 1998); Barnes v. State, 334 S.W.3d 717, 721 (Mo.App.E.D.2011). Moreover, there must be strong grounds that the claimed error the movant’s counsel is alleged to have made was so obvious that a competent attorney would have recognized it and that it now requires reversal on appeal. Nicklasson v. State, 105 S.W.3d 482, 486 (Mo. banc 2003); Middleton v. State, 80 S.W.3d 799, 808 (Mo. banc 2002).

Here, in denying Movant’s claim and request for an evidentiary hearing, the motion court found that Movant did not raise the issue in his motion for a new trial and so the issue was not preserved for appeal. Appellate counsel is not deemed ineffective for failing to raise an unpre-served error on appeal, Melillo v. State, 380 S.W.3d 617, 623 (Mo.App.S.D.2012), or for failing to preserve an issue on appeal, McLaughlin v. State, 378 S.W.3d 328, 354 (Mo. banc 2012). Furthermore, the motion court found that Movant’s complaint regarding the prosecutor’s questioning lacked merit. The court reasoned that

Movant was not a credible witness at his trial, and he invited the questioning of which he complains. [...

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Cite This Page — Counsel Stack

Bluebook (online)
422 S.W.3d 503, 2014 WL 535807, 2014 Mo. App. LEXIS 127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ivory-v-state-moctapp-2014.