Moore v. State

772 S.W.2d 704, 1989 Mo. App. LEXIS 517, 1989 WL 36656

• Court: Missouri Court of Appeals
• Decided: April 18, 1989
• Docket: No. 54951
• Status: Published

Opinion

CRANDALL, Presiding Judge.

Movant, James Moore, appeals from the denial of Rule 27.26¹ relief following an evidentiary hearing. Movant previously had pleaded guilty to first degree burglary, forcible sodomy, and two counts of forcible rape. He was sentenced to consecutive terms of imprisonment totalling 45 years. We affirm.

Movant argues, in his sole point on appeal, that the motion court erred in denying him post-conviction relief because his trial counsel was ineffective in failing to depose the victim and in failing to investigate the State’s fingerprint evidence.

The record of the evidentiary hearing refutes movant’s allegations. Movant’s trial counsel testified at the evidentiary hearing that movant had always expressed a desire to plead guilty and was apparently only concerned about the length of imprisonment under the plea agreement. Trial counsel testified that she did not depose the victim because movant never gave any indication that he wanted to go to trial.

Assessing the credibility of the witnesses was for the motion court. Caraker v. State, 712 S.W.2d 23, 24 (Mo.App.1986). The motion court, as the trier of fact, permissibly chose to believe the testimony of movant’s trial counsel. Furthermore, mov-ant failed to meet his burden of showing any prejudice resulting from his trial counsel’s actions. See Richardson v. State, 719 S.W.2d 912, 915-916 (Mo.App.1986).

Additionally, movant’s trial counsel testified at the evidentiary hearing that she investigated the fingerprint evidence. Although movant contended that the fingerprints found in the victim’s home were not his own, movant admitted at the guilty plea hearing that he committed the crimes charged. Therefore, movant failed to prove any prejudice. See Id. The judgment of the motion court is not clearly erroneous. Movant’s point is denied.

The judgment of the motion court is affirmed.

CRIST and DOWD, JJ., concur.

1 . Rule 27.26 was repealed, effective January 1, 1988, by order of the Supreme Court of Missouri. Rule 24.035 is the new rule effective January 1, 1988. This appeal is governed by Rule 27.26 because the sentence was pronounced prior to January 1, 1988, and movant’s Rule 27.26 motion was then pending.