Moore v. State

526 S.W.3d 351, 2017 WL 3597081, 2017 Mo. App. LEXIS 797
CourtMissouri Court of Appeals
DecidedAugust 22, 2017
DocketNo. ED 104808
StatusPublished

This text of 526 S.W.3d 351 (Moore 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
Moore v. State, 526 S.W.3d 351, 2017 WL 3597081, 2017 Mo. App. LEXIS 797 (Mo. Ct. App. 2017).

Opinion

OPINION

Mary K Hoff, Judge

Charles K. Moore (“Movant”) appeals from the motion court’s “Findings of Fact, Conclusions of Law, and Judgment” (“Judgment”) denying his Rule 29.15 motion without an evidentiary hearing. We reverse and remand.

Factual and Procedural Background

In 2010, following a jury trial, Movant was convicted of second-degree assault of a probation or parole officer, in violation of [353]*353Section 565.082, RSMo 2000.1 The trial court later sentenced Movant as a persistent felony offender to fifteen years’ imprisonment. Movant appealed his conviction and sentence to this Court, which issued its per curiam order and memorandum in State v. Moore, 362 S.W.3d 509 (Mo. App. E.D. 2012), affirming Movant’s conviction. The mandate issued on April 18, 2012.

On June 20, 2012, Movant timely filed his pro se Rule 29.15 motion, and on the same day the motion court appointed counsel to represent Movant.

Appointed counsel untimely filed Mov-ant’s amended motion and request for evi-dentiary hearing on or about September 18, 2012, in which he alleged that his trial attorneys were ineffective for (1) filing a motion for an automatic change of judge and then withdrawing it against his wishes; and (2) fading to seek a change of judge because the judge presiding over his trial previously worked as a prosecuting attorney and was “involved” in a prior robbery prosecution of him in 1998.

On December 10, 2012, the motion court denied Movant’s Rule 29.15 motion without an evidentiary hearing. Movant appealed, and, on April 14, 2015, the Missouri Supreme Court reversed and remanded Mov-ant’s cause for an independent inquiry into whether Movant was abandoned by post-conviction counsel. Moore v. State, 458 S.W.3d 822, 825-26 (Mo. banc 2015).

On June 4, 2015, post-conviction counsel filed a motion requesting that the motion court permit the untimely amended motion and alleged that the amended motion was untimely because “counsel or someone in counsel’s office” failed to request an extension of time and that “Movant played no role in the amended motion filing date calculation, and any late filing was due to counsel.”

On June 5, 2015, the motion court conducted its inquiry, and post-conviction counsel reiterated that she was at fault for the untimely filing. The motion court found that “it was not Movant’s fault” that an extension was not requested and that it “was counsel’s fault,” thereby reviving the amended motion.

On July 20, 2016, the motion court again denied Movant’s amended motion. The motion court stated that it was denying Mov-ant’s motion “for the same reasons enunciated in December 2012” and restating the findings of fact and conclusions of law from the December 20, 2012 judgment in their “entirety.”

In its 2012 judgment, the motion court found that the trial court had asked Mov-ant at sentencing about his allegation that he wanted the judge disqualified. The motion court observed that defense counsel had stated at sentencing that the motion for change of judge had been withdrawn. Indeed, the sentencing transcript reflects that defense counsel stated: “At the time that [Movant’s first attorney] talked to him she indicated in the file that he did not request a change of judge.” The motion court then found that its own file indicated that “the motion to withdraw [sic] was withdrawn in [Movant’s] presence and with his consent in open court September 3, 2010.” A docket entry on that date indicated that Movant was present in court, and it stated, “Defendant’s Motion to Withdraw, Motion for Change of Judge, sustained.” The motion court also found that Movant had failed “to allege prejudice sufficient to trigger relief.” The motion court observed that “cases have repeatedly held that simply because a trial judge may have received knowledge of facts through prior [354]*354court hearings involving the defendant, the judge need not disqualify themselves for cause.” The motion court concluded that Movant had not alleged “any objective facts that would necessitate disqualification.” This appeal follows.

Additional facts, pertinent to the points on appeal will be adduced as necessary in the discussion section below.

Standard of Review

Appellate review of the motion court’s denial of a Rule 29.15 motion is limited to a determination of whether the findings and conclusions of,the motion court are. clearly erroneous. Rule 29.15(k). Findings and conclusions are clearly erroneous only if a full review of the record definitely and firmly reveals that a mistake was made. Forrest v. State, 290 S.W.3d 704, 708 (Mo. banc 2009).

To be entitled to an evidentiary hearing, Movant must: (1) allege facts,' not conclusions, that would warrant 'relief if true; (2) these facts must raise matters not refuted by the record and files in the case; and (3) the matters complained of must have resulted in prejudice to Movant. Barnett v. State, 103 S.W.3d 765, 769 (Mo. banc 2003). If the files and records of the case conclusively show that Movant is not entitled to any relief, no evidentiary hearing is required. Rule 29.15(h); Barnett, 103 S.W.3d at 769.

To prevail on a claim of ineffective assistance of counsel, a movant must establish by a preponderance of.the evidence: (1) that trial counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances; and (2) that counsel’s deficient performance prejudiced defendant. Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006) (citing Strickland v. Washington, 466 U.S. 668, 687-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). We “presume[] that counsel’s conduct was reasonable and effective,” and that any challenged action was part of counsel’s reasonable trial strategy. Anderson, 196 S.W.3d at 33. A movant must satisfy both prongs of this test, , and should the movant fail to establish either the performance or prejudice prong, we need not consider the other. Smith v. State, 276 S.W.3d 314, 317 (Mo. App. E.D. 2008).

Discussion

Movant raises two points on appeal. Because both points address a failure to move for a change of judge, we address them together...

With respect to Point'!, Movant argues that the motion court erred in denying his Rule' 29.15 motion because he pleaded facts, not refuted by the record, that entitle him to relief on his claim that counsel was ineffective for unreasonably withdrawing a' charige-of-judge motion against Movant’s wishes and-that he was thereby prejudiced.

In his amended motion, Movant alleged he told trial counsel that he wanted a change of judge because, “Judge Martinez had been involved in prosecuting his 1998 robbery- case out of Washington County (CR1098-3FX).”- He alleged that despite his wishes, on September .3, 2010, trial counsel filed a motion for change of judge and then withdrew the motion the same day.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
Smith v. State
276 S.W.3d 314 (Missouri Court of Appeals, 2008)
Barnett v. State
103 S.W.3d 765 (Supreme Court of Missouri, 2003)
Anderson v. State
196 S.W.3d 28 (Supreme Court of Missouri, 2006)
State v. Driver
912 S.W.2d 52 (Supreme Court of Missouri, 1995)
Forrest v. State
290 S.W.3d 704 (Supreme Court of Missouri, 2009)
State v. Moore
362 S.W.3d 509 (Missouri Court of Appeals, 2012)
Charles K. Moore v. State of Missouri
458 S.W.3d 822 (Supreme Court of Missouri, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
526 S.W.3d 351, 2017 WL 3597081, 2017 Mo. App. LEXIS 797, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moore-v-state-moctapp-2017.