Smith v. State

837 S.W.2d 25, 1992 Mo. App. LEXIS 1366, 1992 WL 196580
Missouri Court of Appeals·Decided August 18, 1992·No. No. WD 44850·Published·Cited by 11 cases

Opinion

HANNA, Presiding Judge.

Movant, Harry E. Smith, was convicted in a court tried case on two counts of forcible sodomy, one count of second degree assault and one count of felonious restraint. This court affirmed movant’s convictions on direct appeal in a Memorandum Opinion issued August 12, 1986. State v. Smith, 718 S.W.2d 521 (Mo.App.1986). Movant filed a timely pro se Rule 29.15 motion for post-conviction relief on May 10, 1988. The motion court appointed counsel to represent movant on May 17, 1988, and an amended motion was filed on movant’s behalf on October 24, 1988. The motion court held an evidentiary hearing on May 18, 1989, which consisted solely of the movant’s testimony. The motion court denied the 29.15 motion and entered findings of fact and conclusions of law on April 15, 1991. On June 20, 1991, movant filed a timely notice of appeal with this court.

First, movant claims the motion court erred in failing to enter specific findings of fact and conclusions of law concerning all issues raised by him in his motion for post-conviction relief and at his eviden-tiary hearing. He specifically contends the motion court did not enter sufficient findings responsive to his charges, that his trial counsel failed to raise the issue of improper venue, failed to suppress certain physical evidence and his attorney’s incomplete advice on the crime of sodomy causing him to make an uninformed waiver of a jury trial. There is no precise formula which must be followed in complying with Rule 29.15(i) and findings and conclusions are sufficient so long as they allow an appellate court to review the motion court’s decision. State v. Hamilton, 817 S.W.2d 8, 11 (Mo.App.1991). The findings and conclusions do not need to be itemized, but rather need only be responsive to the issues raised. Id.

On the specific issues raised by movant, the motion court made the following find-inSs:

FINDINGS OF FACT
3. No evidence was adduced at the May 18, 1989, hearing regarding (a), counsel’s failure to raise the issue of improper venue. That point being abandoned at the hearing, it is accordingly DENIED.
5. Movant’s counsel successfully kept the incriminating evidence which was obtained by “police harassment” from the Court’s consideration. Therefore, point (c) is accordingly DENIED.
CONCLUSIONS OF LAW
3. The Court has examined Movant’s Motion, reconsidered the evidence, and considered the testimony of Robert A. Simons, attorney for the Movant. Movant’s contention is that he received ineffective assistance of counsel in part because he accepted advice and voluntarily waived his right to trial by jury. That trial strategy, even though unsuccessful, is not justification to grant a new trial.... Furthermore, testimony by Mr. Simons strongly supported the decision to try the case before an unemotional and seasoned jurist.
4. Movant raises an illegal search and seizure claim. The trial Court’s ruling on an illegal search and seizure issue could have been raised on direct appeal, and, thus, is not cognizable in Rule 29.15 proceedings.

The three issues raised by movant on this appeal, i.e., improper venue, counsel’s failure to suppress physical evidence and appellant’s waiver of a jury trial, were all addressed by the motion court in its [27] findings of fact and conclusions of law. The motion court was responsive to the issues raised by movant and it’s findings were sufficient to allow appellate review. Id. Movant’s first point is denied.

In his second point movant alleges the motion court erred in failing to recuse itself sua sponte based upon a demonstrable bias against appellant. Movant raises this issue for the first time on appeal and requests plain error review on the point. Because movant failed to call the issue to the attention of the motion court and because of his failure to object at any time during the evidentiary hearing, we find he has waived this claim on appeal. State v. Berry, 798 S.W.2d 491, 495 (Mo.App.1990).

For his third point movant contends the motion court committed plain error by refusing to grant post-conviction relief based on the excessive delay in processing his 29.15 motion. Again, the issue was not raised to the motion court, although the supplemental record indicates that mov-ant’s counsel contacted the court by letter on several occasions and requested a ruling on the motion. In any event, Rule 29.15 does not contain an enforcement mechanism to assure compliance by the motion court with the decision-making schedule. See King v. State, 772 S.W.2d 6, 7 (Mo.App.1989). The movant’s remedy for the motion court’s failure to render a timely decision is a writ to compel compliance. Id. There is no record of movant having filed any such writ, and he does not assert that he attempted this procedure. As the motion court ultimately made its decision, albeit late, no relief is available at this time. Id. Movant’s third point is denied.

Finally, movant asserts the motion court erred in denying his 29.15 motion on the merits of the issues raised at the evidentia-ry hearing. Specifically he claims his trial counsel was ineffective for misinforming him regarding the elements of the sodomy charges and for failing to object to improper venue.

Appellate review of the denial of a post-conviction motion is limited to a determination of whether the findings of fact, conclusions of law and judgment issued by the motion court are clearly erroneous. State v. Vinson, 800 S.W.2d 444, 448 (Mo. banc 1990). Findings of fact and conclusions of law are clearly erroneous only if, after a review of the entire record, the appellate court is left with the definite and firm impression that a mistake has been made. Id. In order to prevail on a claim of ineffective assistance of counsel, movant must establish 1) that his trial attorney’s performance was deficient in that he failed to exercise the customary skill and diligence a reasonably competent attorney would perform under similar circumstances and 2) that the attorney’s deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). A movant must satisfy both prongs of the Strickland test in order to prevail on an ineffective assistance of counsel claim. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987). Allegations of ineffective assistance of counsel relating to matters of “trial strategy” do not provide a basis for post-conviction relief. Rainwater v. State, 770 S.W.2d 368, 370 (Mo.App.1989).

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Smith v. State, 837 S.W.2d 25, 1992 Mo. App. LEXIS 1366, 1992 WL 196580 (Mo. Ct. App. 1992).

837 S.W.2d 25 (Smith v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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