State v. Allen

954 S.W.2d 414, 1997 Mo. App. LEXIS 1441, 1997 WL 454317
Missouri Court of Appeals·Decided August 12, 1997·No. Nos. 69709, 71364·Published·Cited by 14 cases

Opinions

REINUARD, Presiding Judge.

Defendant appeals after he was convicted by a jury of three counts of first degree robbery (Counts I, V, and VI), section [416]*416569.020, RSMo 19941 and one count of first degree assault (Count II), section 565.050. The court found defendant to be a prior and persistent offender and sentenced him to the following prison terms: life for Count I to run concurrently with a thirty year term for Count II; life for Count V to run consecutively to Counts I and II; and life for Count VI to run consecutively to Count V. Defendant also appeals the denial, without an evi-dentiary hearing, of his Rule 29.15 motion for post-conviction relief. We affirm the judgment as to defendant’s conviction and sentence. We reverse the judgment as to defendant’s Rule 29.15 motion and remand the cause for an evidentiary hearing.

Defendant and Sandra Krausz forcibly stole property from three separate victims on July 9, 1994, August 1, 1994, and August 6, 1994. During the robberies, defendant used or threatened the use of a deadly weapon or what appeared to be a deadly weapon. Defendant also assaulted the victim on July 9 by striking the victim’s cheek and jaw with a hammer clenched in his fist.

On appeal, defendant argues that the trial court erred when it “denied [defendant’s] Batson motion, because the state used its peremptory challenges to strike black venire-persons solely because of their race.”

A prosecutor may not strike a potential juror based upon that person’s race. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The United States Supreme Court has established a three-step analysis for Batson challenges:

Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination.

Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 1770-71, 131 L.Ed.2d 834, 839 (1995). The prosecutor’s explanations need not rise to the level justifying exercise of a challenge for cause, Batson, 476 U.S. at 97, 106 S.Ct. at 1723, and unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason will be deemed race neutral. Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991).

A reviewing court will set aside a trial court’s finding as to whether the prosecutor discriminated in the exercise of his peremptory challenges only if it is clearly erroneous. State v. Blankenship, 830 S.W.2d 1, 15 (Mo. banc 1992). A finding is clearly erroneous if the reviewing court is left with a definite and firm impression that a mistake has been made. State v. Ramsey, 864 S.W.2d 320, 334-35 (Mo. banc 1993), cert. denied, 511 U.S. 1078, 114 S.Ct. 1664, 128 L.Ed.2d 380 (1994). In determining whether the trial court’s finding was clearly erroneous, this court must give great deference to the trial court’s finding. State v. Antwine, 743 S.W.2d 51, 66 (Mo. banc 1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988).

After reviewing the record, we find that the trial court did not err.

Defendant also contends that the motion court clearly erred when it denied defendant’s motion for post-conviction relief. Defendant alleges:

The motion court’s judgment denying [defendant] posteonviction relief without an evidentiary hearing, was clearly erroneous because [defendant] pled facts which, if true, would have entitled him to relief and those facts were not refuted by the record. [Defendant] was denied due process of law and the effective assistance of counsel, in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, sections 10 and 18(a) of the Missouri Constitution, when the court proceeded to trial against him on October 2, 1995 because the court lacked jurisdiction since [defendant] had filed a request for disposition of detainers and the 180-day limitation period had expired before the trial began.

[417] Defendant did not raise this issue in either his motion for new trial or his direct appeal.

Our review is limited to determining whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 29.15; Brummell v. State, 770 S.W.2d 379, 380 (Mo.App. E.D.1989). Such findings and conclusions will be found clearly erroneous only if a review of the entire record leaves this court with a definite and firm impression that a mistake has been made. Id. To be entitled to an evidentiary hearing, a movant must cite facts not conclusions, which, if true, would warrant relief; the factual allegations must not be refuted by the record; and the matters complained of must have prejudiced the movant. State v. Blankenship, 830 S.W.2d 1, 16 (Mo. banc 1992).

To prevail on a claim of ineffective assistance of counsel, a movant must show, by a preponderance of the evidence, that counsel’s performance was deficient and that the deficient performance prejudiced mov-ant’s defense. State v. Henderson, 826 S.W.2d 371, 377-78 (Mo.App. E.D.1992) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)). To prove deficient performance, a movant must show that counsel’s acts or omissions were outside the range of professionally competent assistance. Henderson, 826 S.W.2d at 378. Prejudice exists when there is a reasonable probability that but for counsel’s errors, the result of the proceeding would have been different. Id. If a movant fails to show either deficient performance or prejudice, the court need not address the other component. State v. Mueller, 872 S.W.2d 559, 566 (Mo.App.E.D.1994).

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State v. Allen, 954 S.W.2d 414, 1997 Mo. App. LEXIS 1441, 1997 WL 454317 (Mo. Ct. App. 1997).

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