Bode v. State Of Mo., WD 70311.

• Decision Date: 31 August 2010
• Docket Number: No. WD 70311.,WD 70311.
• Citation: 316 S.W.3d 406
• Parties: Matthew L. BODE, Appellant,v.STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

316 S.W.3d 406

Missouri Court of Appeals,
Western District.

Matthew L. BODE, Appellant,
v.
STATE of Missouri, Respondent.

No. WD 70311.

April 27, 2010.
Application for Transfer Denied

Aug. 31, 2010.

316 S.W.3d 407

COPYRIGHT MATERIAL OMITTED

316 S.W.3d 408

S. Kate Webber, for Appellant.

Daniel N. McPherson, for Respondent.

Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and JAMES E. WELSH, Judge.

JOSEPH M. ELLIS, Judge.

Mathew Bode appeals from the denial of his Rule 29.15 motion for post-conviction relief by the Circuit Court of Platte County. For the foregoing reasons, the motion court's decision is reversed in part.

Appellant was tried by jury and convicted of one count of robbery in the first degree, § 569.020; ¹ one count of armed criminal action, § 571.015; and one count of possession of a controlled substance (cocaine base), § 195.202. Appellant was subsequently sentenced as a prior and persistent offender to consecutive terms of twenty years imprisonment on the robbery count, ten years on the armed criminal action count, and seven years on the possession count. Appellant's convictions and sentences were affirmed by this Court on direct appeal. State v. Bode, 221 S.W.3d 479, 479-80 (Mo.App. W.D.2007).

Appellant filed a timely pro se motion for post-conviction relief under Rule 29.15. An amended motion was subsequently filed by appointed counsel. Following an evidentiary hearing, the motion court denied Appellant's motion. Appellant brings three points on appeal.

“Our review of the motion court's denial of a Rule 29.15 motion is limited to determining whether the findings and conclusions of the motion court are clearly erroneous.” Stiers v. State, 229 S.W.3d 257, 260 (Mo.App. W.D.2007) (citing Rule 29.15(k)). “A judgment is clearly erroneous when, in light of the entire record, the court is left with the definite and firm impression that a mistake has been made.” Storey v. State, 175 S.W.3d 116, 125 (Mo. banc 2005) (internal quotation omitted).

“To prevail on an ineffective assistance of counsel claim, [Appellant] must show that (1) trial counsel's performance was deficient in that he failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances and (2) the deficient performance prejudiced [Appellant].” State v. Rich, 950 S.W.2d 337, 339 (Mo.App. W.D.1997) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). “To establish ineffectiveness, a defendant must show that counsel's representation fell below an objective standard of reasonableness.” Storey, 175 S.W.3d at 125 (internal quotation omitted). “ ‘We presume counsel to be competent, requiring proof to the contrary by a preponderance of the evidence.’ ” Stiers, 229 S.W.3d at 260 (quoting State v. Taylor, 929 S.W.2d 209, 224 (Mo. banc 1996)). “As to prejudice, a claimant must demonstrate prejudice by showing that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different.” James v. State, 222 S.W.3d 302, 304 (Mo.App. W.D.2007) (internal quotation omitted). “Appellant must establish both the performance and prejudice prongs of this test in order to prevail on a

316 S.W.3d 409

claim of ineffective assistance, and if he fails to satisfy either prong, we need not consider the other.” Id.

In his first point, Appellant claims that the motion court clearly erred in concluding that counsel was not ineffective for refusing to allow Appellant to testify in his own defense. Appellant argues that the record demonstrates that he did not knowingly waive his right to testify and that counsel refused to allow him to testify. He further contends that prejudice must be presumed as resulting from counsel's failure to allow him to testify.

In making this argument, Appellant views the evidence presented at the evidentiary hearing and inferences drawn therefrom in the light most favorable to himself. While Appellant testified that counsel failed to fully explain his right to testify and that counsel rested his case despite Appellant's requests that he be allowed to testify, the trial court was not required to accept any of that testimony as credible. Slater v. State, 147 S.W.3d 97, 101 (Mo.App. W.D.2004). Contrary to Appellant's testimony, Counsel testified that, while he could not recall his specific discussion with Appellant, he normally explains to all his clients the pros and cons of testifying and that he was sure he had discussed the possibility of testifying with Appellant. Counsel further stated that he likely discussed the fact that Appellant's prior convictions would almost certainly be placed into evidence if he testified and that he probably advised Appellant against testifying for that reason. Counsel said that the ultimate decision whether to testify or not had rested with Appellant.² Viewing the record in accordance with our standard of review, the motion court did not clearly err in finding that Appellant had failed to prove his claims.

Moreover, Appellant wholly failed to prove that he sustained any prejudice as a result of counsel not calling him to testify in his own defense. Contrary to Appellant's contention on appeal, to be entitled to any relief, he was required to prove that he suffered prejudice as a result of counsel's failure to present Appellant's testimony at trial. See Williams v. State, 205 S.W.3d 300, 314-15 (Mo.App. W.D.2006); Lawrence v. State, 160 S.W.3d 825, 831 (Mo.App. S.D.2005). At the evidentiary hearing, Appellant did not describe, in any fashion, what his testimony would have been had he testified at trial. Accordingly, the motion court had no means of assessing whether Appellant's testimony would have aided or been detrimental to Appellant's case. The motion court properly found that the record did not establish that, but for counsel's failure to call Appellant to testify, the result of the proceeding would have been different. James, 222 S.W.3d at 304. Point denied.

In his second point, Appellant claims that the motion court clearly erred in finding that counsel was not ineffective for failing to obtain a mental evaluation of Appellant. He...