Hayes v. State

• Decision Date: 15 December 2009
• Docket Number: No. WD 70231.,WD 70231.
• Citation: 301 S.W.3d 542
• Parties: Orlando D. HAYES, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

301 S.W.3d 542

Orlando D. HAYES, Appellant, v. STATE of Missouri, Respondent.

No. WD 70231.

Missouri Court of Appeals, Western District.

December 15, 2009.

Motion for Rehearing and/or Transfer to Supreme Court Denied February 2, 2010.

Mark A. Grothoff, Assistant State Public Defender, Columbia, MO, for Appellant.

Chris Koster, Attorney General, Daniel N. McPherson, Assistant Attorney General, Jefferson City, MO, for Respondent.

Before Division III: MARK D. PFEIFFER, Presiding Judge, and KAREN KING MITCHELL and CYNTHIA L. MARTIN, Judges.

MARK D. PFEIFFER, Presiding Judge.

Orlando D. Hayes (Hayes) appeals the trial court's order denying his Rule 29.15¹ motion in which he alleged that he received ineffective assistance of trial counsel and appellate counsel. On appeal, he presents one point in which he claims that the motion court erred in overruling his Rule 29.15 motion because the record at the evidentiary hearing established that his trial counsel was ineffective for failing to file a motion to dismiss the kidnapping charge in Howard County, which was later transferred to Cooper County, on the basis that, pursuant to Rule 23.10, both Howard County and Cooper County lacked jurisdiction over him.

Hayes and the victim dated from 1998 to 2004. During this time, they lived in either Columbia or St. Louis. They also had one child together. In 2004, they broke off their relationship and the victim moved to Kansas City.

On June 11, 2004, Hayes traveled to Kansas City to abduct the victim. He broke into her house and found the victim sleeping in her bedroom. He woke her and taped her arms and legs together. He also hit her in the head with a hammer. He put the victim in his vehicle and drove away. The victim passed out. When she woke up, she was lying on top of the vehicle and Hayes was having sex with her. After he finished having sex with her, Hayes ordered her back into the vehicle and he drove away. After driving around for a while, Hayes stopped the vehicle and told the victim that he would let her go if she had sex with him again. The victim complied.

Afterwards, Hayes ordered the victim out of the vehicle. She started to walk away but turned around and saw that Hayes had pulled a gun on her. The victim then told Hayes that she would stay with him and that she would move to St. Louis with him. Hayes told her to get back in the vehicle and they drove to Columbia to pick up their daughter. While in Columbia, the victim was able to escape when Hayes went into his relative's house to pick up their daughter. The victim notified the police and the police arrested Hayes.

On June 12, 2004, the State filed a complaint against Hayes in the Circuit Court of Jackson County. In the complaint, the State alleged that Hayes had committed the crimes of kidnapping and burglary. A few weeks later, on June 25, 2004, the State filed a complaint in Howard County in which it alleged that Hayes had committed the crimes of kidnapping and forcible rape. The State amended its Howard County complaint to an information on August 18, 2004. The Howard County case was eventually transferred to Cooper County. In Cooper County, the State prosecuted Hayes for kidnapping and forcible rape. After the presentation of evidence, the jury convicted him of both charges. On November 4, 2005, the Circuit Court of Cooper County entered judgment against Hayes and sentenced him to ten years on the kidnapping charge and fifteen years on the forcible rape charge.

On November 4, 2005, Hayes's Jackson County case was bound over for indictment, and the Grand Jury of Jackson County indicted Hayes for kidnapping and burglary. The Grand Jury re-indicted him for burglary, felonious restraint, and domestic assault on September 29, 2006. Hayes and the State then entered into a plea agreement in which Hayes agreed to plead guilty to domestic assault and the State agreed to dismiss the burglary and felonious restraint charges. On December 6, 2006, Hayes pleaded guilty to domestic assault, and the trial court entered judgment against him and sentenced him to a term of five years.

On April 17, 2007, Hayes filed a pro se Rule 29.15 motion. His counsel filed an amended motion on July 23, 2007, in which he alleged that his trial counsel was ineffective for failing to file a motion to dismiss the Howard County kidnapping charge on the basis that, by filing a complaint in Jackson County, Jackson County had exclusive jurisdiction on the kidnapping charge. In the motion, Hayes also alleged that his appellate counsel was ineffective for failing to raise the issue on appeal. The motion court held an evidentiary hearing on September 8, 2008. On September 12, 2008, the motion court issued an order denying his claim. This appeal follows.

In his sole point on appeal, Hayes claims that the motion court erred in overruling his Rule 29.15 motion because the record at the evidentiary hearing established that his trial counsel was ineffective for failing to file a motion to dismiss the kidnapping charge in Howard County on the basis that Howard County lacked jurisdiction over him on that charge. Specifically, he claims that, pursuant to Rule 23.10, Howard County and Cooper County lacked jurisdiction over him on the kidnapping charge because Jackson County had already filed a complaint against him for the same offense. Hayes also claims that his appellate counsel was ineffective for failing to raise this issue on appeal.

According to Rule 29.15(k), our review is "limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous." Error is clear only if, after a review of the entire record, we have a definite and firm impression that the trial court made a mistake. State v. Johnson, 901 S.W.2d 60, 62 (Mo. banc 1995).

At the motion hearing, Hayes's burden was to establish by a preponderance of the evidence that his counsel's representation was ineffective. Rule 29.15(i). He was obligated to show that his counsel did not "exercise the customary skill and diligence that a reasonably competent attorney would [have] exercis[ed] under similar circumstances" and that his counsel's failures prejudiced his case. State v. Harris, 870 S.W.2d 798, 814 (Mo. banc 1994) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Hayes's burden was to establish both his counsel's deficient performance and prejudice. Clayton v. State, 63 S.W.3d 201, 206 (Mo. banc 2001).

To satisfy the performance prong of the Strickland test, Hayes "must overcome the presumptions that any challenged action was sound trial strategy and that counsel rendered adequate assistance and made all significant decisions in the exercise of professional judgment." State v. Simmons, 955 S.W.2d 729, 746 (Mo. banc 1997). Hayes faces a heavy burden in establishing a claim for ineffective assistance of counsel and must overcome the presumption that his counsel is competent. State v. Nunley, 980 S.W.2d 290, 292 (Mo. banc 1998).

To satisfy the prejudice prong of the Strickland test, Hayes "must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Simmons, 955 S.W.2d at 746. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

Our standard for a claim of ineffective assistance of appellate counsel is essentially the same standard that we employ in ineffective assistance of trial counsel cases. Evans v. State, 70 S.W.3d 483, 485 (Mo. App.2002). Hayes, therefore, must show deficient performance of counsel and resulting prejudice. Id. As the Missouri Supreme Court explained in Moss v. State, 10 S.W.3d 508, 514-15 (Mo. banc 2000) (citation omitted):

To support a [Rule 29.15] motion due to ineffective assistance of appellate counsel, strong grounds must exist showing that counsel failed to assert a claim of error which would have required reversal had it been asserted and which was so obvious from the record that a competent and effective lawyer would have recognized it and asserted it. The right to relief ... due to ineffective assistance of appellate counsel inevitably tracks the plain error rule; i.e., the error that was not raised on appeal was so substantial as to amount to a manifest injustice or a miscarriage of justice.

In numerous cases, two or more counties may have subject matter and personal jurisdiction over the same case. See, e.g., Kelly v. Kelly, 245 S.W.3d 308, 313 (Mo.App. W.D.2008). In these cases, the exercise of the court's authority is controlled by the principle of priority. In re Care and Treatment of Lieurance, 130 S.W.3d 693, 697 (Mo.App. S.D.2004); see also 20 AM.JUR.2D COURT § 88 (2005). According to this principle, the court that first exercises its jurisdiction acquires the priority to proceed in the case even though another court in the same state may also have jurisdiction in the matter. Lieurance, 130 S.W.3d at 697; see also 20 AM.JUR.2D COURT § 88.

The first court's exercise of jurisdiction, however, does not strip the other court of its jurisdiction. Kelly, 245 S.W.3d at 313-14. Rather, the court's use of the priority principle is simply a tool to determine which court can exercise its jurisdiction when numerous courts have jurisdiction over the same action. Id. The other court still has jurisdiction over the action but its exercise of jurisdiction is subservient to the first court's exercise of jurisdiction. Id.

In Missouri, Rule 23.10 governs the law of concurrent jurisdiction in criminal proceedings and states that:

23.10. Misdemeanors or Felonies— Indictments or Information—Two or More For the Same Offense

(a) Offense that can be Commenced in More than one County. If a criminal proceeding is commenced in a court having jurisdiction thereof, no other action for the same offense shall be commenced in a court in a different county so long as the...