Lingar v. State
| Citation | 766 S.W.2d 640 |
| Decision Date | 14 March 1989 |
| Docket Number | No. 70932,70932 |
| Parties | Stanley LINGAR, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Supreme Court |
Nancy A. McKerrow, Columbia, for appellant.
William L. Webster, Atty. Gen., Elizabeth L. Ziegler, Asst. Atty. Gen., Jefferson City, for respondent.
Appellant Stanley Lingar filed a post-conviction motion under Rule 27.26 seeking relief from a sentence and judgment of death for first degree murder which were affirmed on direct appeal. State v. Lingar, 726 S.W.2d 728 (Mo.banc 1987). An evidentiary hearing was conducted on appellant's multiple grounds of ineffective assistance of counsel. The court made and entered written findings of fact, conclusions of law, and entered judgment denying appellant's motion. Affirmed.
In O'Neal v. State, 766 S.W.2d 91 (Mo. banc 1989) (1989), the Court reviewed the rules applicable in determining claims asserting ineffective assistance of counsel. While easy to charge trial counsel with shortcomings, the courts have recognized that a criminal defendant shoulders a heavy burden because there is a presumption that counsel is competent and the allegation must be proved by a preponderance of the evidence. In so doing, the movant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and Sanders v. State, 738 S.W.2d 856 (Mo. banc 1987), that the attorney's performance fell below acceptable standards and prejudice resulted. Appellate review of the trial court's ruling is limited to a determination of whether the findings, conclusions, and judgment of the trial court are clearly erroneous. Rule 27.26(j); Futrell v. State, 667 S.W.2d 404 (Mo. banc 1984).
Appellant's pro se motion and his attorney's amended motion, collectively, alleged ten grounds of alleged ineffective assistance of trial counsel. The court, following the evidentiary hearing, made findings of fact and conclusions of law adversely to appellant on all of the grounds. Only four of the grounds are preserved in this appeal. Consequently, the additional grounds alleged in the pro se motion and amended motion are deemed abandoned. O'Neal v. State, 766 S.W.2d at 91.
Appellant also attempts to level charges of ineffective assistance of counsel at his motion attorney, claiming that attorney failed to allege two additional grounds in the amended motion and also failed to present evidence...
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...A postconviction proceeding is not to be used to challenge the effectiveness of counsel in the postconviction proceeding. Lingar v. State, 766 S.W.2d 640, 641 (Mo. banc), cert. denied, 493 U.S. 900, 110 S.Ct. 258, 107 L.Ed.2d 207 (1989). This Court addresses the three claims of ineffective ......
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