Lung v. State
Decision Date | 30 November 2005 |
Docket Number | No. 26706.,26706. |
Citation | 179 S.W.3d 337 |
Parties | Michael A. LUNG, Movant-Appellant, v. STATE of Missouri, Respondent. |
Court | Missouri Supreme Court |
Mark A. Grothoff, Columbia, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Ronald S. Ribaudo, Asst. Atty. Gen., Jefferson City, for respondent.
Michael A. Lung (movant) was convicted, following a jury trial, of assault in the first degree, § 565.050,1 two counts of armed criminal action, § 571.015, and attempt to commit robbery in the first degree, §§ 564.011 and 569.020. Movant was charged as, found to be, and sentenced as a prior offender. § 558.016.2.
Movant filed a motion for post-conviction relief as permitted by Rule 29.15. Counsel was appointed and an amended motion filed. Following an evidentiary hearing, the motion was denied and findings of fact and conclusions of law filed. This court affirms.
This court must first determine if movant's notice of appeal was timely filed. The state contends it was not. State v. Lawrence, 139 S.W.3d 573, 576 (Mo.App.2004).
The motion court's order denying movant's Rule 29.15 motion was entered November 9, 2004. Movant's notice of appeal was filed December 7, 2004, 28 days after judgment was rendered. Rule 29.15(a) states, "The procedure to be followed for motions filed pursuant to this Rule 29.15 is governed by the rules of civil procedure insofar as applicable." Rule 81.04(a) provides that a party may appeal a judgment or order as permitted by law by filing a notice of appeal with the clerk of the trial court, provided that "[n]o such appeal shall be effective unless the notice of appeal shall be filed not later than ten days after the judgment or order appealed from becomes final."
The state contends that because Rule 29.15(k) declares that "[a]n order sustaining or overruling a motion filed under the provisions of this Rule 29.15 shall be deemed a final judgment for purposes of appeal by the movant or the state," a party must file a notice of appeal within ten days after that date. In arguing the issue, the state acknowledges that numerous cases have declared otherwise but contends those declarations were dicta; that "whether Rule 29.15(k) trumps Rule 75.01 [was not] at issue in those cases."
Rule 75.01 provides that "[t]he trial court retains control over judgments during the thirty-day period after entry of judgment." If Rule 75.01 applies, the ten days for filing a notice of appeal in a Rule 29.15 case would begin at the conclusion of the 30 days during which the motion court retained control over its order denying the motion. Or, as explained in State v. Mackin, 927 S.W.2d 553, 557 (Mo.App.1996), one of the cases the state contends spoke to this issue in dicta,
To determine whether a particular rule of civil procedure applies in the context of post-conviction review, the essential inquiry is whether the rule in question enhances, conflicts with, or is of neutral consequence to the purposes of the post-conviction rule. Nicholson v. State, 151 S.W.3d 369, 371 (Mo. banc 2004); Thomas v. State, 808 S.W.2d 364, 366 (Mo. banc 1991). If the civil rule enhances the purposes of the post-conviction rule or bears a neutral consequence, it applies. Id. If the rule hinders the purposes of the post-conviction rule, it should not apply. Id.
The purpose of Rule 29.15 is to permit a person convicted of a felony, after trial, to challenge the conviction's validity on the bases of claims that the conviction or sentence imposed violated the constitution and laws of this state or the constitution of the United States. Rule 29.15(a). The determination of a motion court may be appealed by the movant or the state for purposes of determining if the findings and conclusions of the motion court were clearly erroneous. Rule 29.15(k). Post-convictions are not steps in criminal proceedings, but are means of testing the validity of a person's detention after conviction. State v. Floyd, 403 S.W.2d 613, 614 (Mo.1966). Rule 29.15 is a means by which the validity of the judgment under which a defendant is being held may be challenged in a civil proceeding. Id.
This court concludes that Rule 75.01 enhances the purpose of Rule 29.15 in that it affords the same opportunity for review of a motion court's ruling as is provided in other types of civil cases. It affords an opportunity for due process to litigants in post-conviction cases that is akin to other civil litigants. As such, it enhances the purposes of the post-conviction proceeding and bears neutral consequences on the merits of those cases. Rule 75.01 does not hinder the purposes of Rule 29.15.
By declaring the disposition in a post-conviction case to be "deemed a final judgment," Rule 29.15(k) assures that Rule 29.15 cases are afforded a right of appeal pursuant to provisions of § 512.020 that permit appeals of "final judgment[s]... or from any special order after final judgment." This court finds no conflict between Rule 29.15 and Rule 75.01. Movant's notice of appeal was timely filed in that it was filed within ten days following the judgment that denied movant's motion becoming final.
Movant asserts three points on appeal. In each point, movant argues that the motion court erred in denying his Rule 29.15 motion because he did not receive effective assistance of counsel in his criminal case.
To prevail on his claim of ineffective assistance of counsel, movant must have proven, by a preponderance of evidence, that his trial counsel's performance was deficient and that the deficient performance prejudiced the outcome in his case (as opposed to showing the deficient performance had some conceivable effect on the outcome). Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984).
A movant "must satisfy both the performance prong and the prejudice prong to prevail on an ineffective assistance of counsel claim." Sanders v. State, [738 S.W.2d 856, 857 (Mo.banc 1987)] (emphasis in original)....
Reece v. State, 891 S.W.2d 863, 866 (Mo.App.1995).
Point I argues that movant's trial counsel "failed to act as a reasonably competent attorney would under the same or similar circumstances by failing to impeach Josh Gulick with his prior inconsistent testimony at the preliminary hearing and in his pretrial deposition." Movant contends "that the state's case was based significantly on [Gulick's] testimony"; that had movant's attorney disclosed contradictions between the statements Gulick made prior to trial and his testimony at trial, "such impeachment would have cast doubt on his credibility."
The motion court found:
Movant alleges that his counsel was ineffective for failing to impeach State's witness Josh Gulick's trial testimony with previous testimony relating to whether Movant admitted to hitting the victim in the head with the gun. Trial counsel testified that his strategy during cross-examination of Josh Gulick was to get him off the stand as quickly as possible because he was Movant's cousin and did not have as much incentive to lie. [The motion court] finds that counsel's actions were reasonable. Moreover, [the motion court] finds that even assuming that trial counsel had attempted to impeach Gulick with his prior testimony, Movant was not prejudiced. There is no reasonable probability that this impeachment would have affected the outcome of the trial considering the remainder of the evidence presented. ....
Arguably, Gulick's preliminary hearing testimony and deposition testimony, while not being exactly the same as his trial testimony, was not inconsistent. Gulick related at trial that movant had stated he struck the victim on the head with a toy gun and that the gun broke. At preliminary hearing and at deposition, Gulick did not succinctly state that movant told him movant hit the victim but responded that he did not recall statements movant made beyond the answers he gave to other questions. There were references in the preliminary hearing testimony and the deposition testimony to movant having had a plastic gun before he entered the scene of the attempted robbery. The trial court concluded that, regardless of any disparity, movant was not prejudiced by movant's trial counsel's not having impeached Gulick with respect to whether movant told him movant hit the store attendant on the head with the toy gun.
This court has reviewed the evidence adduced at trial. The motion court's conclusion that movant was not prejudiced by his trial counsel's failure to impeach Gulick's testimony is not clearly erroneous.
To prevail on a claim of ineffective assistance of counsel, "[a] movant `must satisfy both the performance prong and the prejudice prong.'" Reece, supra, quoting Sanders v. State, supra. "However, a court need not determine the performance component of the test before examining for prejudice." Id. Movant did not prove prejudice. Point I is denied.
Point II argues that movant's trial counsel was deficient in that he failed "to object to an improper argument made by the prosecutor that improperly refers to uncharged criminal conduct by [movant]." Movant contends he was prejudiced "in that the jury was allowed to consider the improper argument in determining its verdict, rather than deciding the case upon independent evaluation of the evidence alone."
Point II is directed to part of the prosecutor's closing argument in which h...
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