Luster v. State
| Decision Date | 18 January 2000 |
| Citation | 10 S.W.3d 205 |
| Parties | (Mo.App. W.D. 2000) . David E. Luster, Appellant, v. State of Missouri, Respondent. WD56756 Missouri Court of Appeals Western District Handdown Date: 0 |
| Court | Missouri Court of Appeals |
Appeal From: Circuit Court of Jackson County, Hon. Thomas C. Clark
Counsel for Appellant: Susan L. Hogan
Counsel for Respondent: John Munson Morris
Opinion Summary:
David E. Luster appeals from the order of the circuit court denying his Rule 29.15 motion for postconviction relief without an evidentiary hearing.
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.
Division III holds:
(1) After reviewing the record here, sans an evidentiary hearing, the court finds insufficient evidence from which to conclude with unmistakable clarity that Luster was advised by his trial counsel of his right to a jury trial and that he knowingly, voluntarily and intelligently waived the same. The record reflects that, although his trial counsel waived the right to a jury trial, Luster never expressly waived on the record his right, either in writing or orally. Further, at no time did his trial counsel or the trial court question him on the record about his understanding of his right to a jury trial and whether he was knowingly, voluntarily and intelligently waiving his right. Assuming, arguendo, that the Luster was not advised of his right to a jury trial and did not waive his right, prejudice would result, regardless of the evidence in the record to establish his guilt. As such, the motion court's findings and conclusions, in denying postconviction relief without an evidentiary hearing for ineffective assistance of trial counsel for counsel's failure to advise Luster of his right to a jury trial and obtain his informed consent to waive the same, are clearly erroneous.
(2) Despite that there was never any acceptance of the waiver of a jury trial by the trial court, Luster would still not be entitled to postconviction relief on the basis that the trial court erred in the manner in which it accepted his waiver and trial counsel failed to prevent it, because he cannot demonstrate prejudice from counsel's failure. First, Luster, under the circumstances, cannot demonstrate prejudice from the trial court's failure to conduct a proper Rule 27.01(b) examination. Second, his claim, couched in terms of trial error, is not cognizable in a Rule 29.15 motion for postconviction relief.
(3) Given the fact that Luster could not demonstrate prejudice from the alleged error of the trial court in failing to properly accept his waiver pursuant to Rule 27.0l(b), the fact that his appellate counsel failed to raise it as error on appeal would not entitle him to postconviction relief in that this court will not convict counsel of being ineffective if the alleged failed act would have been futile. Therefore, the court cannot say that the motion court's findings and conclusions that the record refuted the appellant's claim of ineffective assistance of appellate counsel were clearly erroneous.
Opinion Vote: AFFIRMED IN PART AND REVERSED AND REMANDED IN PART. Smart, P.J., and Ellis, J., concur.
David E. Luster appeals from the order of the circuit court denying his Rule 29.151 motion for postconviction relief without an evidentiary hearing. The appellant was convicted in the Circuit Court of Jackson County after a trial before the court as a prior and persistent offender of one count of assault in the first degree, section 565.050,2 for which he was sentenced to a term of fifteen years imprisonment in the Missouri Department of Corrections.
The appellant raises three points on appeal in which he claims that the motion court erred in denying his Rule 29.15 motion without an evidentiary hearing because he alleged facts, not conclusions, which, if true, would entitle him to postconviction relief and were not refuted by the record. In all three points, he contends that he alleged facts which were not refuted by the record and which demonstrated that the waiver of his constitutional right to a jury trial was not made knowingly, voluntarily and intelligently. In Point I, he claims that the motion court erred in denying his motion without an evidentiary hearing because the record did not refute the allegations of his motion that he received ineffective assistance of trial counsel in that his counsel, in waiving the appellant's constitutional right to a jury trial, did so: (1) without the appellant's informed consent; and (2) without ensuring that the trial court, in assenting to the waiver, as required by Rule 27.01(b), questioned the appellant on the record as to whether he understood his right to a jury trial and if so, whether he was knowingly, voluntarily and intelligently waiving it. In Points II and III, he makes the same underlying claim that he makes in the second subpoint of Point I, that the trial court failed to accept his waiver in accordance with Rule 27.01(b), but not in the context of receiving ineffective assistance of trial counsel. In Point II, he bases his claim of postconviction relief on the trial court's failure to comply with Rule 27.01(b) in assenting to the waiver of his right to a jury trial. In Point III, he claims he received ineffective assistance of appellate counsel for counsel's failure to raise on the direct appeal of his conviction the alleged error of the trial court asserted in Point II.
We affirm in part and reverse and remand in part.
The sufficiency of the evidence to convict is not in dispute. As admitted at trial, the appellant, on the evening of February 11, 1997, severely beat the victim, Martha Elizabeth Norberg, by repeatedly hitting her face with his fists. As a result of the beating, she was knocked unconscious. When she came to, the appellant began "snipping" a small pair of wire cutters at her, threatening to hit her again and kill her. He left the victim's house the next morning, at which time the police were called.
On March 4, 1997, the appellant was charged by information in the Circuit Court of Jackson County with the class B felony of assault in the first degree, section 565.050. On June 23, 1997, the information was amended to include an allegation that the appellant was a prior and persistent offender under section 558.016.
On June 30, 1997, the appellant's case was set to go to trial before a jury, with the Honorable Thomas C. Clark presiding. Prior to the trial commencing, the State's motion seeking approval of the court to admit evidence of prior acts of abuse by the appellant against the victim was taken up and heard. After the motion was sustained, over the objection of the defense, counsel for the appellant advised the court, on the record, that the appellant, who was present in the courtroom, wished to waive his right to a jury trial. The trial court did not question the appellant about the waiver, but ordered the case transferred to a visiting judge for trial.3
The case proceeded to trial without a jury before a visiting judge, the Honorable Charles H. Sloan, as senior judge, on July 1, 1997. The trial court did not conduct any inquiry as to the appellant's waiver of a jury trial. After hearing evidence, the court found the appellant guilty of the class B felony of assault in the first degree. He was subsequently sentenced as a prior and persistent offender to a term of fifteen years in the Missouri Department of Corrections.
The appellant filed a motion for a new trial which was overruled. He appealed his conviction to this court. We affirmed his conviction in State v. Luster, 967 S.W.2d 722 (Mo. App. 1998). On November 6, 1997, the appellant filed a pro se Rule 29.15 motion for postconviction relief, for appointment of counsel, and for an evidentiary hearing. On February 23, 1998, the trial court appointed counsel for the appellant, who moved for an extension of time to file an amended motion, which was sustained. On September 15, 1998, the appellant's amended motion was filed. In his amended motion, he alleged that he was entitled to postconviction relief because the waiver of his right to a jury trial was not knowingly, voluntarily and intelligently made because, with respect thereto, he received ineffective assistance of trial and appellate counsel, and the trial court erred in failing to accept the waiver in accordance with Rule 27.01(b).
On December 2, 1998, the motion court issued its findings of fact, conclusions of law, and order overruling the appellant's Rule 29.15 motion for postconviction relief without an evidentiary hearing.
This appeal follows.
Appellate review of a motion court's denial of a Rule 29.15 motion for postconviction relief is limited to a determination of whether the court's findings and conclusions issued in support thereof, as required by Rule 29.15(j), are clearly erroneous. Rule 29.15(k); State v. Clay, 975 S.W.2d 121, 140 (Mo. banc 1998), cert. denied, -- U.S. --, 119 S. Ct. 834, 142 L. Ed. 2d 690 (1999). Findings and conclusions are clearly erroneous only if, after a review of the entire record, the appellate court is left with a definite and firm impression that a mistake has been made. Clay, 975 S.W.2d at 140.
In Point I, the appellant claims that the motion court erred in denying his Rule 29.15 motion without an evidentiary hearing because the record does not refute the allegations of his motion that he received ineffective assistance of trial counsel. Specifically, he claims that his trial counsel was ineffective in waiving his constitutional right to a jury trial because he did so: (1) without the appellant's informed consent; and (2) without ensuring that the trial court, in assenting to the waiver, as required by Rule 27.01(b), questioned the appellant on the record as to whether he understood his right to a jury trial and, if so, whether he was knowingly, voluntarily and...
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