Schmedeke v. State, ED 83292.

• Decision Date: 01 June 2004
• Docket Number: No. ED 83292.,ED 83292.
• Citation: 136 S.W.3d 532
• Parties: James SCHMEDEKE, Movant/Appellants, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

136 S.W.3d 532

James SCHMEDEKE, Movant/Appellants, v. STATE of Missouri, Respondent.

No. ED 83292.

Missouri Court of Appeals, Eastern District, Division Three.

June 1, 2004.

S. Kristina Starke, St. Louis, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Breck Burgess, Andrea Kaye Spillars, Jefferson City, MO, for respondent.

WILLIAM H. CRANDALL, JR., Judge.

Movant, James Schmedeke, appeals from the judgment denying his Rule 29.15 motion without an evidentiary hearing. We reverse and remand.

A jury convicted movant of driving while intoxicated and driving while revoked. Movant was sentenced to four years' imprisonment for each conviction with the sentences to be served consecutively. Movant appealed from the judgment of conviction and this court affirmed. State v. Schmedeke, 84 S.W.3d 139 (Mo.App. E.D.2002).

Movant filed a pro se and amended Rule 29.15 motion for post-conviction relief. Movant alleged that his trial counsel rendered ineffective assistance by failing to properly investigate and call named witnesses. The trial court denied movant's motion and his request for an evidentiary hearing. Movant appeals, raising one point.

Appellate review of a trial court's ruling on a Rule 29.15 motion is limited to determining whether the trial court's findings and conclusions are clearly erroneous. Rule 29.15(k). A movant is entitled to an evidentiary hearing if the motion meets three requirements: (1) the motion must allege facts not conclusions that warrant relief; (2) the facts alleged must not be refuted by the files and records of the case; and (3) the allegations must have resulted in prejudice. Wilkes v. State, 82 S.W.3d 925, 928 (Mo. banc 2002). To deny a request for an evidentiary hearing, the record must conclusively show that the movant is not entitled to relief. Id.

For a claim of ineffective assistance of counsel, a movant must allege facts showing that counsel's performance did not conform to the degree of professional skill and diligence of a reasonably competent attorney and that he or she was thereby prejudiced. Id. at 927. To demonstrate prejudice, the movant must allege facts that show a reasonable probability that, but for counsel's deficient performance, the result of the proceeding would have been different. Id. at 927-28. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 928.

Movant argues that the trial court clearly erred in denying his motion because his trial counsel was ineffective for failing to investigate and call named witnesses. Movant further argues that if counsel had called these witnesses there is a reasonable probability that he would have been acquitted.

To warrant an evidentiary hearing on his claim, movant had to allege: (1) the identity of the witnesses; (2) what the witnesses' testimony would have been; (3) that his counsel was informed of the witnesses' existence; (4) whether the witnesses were available to testify; and (5) the testimony would have provided a viable defense. Id.

Prior to voir dire for the criminal trial, movant informed the court that his counsel had failed to have any witnesses present. Movant stated that he had given counsel names of witnesses and had "asked for several of them." Movant's counsel stated that she had thoroughly investigated the case and the decision not to call the witnesses was a matter of trial strategy. Counsel also stated that she did not "want to get into anything specifically" because she thought it would harm movant's case. The trial court declined to change movant's counsel. The trial court informed movant that there could be many reasons why an attorney would decide not to call the witnesses.

At trial, a police officer testified that on February 19, 2000, he pulled over a vehicle that movant was driving. The officer stated that movant admitted drinking four beers, had alcohol on his breath, had slurred speech, had glassy and bloodshot eyes, failed field sobriety tests and refused to submit to a breath test. According to the officer, movant was intoxicated. Movant testified that on the day of his arrest he left work and went to a bar to pick up his "girlfriend," Mickey Joerling. Movant also testified that Joerling was driving the vehicle when they were stopped. During closing argument, movant's counsel suggested that the State failed to meet its burden of proof that movant was driving the vehicle and was intoxicated.

In his amended Rule 29.15 motion, movant alleged that his counsel rendered ineffective assistance by "failing to investigate certain witnesses, including Sandy Kessler, Mike Rhodes, Larry Daily, Frank Barton, before trial and failing to call witness Micky Joerling and the previously mentioned witnesses." Movant stated that these witnesses would have provided favorable testimony. Movant further alleged that Kessler owned the bar and Rhodes, Daily and Barton were patrons of the bar on the day of his arrest. According...