State v. Allen, s. 69709

• Decision Date: 12 August 1997
• Docket Number: Nos. 69709,71364,s. 69709
• Citation: 954 S.W.2d 414
• Parties: STATE of Missouri, Plaintiff/Respondent, v. Benerie ALLEN, Defendant/Appellant. Benerie ALLEN, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
• Court: Missouri Court of Appeals

Page 414

954 S.W.2d 414

STATE of Missouri, Plaintiff/Respondent, v. Benerie ALLEN, Defendant/Appellant.

Benerie ALLEN, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.

Nos. 69709, 71364.

Missouri Court of Appeals,

Eastern District,

Division Six.

Aug. 12, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Oct. 9, 1997.

Application to Transfer Denied

Nov. 25, 1997.

Robert E. Steele, Jr., Asst. Public Defender, St. Louis, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel G. Cierpiot, Asst. Atty. Gen., Jefferson City, for respondent.

REINHARD, Presiding Judge.

Defendant appeals after he was convicted by a jury of three counts of first degree robbery (Counts I, V, and VI), section 569.020, RSMo 1994 ¹ and one count of first degree assault (Count II), section 565.050. The court found defendant to be a prior and persistent offender and sentenced him to the following prison terms: life for Count I to run concurrently with a thirty year term for Count II; life for Count V to run consecutively to Counts I and II; and life for Count VI to run consecutively to Count V. Defendant also appeals the denial, without an evidentiary hearing, of his Rule 29.15 motion for post-conviction relief. We affirm the judgment as to defendant's conviction and sentence. We reverse the judgment as to defendant's Rule 29.15 motion and remand the cause for an evidentiary hearing.

Defendant and Sandra Krausz forcibly stole property from three separate victims on July 9, 1994, August 1, 1994, and August 6, 1994. During the robberies, defendant used or threatened the use of a deadly weapon or what appeared to be a deadly weapon. Defendant also assaulted the victim on July 9 by striking the victim's cheek and jaw with a hammer clenched in his fist.

On appeal, defendant argues that the trial court erred when it "denied [defendant's] Batson motion, because the state used its peremptory challenges to strike black venirepersons solely because of their race."

A prosecutor may not strike a potential juror based upon that person's race. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). The United States Supreme Court has established a three-step analysis for Batson challenges:

Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination.

Purkett v. Elem, 514 U.S. 765, 767, 115 S.Ct. 1769, 1770-71, 131 L.Ed.2d 834, 839 (1995). The prosecutor's explanations need not rise to the level justifying exercise of a challenge for cause, Batson, 476 U.S. at 97, 106 S.Ct. at 1723, and unless a discriminatory intent is inherent in the prosecutor's explanation, the reason will be deemed race neutral. Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 1866, 114 L.Ed.2d 395 (1991).

A reviewing court will set aside a trial court's finding as to whether the prosecutor discriminated in the exercise of his peremptory challenges only if it is clearly erroneous. State v. Blankenship, 830 S.W.2d 1, 15 (Mo. banc 1992). A finding is clearly erroneous if the reviewing court is left with a definite and firm impression that a mistake has been made. State v. Ramsey, 864 S.W.2d 320, 334-35 (Mo. banc 1993), cert. denied, 511 U.S. 1078, 114 S.Ct. 1664, 128 L.Ed.2d 380 (1994). In determining whether the trial court's finding was clearly erroneous, this court must give great deference to the trial court's finding. State v. Antwine, 743 S.W.2d 51, 66 (Mo. banc 1987), cert. denied, 486 U.S. 1017, 108 S.Ct. 1755, 100 L.Ed.2d 217 (1988).

After reviewing the record, we find that the trial court did not err.

Defendant also contends that the motion court clearly erred when it denied defendant's motion for post-conviction relief. Defendant alleges:

The motion court's judgment denying [defendant] postconviction relief without an evidentiary hearing, was clearly erroneous because [defendant] pled facts which, if true, would have entitled him to relief and those facts were not refuted by the record. [Defendant] was denied due process of law and the effective assistance of counsel, in violation of the Sixth and Fourteenth Amendments to the United States Constitution and Article 1, sections 10 and 18(a) of the Missouri Constitution, when the court proceeded to trial against him on October 2, 1995 because the court lacked jurisdiction since [defendant] had filed a request for disposition of detainers and the 180-day limitation period had expired before the trial began.

Defendant did not raise this issue in either his motion for new trial or his direct appeal.

Our review is limited to determining whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 29.15; Brummell v. State, 770 S.W.2d 379, 380 (Mo.App. E.D.1989). Such findings and conclusions will be found clearly erroneous only if a review of the entire record leaves this court with a definite and firm impression that a mistake has been made. Id. To be entitled to an evidentiary hearing, a movant must cite facts not conclusions, which, if true, would warrant relief; the factual allegations must not be refuted by the record; and the matters complained of must have prejudiced the movant. State v. Blankenship, 830 S.W.2d 1, 16 (Mo. banc 1992).

To prevail on a claim of ineffective assistance of counsel, a movant must show, by a preponderance of the evidence, that counsel's performance was deficient and that the deficient performance prejudiced movant's defense. State v. Henderson, 826 S.W.2d 371, 377-78 (Mo.App. E.D.1992) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)). To prove deficient performance, a movant must show that counsel's acts or omissions were outside the range of professionally competent assistance. Henderson, 826 S.W.2d at 378. Prejudice exists when there is a reasonable probability that but for counsel's errors, the result of the proceeding would have been different. Id. If a movant fails to show either deficient performance or prejudice, the court need not address the other component. State v. Mueller, 872 S.W.2d 559, 566 (Mo.App. E.D.1994).

Section 217.460 requires that a defendant be tried within 180 days of the receipt of his Uniform Mandatory Disposition of Detainers Law request. In determining whether a defendant was deprived of his right to a speedy trial, the courts assess four factors: (1) length of delay; (2) reason for the delay; (3) the defendant's assertion of the right to a speedy trial; and (4) prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 530-32, 92 S.Ct. 2182, 2192-93, 33 L.Ed.2d 101, 116-18 (1972); State v. Davis, 903 S.W.2d 930, 936 (Mo.App. W.D.1995). "The length of the delay is to some extent a triggering mechanism," and unless a delay is presumptively prejudicial, there is no necessity for inquiry into the other factors. State v. Thomas, 625 S.W.2d 115, 125 (Mo.1981) (citing Barker, 407 U.S. at 530-32, 92 S.Ct. at 2192-93, 33 L.Ed.2d at 116-18); Davis, 903 S.W.2d at 936.

Missouri courts have stated that a delay of eight months or longer is presumptively prejudicial. State v. Farris, 877 S.W.2d 657, 660 (Mo.App. S.D.1994). In determining whether the delay was presumptively prejudicial, however, the delay attributable to the defendant's continuances, motions, or other actions must first be subtracted from the total delay. Davis, 903 S.W.2d at 936 (citing Thomas, 625 S.W.2d at 125). Any delay attributable to a defendant's affirmative action or agreement is not included in the period of limitation, and therefore, a continuance granted at a defendant's request tolls the 180 day period. State v. Coons, 886 S.W.2d 699, 701 (Mo.App. S.D.1994); State v. Clark, 846 S.W.2d 750, 752 (Mo.App. E.D.1993); State v. Sallee, 624 S.W.2d 184, 186 (Mo.App. S.D.1981). A defendant may not have the benefit of a delay caused by the grant of this request and then charge the delay to the state. See Sallee, 624 S.W.2d at 186.

Here, defendant filed a request for continuance from January 25, 1995, until March 27, 1995. Defendant filed a request for disposition of detainer, and it was received by the court and prosecuting attorney on February 27, 1995. On April 25, 1995, defendant's trial date was set for July 17, 1995. On July 13, 1995, defendant requested another continuance, and the trial was then set for August 7, 1995. ² After a continuance by the court, the trial was held on October 2, 1995.

The motion court found that the "total time between March 27, 1995 and October 2, 1995 was 190 days. When the continuance from July 11, 1995 ³ to August 7, 1995 (27 days) is subtracted, the total elapsed time was 163 days. There accordingly was no violation of the detainers act and the court was not lacking in jurisdiction." We agree. The only delay not attributable to defendant's own continuance motions was from March 27 to July 13 and from August 7 until October 2. The length of this delay was not presumptively prejudicial, and defendant was brought to trial within 180 days.

Defendant asserts, however, that "[a]fter the [180 day] period commences the court may grant additional time 'for good cause shown in open court.' " Defendant contends that the record does not show whether his continuances were granted in open court or for "good cause." In making this argument, defendant has misinterpreted section 217.460. That statute provides:

Within one hundred eighty days after the receipt of the request and certificate ... by the court and the prosecuting attorney or within such additional necessary or reasonable time as the court may grant, for good cause shown in open court, the offender or his c...