State v. Berry, s. 16520

• Decision Date: 30 October 1990
• Docket Number: Nos. 16520,16916,s. 16520
• Parties: STATE of Missouri, Respondent, v. Thomas Lowell BERRY, Appellant. Thomas Lowell BERRY, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

Page 491

798 S.W.2d 491

STATE of Missouri, Respondent, v. Thomas Lowell BERRY, Appellant.

Thomas Lowell BERRY, Appellant, v. STATE of Missouri, Respondent.

Nos. 16520, 16916.

Missouri Court of Appeals,

Southern District,

Division One.

Oct. 30, 1990.

Judith C. LaRose, Columbia, for appellant.

William L. Webster, Atty. Gen., Robert P. Sass, Asst. Atty. Gen., Jefferson City, for respondent.

CROW, Judge.

A jury found appellant Thomas Lowell Berry guilty of burglary in the second degree, § 569.170, RSMo 1986, and the trial court sentenced him as a persistent offender, § 558.016.3, RSMo 1986, to five years' imprisonment. Appellant brings appeal 16520 from that judgment and sentence.

Following the conviction, appellant commenced a proceeding under Rule 29.15 ¹ to vacate the conviction. The trial court entered judgment denying relief without an evidentiary hearing. Appellant brings appeal 16916 from that judgment.

The appeals are consolidated. Rule 29.15(l ). Appellant's brief displays the title and number of each appeal but contains only a single point relied on. The point pertains solely to the 29.15 proceeding, appeal 16916.

We address the appeals separately.

Appeal 16520

Appellant assigns no error regarding the judgment and sentence from which appeal 16520 is taken. We find no reported case where that has occurred since inception of the procedure consolidating direct appeals with post-conviction appeals (Rule 29.15(l ), effective January 1, 1988).

In State v. Kendrick, 606 S.W.2d 643 (Mo.1980), the accused was convicted by a jury on two counts (V and VI). Later he (a) pled guilty to three other counts, and (b) was convicted in a nonjury trial of three additional counts. He filed a notice of appeal from the five counts on which he had been tried. His brief, however, contained no point relied on pertaining to the judgment on count V. The Supreme Court of Missouri held the appeal was abandoned as to that count. Id. at 644. The judgment of conviction on that count was affirmed. ²

As appellant presents no assignment of error regarding the judgment and sentence from which appeal 16520 is taken, we hold that appeal is abandoned. The judgment adjudicating appellant guilty of burglary in the second degree and imposing the five-year prison sentence is affirmed.

Appeal 16916

Appellant's point relied on reads:

"The motion court clearly erred by overruling appellant's Rule 29.15 motion for postconviction relief without granting an evidentiary hearing because the proceedings in the motion court did not comply with the mandatory requirements of Rule 29.15(e) and Rule 29.15(g) in that appointed counsel did not ascertain all grounds that form a basis for attacking a movant's judgment and sentence and the facts in support thereof, failed to file an amended motion which sufficiently alleged those grounds, and did not request an evidentiary hearing, thus denying appellant any representation by counsel on his post-conviction action."

Appellant commenced the 29.15 proceeding by filing a pro se motion to vacate December 1, 1989. It was accompanied by a pauper's affidavit.

The motion court appointed the Public Defender to represent appellant. Special District Defender Dean Price filed an entry of appearance as counsel for appellant December 14, 1989.

The next activity of record was on February 15, 1990. The motion court reviewed the matter that date and noted that no amended motion had been timely filed per Rule 29.15(f) and no request for a hearing had been timely made per Rule 29.15(g). The motion court determined that the pro se motion would be adjudicated without an evidentiary hearing.

On February 26, 1990, the motion court entered judgment denying relief, accompanied by findings of fact and conclusions of law.

Rule 29.15(e) cited in appellant's point relied on reads:

"... Counsel shall ascertain whether sufficient facts supporting the grounds are asserted in the motion and whether the movant has included all grounds known to him as a basis for attacking the judgment and sentence. If the motion does not assert sufficient facts or include all grounds known to the movant, counsel shall file an amended motion that sufficiently alleges the additional facts and grounds...."

Appellant maintains the record demonstrates lawyer Price failed to perform those duties and to request an evidentiary hearing within the time allowed by Rule 29.15(g). According to appellant, Price's "inaction constituted a complete failure to supply legal services and deprived appellant of any opportunity to fully and fairly litigate his claims for postconviction relief." Appellant prays that we reverse the motion court's judgment and remand the 29.15 proceeding with directions that new counsel be appointed to represent him in compliance with Rule 29.15(e).

Appellate review of the motion court's judgment is limited to a determination of whether the findings and conclusions of that court are clearly erroneous. Rule 29.15(j); Clemmons v. State, 785 S.W.2d 524, 527 (Mo. banc 1990). Appellant's point relied on fails to challenge any finding of fact or conclusion of law by the motion court.

Additionally, nothing in the record shows that appellant's complaints about lawyer Price were asserted in the motion court. Claims not raised in the motion court cannot be reviewed on appeal. Young v. State, 770 S.W.2d 243, 245 (Mo. banc 1989); Bockover v. State, 794 S.W.2d 334, 339 (Mo.App.1990).

Furthermore, a post-conviction proceeding authorized by rules of the Supreme Court of Missouri is directed to the validity of the prisoner's conviction and sentence, and cannot be used as a conduit to challenge the effectiveness of counsel in the post-conviction proceeding. Young, 770 S.W.2d at 245; Lingar v. State, 766 S.W.2d 640, 641 (Mo. banc 1989), cert. denied, 493 U.S. 900, 110 S.Ct. 258, 107 L.Ed.2d 207 (1989).

Appellant directs us to Parker v. State, 785 S.W.2d 313 (Mo.App.1990). There counsel was appointed for an indigent prisoner in a post-conviction proceeding under former Rule 27.26 (now repealed) and, according to the record, did nothing thereafter. The circuit court ultimately denied relief without an evidentiary hearing. The Eastern District of this Court held this was error inasmuch as the prisoner received no representation after filing his pro se motion and requesting appointed counsel. Id. at 314. The opinion acknowledged Lingar's holding that a post-conviction proceeding cannot be used as a means of challenging the effectiveness of counsel in the post-conviction proceeding. However, said the Eastern District, the prisoner in Parker was not challenging the effectiveness of his post-conviction lawyer, instead he was alleging he received no assistance of counsel at all. Id. at 314.

In the instant case appellant avers, "The records of the proceedings in the [motion court] verify that counsel provided no representation for appellant in his Rule 29.15 proceeding." Consequently, says appellant, he is entitled to reversal of the 29.15 judgment, appointment of new counsel, and a fresh period for filing an amended motion to vacate.

In weighing appellant's argument we note that nowhere in his brief is there any averment that there was a ground for relief available to him that did not appear in the pro se motion but could have been asserted in an amended motion. The extraordinary relief of reversal because of appointed counsel's failure to amend a prisoner's pro se motion to vacate his conviction is not warranted unless the record indicates the prisoner had a justiciable claim that appointed counsel failed to present. Luster v. State, 785 S.W.2d 103, 107 (Mo.App.1990); State v. Perez, 768 S.W.2d 224, 228 (Mo.App.1989). The prisoner's brief must specify the additional grounds that counsel neglected to raise. Luster, 785 S.W.2d at 107; Grove v. State, 772 S.W.2d 390, 392-93 (Mo.App.1989). As there is no indication in the instant case that appellant had a justiciable claim for post-conviction relief which could have been pled in an amended 29.15 motion, lawyer Price's failure to file one does not require reversal.

We next consider whether lawyer Price's failure to request an evidentiary hearing warrants reversal.

The grounds for relief in appellant's 29.15 motion are grouped in three categories. The first is that appellant received ineffective assistance from the lawyer who represented him at trial ("defense counsel"). Appellant complains defense counsel failed to inform him there was a "time limit" in which to present motions to the trial court, and that as a result certain motions appellant filed the morning of trial were denied.

The record of the jury trial shows appellant filed pro se motions for (1) change of judge, (2) continuance, (3) dismissal of defense counsel, and (4) appointment of a new public defender. All were summarily denied. Additionally, defense counsel stated appellant had requested that counsel attempt to get a change of venue but counsel thought it would be pointless so he did not do so.

The denial of motions 2, 3 and 4 could have been assigned as error in appeal 16520; however, that was not done.

As to the motion for change of judge and appellant's desire for a change of venue, we point out that to prevail on a claim of ineffective assistance of counsel a prisoner must show (1) his lawyer failed to exercise the customary skill and diligence that a reasonably competent lawyer would have exercised under similar circumstances, and (2) the prisoner was thereby prejudiced. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987). The prisoner must satisfy both requirements; if he fails to satisfy one, the other need not be considered. Id.

To be entitled to an evidentiary hearing on the issue of ineffectiveness of counsel, a prisoner seeking post-conviction relief must plead facts, not conclusions, which if true would warrant relief; those facts must not be refuted by the record; and the matters complained of must have resulted in...