Weinert v. State, 012120 MOCAE, ED107715

Docket Nº:ED107715
Opinion Judge:PHILIP M. HESS, PRESIDING JUDGE
Party Name:BRADLEY R. WEINERT, Appellant, v. STATE OF MISSOURI, Respondent.
Judge Panel:Kurt S. Odenwald, J. and Lisa P. Page, J. concur.
Case Date:January 21, 2020
Court:Court of Appeals of Missouri
 
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BRADLEY R. WEINERT, Appellant,

v.

STATE OF MISSOURI, Respondent.

No. ED107715

Court of Appeals of Missouri, Eastern District, Second Division

January 21, 2020

Appeal from the Circuit Court of St. Louis County Honorable Stanley J. Wallach

PHILIP M. HESS, PRESIDING JUDGE

Introduction

Bradley Weinert ("Movant") appeals the motion court's denial of his Rule 29.151 motion for post-conviction relief. Movant claims his appellate attorney ("Appellate Counsel") was ineffective for failing to assert on direct appeal the trial court erred in accepting unauthenticated documentary evidence from the driving while intoxicated tracking system ("DWITS"). The use of the DWITS records supported Movant's classification as a "chronic offender" under Section 577.023.2 Movant claims the motion court erred in finding Appellate Counsel's actions were reasonable because a reasonable attorney at the time should have recognized the claim of error ("DWITS claim") and asserted it on direct appeal. We disagree. We find Movant has failed to show the DWITS claim was so obvious any reasonably competent attorney would have asserted it at the time of Movant's direct appeal. Therefore, we find the motion court's conclusion regarding Appellate Counsel's performance was not clearly erroneous. The motion court's denial of Movant's amended motion is affirmed.

Factual and Procedural Background

Movant was charged with driving while intoxicated under Section 577.010 as a "chronic offender" under Section 577.023.1(2). Movant's case went to trial in the circuit court of St. Louis County. Before the case was submitted to the jury, the circuit court held a hearing outside the jury's presence on Movant's classification as a "chronic offender" under Section 577.023. The State presented printed copies of search results from the DWITS as Exhibits 1 through 6. These DWITS records were hard-copy facsimiles of online searches of the DWITS, which indicated Movant had been found guilty or entered a guilty plea for six intoxication-related traffic offenses. Movant's counsel objected there was no foundation to authenticate the DWITS records. The trial court overruled the objection and accepted the evidence saying it had accepted these records in other cases under Section 577.023.16. The trial court classified Movant as a "chronic offender" under Section 577.023.1(2) enhancing the class B misdemeanor charge of driving while intoxicated to a Class B felony charge. At trial, the jury found Movant guilty. Movant was sentenced by the circuit court to a term of 11 years in the Missouri Department of Corrections.

Movant appealed the judgment and sentence. Appellate Counsel represented Movant on direct appeal and asserted three properly preserved claims of error. He claimed the trial court abused its discretion by overruling the timely objections of Movant's trial counsel when the State used: • evidence of the severity of one of the victim's injuries because it was irrelevant and prejudicial;

• evidence of long-term emotional trauma allegedly suffered by one of the victim's because it was irrelevant and prejudicial;

• six beer bottles during closing argument because they were irrelevant and not offered into evidence at trial.

If granted, each claim would have resulted in a new trial. Movant's claims were denied on direct appeal in a per curiam order. See State v. Weinert, 502 S.W.3d 78 (Mo. App. E.D. 2016).

Movant timely filed a pro se Rule 29.15 motion claiming Appellate Counsel was ineffective during the direct appeal. Post-conviction counsel timely filed an amended Rule 29.15 motion. Movant claimed Appellate Counsel failed to assert the DWITS claim, which was preserved for appeal. Movant claimed the trial court allowed the State to use the DWITS records without authenticating the documents by presenting them as certified business records or calling a witness to attest to their authenticity. Movant claimed if Appellate Counsel brought the DWITS claim there was a reasonable probability the case would have been remanded to the trial court for re-sentencing.

The motion court held an evidentiary hearing. Movant and Appellate Counsel testified. Appellate Counsel testified he reviewed the record for Movant's direct appeal, including the trial transcript and post-trial motion. Appellate Counsel conceded the DWITS claim was preserved for appeal. Appellate Counsel also read Section 577.023.16 in his review of the Movant's file. Appellate Counsel believed the statute allowed the DWITS records to come in as offered by the State. Appellate Counsel believed certain records must be certified based on the language of the statute, but the records used by the State did not require certification. Appellate Counsel believed the language of Section 557.023.16 eliminated the need to authenticate or lay foundation for DWITS records

The motion court denied Movant's amended Rule 29.15 motion. The motion court found the DWITS claim was properly preserved by trial counsel's objection and post-trial motion. The motion court found Appellate Counsel asserted three other preserved claims of error on direct appeal, not including the DWITS claim. The motion court also found Appellate Counsel had impressive qualifications and experience including over 25 years of appellate work. The motion court found Appellate Counsel reviewed Movant's trial transcript and post-trial motion. The motion court also found Appellate Counsel reviewed...

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