West v. State
| Decision Date | 25 August 2020 |
| Docket Number | C/w WD 83014,WD 83013 |
| Citation | 605 S.W.3d 607 |
| Parties | Antonio D. WEST, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Nancy A. McKerrow, Special Public Defender, Columbia, MO, Attorney for Appellant.
Eric S. Schmitt, Attorney General, and Evan J. Buchheim, Assistant Attorney General, Jefferson City, MO, Attorneys for Respondent.
Before Division One: Thomas H. Newton, Presiding Judge, and Mark D. Pfeiffer and Edward R. Ardini, Jr., Judges
Mr. Antonio D. West ("West") appeals from the judgment of the Circuit Court of Platte County, Missouri ("motion court"), denying, after an evidentiary hearing, his Rule 29.15 amended motion for post-conviction relief, based on ineffective assistance of trial and appellate counsel. We affirm.
In the underlying criminal case, West was charged in the Circuit Court of Platte County, Missouri, with stealing in two separate cases. In the first case (Case No. 15AE-CR00141-01), West was charged with committing the class D felony of stealing for appropriating Sony Bluetooth speakers from Target on January 20, 2015. In the second case (Case No. 15AE-CR00642-01), West was charged with committing the class D felony of stealing for appropriating a speaker from Walmart on March 17, 2015.
In each case, the State alleged that within ten years of the charged offense, West had pleaded guilty on two separate occasions to stealing-related offenses: on October 19, 2014, in the Circuit Court of Platte County, Missouri, in Case No. 12AE-CR02824-01, he pleaded guilty to stealing for events that occurred on July 7, 2012; and on August 12, 2005, in the District Court of Johnson County, Kansas, in Case No. 05CR1284, he pleaded guilty to attempted felony theft for events that occurred on May 5, 2005. The State further alleged that West was a prior offender and a persistent offender under section 558.016 in that he pleaded guilty to two or more felonies committed at different times: on April 19, 2012, in the Circuit Court of Jackson County, Missouri, in Case No. 1116-CR04334-01, he pleaded guilty to the class C felony of burglary in the second degree for events that occurred on October 5, 2011; and on April 18, 2007, in the Circuit Court of Jackson County, Missouri, in Case No. 0516-CR02874-01, he pleaded guilty to the class C felony of stealing for events that occurred on March 5, 2005.
The State moved the trial court to join the cases under Rule 23.05. West did not object to the State's motion, and the trial court consolidated the cases for trial. Prior to trial, the trial court entered its order finding West was a prior and persistent offender as alleged in the information. After a jury trial, West was found guilty as charged in both cases. The trial court later imposed consecutive five-year sentences for each offense. West appealed his convictions, and this court affirmed. State v. West , 541 S.W.3d 635 (Mo. App. W.D. 2017).
West filed a pro se Rule 29.15 motion for post-conviction relief in each of the consolidated cases, and appointed counsel timely filed an amended motion. The amended motion asserted two grounds for vacating West's convictions and sentences: West contends that both trial and appellate counsel provided constitutionally ineffective services by failing to argue on his behalf at trial and on appeal that the State failed to prove the elements of stealing, third offense, because one of the two prior convictions submitted by the State as an element of the case did not qualify as a "stealing-related offense" contemplated by section 570.040.2 The motion court conducted an evidentiary hearing and later entered its judgment denying West's post-conviction motion.
West timely appealed.
Appellate review of a judgment denying a Rule 29.15 motion for post-conviction relief is limited to determining whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k).3 "A judgment is clearly erroneous when, in light of the entire record, the court is left with the definite and firm impression that a mistake has been made." Shockley v. State , 579 S.W.3d 881, 892 (Mo. banc 2019) (internal quotation marks omitted).
West asserts two points on appeal. First, he contends that the motion court erred in denying him post-conviction relief because trial counsel was ineffective for failing to raise in his motion for new trial the claim that the State failed to prove the elements of stealing, third offense, in that his prior conviction for "attempted theft" does not qualify as a "stealing-related" offense from section 570.040.2. Second, he argues that the motion court erred in denying him post-conviction relief because appellate counsel was also ineffective for failing to raise this issue in his direct appeal. Because the points are related, we will address them together.
To convict West of stealing, third offense, under section 570.040, the State bore the burden to prove that West had committed the instant charged offense and "previously pled guilty to or been found guilty of two stealing-related offenses committed on two separate occasions where such offenses occurred within ten years of the date of occurrence of the present offense[.]" § 570.040.1. "Evidence of prior guilty pleas or findings of guilt shall be heard by the court, out of the hearing of the jury, prior to the submission of the case to the jury, and the court shall determine the existence of the prior guilty pleas or findings of guilt." § 570.040.3. A "stealing-related offense" is defined in section 570.040.2:
As used in this section, the term "stealing-related offense" shall include federal and state violations of criminal statutes against stealing, robbery, or buying or receiving stolen property and shall also include municipal ordinances against same if the defendant was either represented by counsel or knowingly waived counsel in writing and the judge accepting the plea or making the findings was a licensed attorney at the time of the court proceedings.
In both of the underlying criminal cases, the Information in Lieu of Indictment alleged that West previously pleaded guilty on two or more separate occasions to a stealing-related offense for events that occurred within ten years of the offense with which he was charged, specifically:
Defense counsel did not object during a pre-trial hearing when the State introduced evidence of West's two prior guilty pleas supporting the felony stealing charge.4 On appeal, it is the attempted felony theft prior offense that West submits is not a "stealing-related" conviction.
"In analyzing a criminal statute, this Court determines the legislature's intent from the language of the statute, and gives effect to that intent." State v. Libertus , 560 S.W.3d 578, 581 (Mo. App. W.D. 2018) (internal quotation marks omitted). "We examine the language in the statute according to its plain and ordinary meaning." Id. (internal quotation marks omitted). "Where the statutory language is unambiguous, we need not resort to statutory construction and must give effect to the statute as written." Id. (internal quotation marks omitted). " ‘A court will look beyond the plain meaning of the statute only when the language is ambiguous or would lead to an absurd or illogical result.’ " State v. Gilmore , 508 S.W.3d 132, 135 (Mo. App. S.D. 2016) (). Conversely, "[w]e will not interpret a statute or ordinance so as to reach an absurd result contrary to its clear purpose." Leiser v. City of Wildwood , 59 S.W.3d 597, 604 (Mo. App. E.D. 2001) (). "A statute's provisions must be construed and considered together and, if possible, all provisions must be harmonized and every clause given some meaning." Gilmore , 508 S.W.3d at 135 (internal quotation marks omitted).
A person commits the offense of stealing when that person "appropriates property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion." § 570.030.1(1). As defined in section 570.040.2, the term "stealing-related offense" includes "federal and state violations of criminal statutes against stealing , robbery, or buying or receiving stolen property." (Emphasis added.) An attempt to commit a charged offense is a lesser-included offense of the charged offense. § 556.046.1(3); see also State v. Messa , 914 S.W.2d 53, 54 (Mo. App. W.D. 1996).5
To suggest that having the purpose to appropriate another's property without consent or by means of deceit or coercion and taking a substantial step toward such criminal enterprise does not constitute a criminal violation "related" to stealing is absurd and illogical. The clear purpose of the legislature in enacting section 570.040 was to impose enhanced punishment on offenders who purposely act to commit the act of stealing and engage in conduct designed to complete the commission of that crime. And a plain reading of section 570.040 clearly attaches consequences to offenders who intended to steal, committed a substantial act to complete the crime of stealing, yet failed to accomplish the crime, perhaps by some reason beyond their control and certainly against their wishes. We conclude that the plain meaning of section 570.040.2 is clear and unambiguous: the crimes of "stealing" and "attempted stealing" are both "stealing-related offense[s]."
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