Luster Reynolds, Appellant, v. State of Missouri, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Luster Reynolds, Appellant, v. State of Missouri, Respondent. Case Number: 72944 Handdown Date: 09/15/1998 Appeal From: Circuit Court of St. Louis County, Hon. John F. Kintz Counsel for Appellant: Dave Hemingway Counsel for Respondent: Jill C. LaHue Opinion Summary: After the trial court found Defendant knowingly and voluntarily pled guilty to tampering in the first degree, Defendant sought post-conviction relief under Rule 24.035. Defendant appeals the motion court's denial of his post-conviction relief. AFFIRMED. Division One holds: The motion court did not err in that: (1) Defendant was not entitled to an evidentiary hearing on his Rule 24.035 motion that counsel was ineffective for failing to investigate a witness; (2) the motion court acted properly in refusing to issue findings of fact and conclusions of law on Defendant's claim that counsel and the court failed to inform him of the enhanced minimum prison term, and (3) the motion court was correct in denying an evidentiary hearing on Defendant's claims that neither counsel nor the court informed him that he would be required to serve eighty percent of his sentence, and that his due process rights were violated by the application of an enhanced minimum prison term without notice or an opportunity to challenge the proof of his prior remands to the Department of Corrections in an adversarial hearing. Citation: Opinion Author: James A. Pudlowski, Presiding Judge Opinion Vote: AFFIRMED. Crandall, and Ahrens, J.J., concur. Opinion:

Luster Reynolds (Defendant) pled guilty on May 14, 1996, as a prior and persistent offender, to tampering in the first degree, a class C felony in violation of Section 569.080.1(2) RSMo (1994), in the circuit court of St. Louis County. During the guilty plea hearing, Defendant was advised of his constitutional right to a trial. The court questioned Defendant as to whether his plea was knowingly and voluntarily made. Defendant also was questioned about the quality of defense counsel's assistance. After finding Defendant's plea was voluntary, and that defense counsel's assistance was effective, the court accepted Defendant's guilty plea. On June 21, 1996, the court sentenced Defendant to six years imprisonment. On September 20, 1996, Defendant timely filed his pro se motion for post-conviction relief to vacate, set aside or correct judgment or sentence pursuant to Rule 24.035 alleging ineffective assistance of counsel. Defendant filed a pro se amendment on October 25, 1997 and a Special Conflicts Public Defender was appointed to provide the Defendant with post-conviction counsel on December 3, 1996. An amended motion to vacate, set aside, or correct judgment and request for evidentiary hearing was filed on March 3, 1997. The motion court issued findings of fact and conclusions of law on June 18, 1997, and determined that there was no support in the record to set aside, vacate, or correct Defendant's sentence. Defendant's request for an evidentiary hearing was denied. This appeal followed. Defendant's pro se and amended motions before the motion court made the following claims now considered on appeal: that counsel was ineffective for failing to investigate claims; that neither counsel nor the court informed him of the enhanced minimum prison term prompted by his prior offender status; that neither counsel nor the court informed him that he would be required to serve eighty percent of his sentence; and that his due process rights were violated by the application of an enhanced minimum prison term without notice or proof of his prior remands to the Department of Corrections in an adversarial hearing. Defendant argues the motion court erred in denying his motion for post-conviction relief under Rule 24.035. In an appeal from a motion court's action on a motion filed under Rule 24.035, appellate review is limited to a determination of whether the findings of fact and conclusions of law are clearly erroneous. Rule 24.035 (k). The findings and conclusions of the motion court are 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. Leisure v. State, 828 S.W.2d 872, 874 (Mo. banc 1992). Defendant's first point argues the motion court erred in denying, without an evidentiary hearing, his Rule 24.035 motion that counsel was ineffective for failing to investigate a witness. To be entitled to an evidentiary hearing, Defendant must: (1) allege facts, not conclusions, warranting relief; (2) the factual allegations may not be refuted by the record; and (3) the matters complained of must prejudice Defendant. State v. Blankenship, 830 S.W.2d 1, 16 (Mo. banc 1992). An

evidentiary hearing is not required if the motion court determines that the motion, files and records of the case conclusively show Defendant is not entitled to relief. Rule 24.035(h); Cammann v. State, 785 S.W.2d 763, 764 (Mo. App. E.D. 1990). Once a guilty plea has been entered, effectiveness of counsel is relevant only to the extent that it affects the voluntariness of the plea. Roland v. State of Missouri, 824 S.W.2d 526, 529 (Mo. App. S.D. 1992). To prevail on a claim of ineffective counsel, Defendant must establish that his counsel failed to exercise the customary skill and diligence that reasonably competent counsel would provide under similar circumstances, and second, Defendant must show that he was thereby prejudiced. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Defendant must also overcome the presumption that counsel's strategy was sound. State v. Grays, 856 S.W.2d 87, 93 (Mo. App. E.D. 1993). To show prejudice, Defendant must establish that but for counsel's errors, he would not have pled guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 53, 106 S.Ct. 366, 367, 88 L.Ed.2d 203 (1985). The claim that counsel was ineffective for failing to investigate a possible witness requires identification of: (1) who the witness is, (2) the information to which he or she would have testified, (3) whether the witness was available to testify, and (4) whether or not counsel was informed of the possible witness. State v. Pendas, 855 S.W.2d 512, 516 (Mo. App. W.D. 1993). Defendant claimed there was a female witness, but failed to allege sufficient facts to demonstrate he presented counsel with adequate information to locate and identify the witness. Defendant merely stated the witness was named "Brigette." Defendant failed to assure that any such witness would be available to testify, to what facts the witness would testify, and that such testimony would have been relevant. Consequently, Defendant failed to meet the burden required to claim counsel was ineffective. The motion court was not clearly erroneous in denying Defendant's claim of ineffective counsel without an evidentiary hearing. Point denied. Defendant's second point argues the motion court clearly erred in failing to issue findings of fact and conclusions of law on his claim that defense counsel and the court failed to inform him of the enhanced minimum prison term prompted by his prior and persistent offender status. Defendant raised this claim in his pro se "Motion to Supplement" his original pro se post-conviction motion. Rule 24.035(g) states that "the amended motion shall not incorporate by reference material contained in any previously filed motion." Contrary to this provision, Defendant sought to incorporate the previously filed "supplemental" pro se motion by reference into the amended motion by photocopying it and stapling it to the amended motion. Accordingly, the motion court was correct in denying consideration of the allegations in the pro se portion of the amended motion. Rule 24.035(g); Cross v. State, No. 72385, slip.op. at 3 (Mo. App. E.D. May 19, 1998).

Point denied. Defendant asserts three additional claims that the motion court erred in denying him an evidentiary hearing. Each of these claims fails upon appeal: that counsel did not inform him that he would be required to serve eighty percent of his sentence; that the court failed to inform him that he would be required to serve eighty percent of his sentence; and that his due process rights were violated by the application of an enhanced minimum prison term without notice or an opportunity to challenge the proof of his prior remands to the Department of Corrections in an adversarial hearing. Defendant raised these claims in his pro se "Motion to Supplement" the original pro se motion, and then photocopied it and stapled it to the back of the amended motion. Rule 24.035(g) states that "the amended motion shall not incorporate by reference material contained in any previously filed motion." Because this portion of Defendant's amended motion violates Rule 24.035(g), the motion court was correct in denying consideration of the allegations. Rule 24.035(g); Cross v. State, No. 72385, slip.op. at 3 (Mo. App. E.D. May 1998); Myers v. State 941 S.W.2d 889, 890 (Mo. App. S.D. 1997). Point denied. In his oral argument, Defendant emphatically argued that post-conviction counsel was ineffective for failing to follow the procedural guidelines of Rule 24.035(g) regarding amended motions. Defendant also argued that the record did not indicate whether appointed counsel made the determinations required by Rule 24.035(e), and therefore, a presumption arose that counsel failed to comply with that rule. Luleff v. State, 807 S.W.2d 495, 498 (Mo. banc 1991). These allegations were presented solely in the first point on appeal, and for the reasons stated under point one, we find that Defendant failed to meet his burden of showing ineffective assistance of counsel. Judgment is affirmed. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.