State of Missouri, Respondent v. Andrew Lyons, Appellant. Andrew Lyons, 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

Case Style: State of Missouri, Respondent v. Andrew Lyons, Appellant. Andrew Lyons, Appellant v. State of Missouri, Respondent. Case Number: SC85269 & SC85272 Handdown Date: 03/30/2004 Appeal From: Circuit Court of Scott County, Hon. W.H. Winchester, III Counsel for Appellant: Frederick A. Duchardt Counsel for Respondent: Stephanie M. Morrell Opinion Summary: Andrew Lyons was convicted of two counts of first-degree murder and one count of involuntary manslaughter and was sentenced to death. This Court affirmed the convictions and sentences, State v. Lyons, 951 S.W.2d 584 (Mo. banc 1997), and the denial of Lyons' subsequent request for post-conviction relief, Lyons v. State, 39 S.W.3d 32 (Mo. banc 2001). Lyons asked the circuit court to reopen his post-conviction relief proceedings, alleging he was mentally incompetent to proceed to trial. The court denied his request, and he appeals. AFFIRMED. Court en banc holds: (1) In SC85272, Lyons argues his post-conviction relief counsel abandoned him by failing to claim his appellate counsel was ineffective for failing to claim, during his direct appeal, that he was mentally incompetent. This claim is merely one of ineffective assistance of post-conviction counsel, which is categorically unreviewable. Lyons is not entitled to relief. (2) In SC85269, Lyons sought an order nunc pro tunc (Latin for "now for then") to reopen his post-conviction proceedings. This argument fails, however, for such orders only apply to correct clerical errors, which Lyons does not allege occurred. Citation:

Opinion Author: PER CURIAM Opinion Vote: AFFIRMED. All concur. Opinion: Andrew Lyons was convicted of two counts of murder in the first degree and one count of involuntary manslaughter. He was sentenced to death on both counts of murder. The judgment was affirmed on direct appeal. State v. Lyons, 951 S.W.2d 584 (Mo. banc 1997), cert. denied, 522 U.S. 1130 (1998). Thereafter, this Court affirmed the denial of Lyons' request for post-conviction relief. Lyons v. State, 39 S.W.3d 32 (Mo. banc 2001), cert. denied, 534 U.S. 976 (2001). Lyons now appeals the trial court's judgments in the two above-captioned cases, denying his requests to reopen the post- conviction relief motion to bring his claim that he was mentally incompetent to proceed during the trial. In the first case, Andrew Lyons v. State of Missouri, Lyons argues that his post-conviction counsel abandoned him by failing to raise the claim of ineffective assistance of appellate counsel who failed to raise the claim of mental incompetence in the direct appeal. In support of this argument, Lyons' post-conviction counsel does not state he abandoned Lyons, but rather states in his affidavit that he had no strategic reason for failing to raise the claim that appellate counsel was ineffective in failing to raise the competency issue, that he did not recognize the merits of this argument, and that had he so recognized he would have raised the argument. Despite the label Lyons' gives his claim, it is merely one of ineffective assistance of post-conviction counsel. Claims of ineffective assistance of post-conviction counsel are categorically unreviewable, and Lyons is not entitled to relief. Barnett v. State, 103 S.W.3d 765 (Mo. banc 2003), cert. denied, 124 S.Ct. 172 (2003). In the second case, State of Missouri v. Andrew Lyons, Lyons sought an order nunc pro tunc to reopen the post- conviction motion so as to permit a full hearing on his mental competence at the time of trial. This argument fails because the nunc pro tunc power applies only to clerical errors. State v. Carrasco, 877 S.W.2d 115, 117 (Mo. banc 1994); Rule 29.12(c). The judgments are affirmed. All concur. Separate Opinion: None

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.