Movant claim in Missouri

1991See Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989), cert. denied, — U.S. -, 110 S.Ct. 186 , 107 L.Ed.2d 141 (1989).

1991See Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989), cert. denied, — U.S. -, 110 S.Ct. 186 , 107 L.Ed.2d 141 (1989).

1991See Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989), cert. denied, — U.S. -, 110 S.Ct. 186 , 107 L.Ed.2d 141 (1989).

1991See Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989), cert. denied, — U.S. -, 110 S.Ct. 186 , 107 L.Ed.2d 141 (1989).

1991See Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989), cert. denied, — U.S. -, 110 S.Ct. 186 , 107 L.Ed.2d 141 (1989).

1991See Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989), cert. denied, — U.S. -, 110 S.Ct. 186 , 107 L.Ed.2d 141 (1989).

2012S.D.2007). “ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000) (quoting Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 2068 80 L.Ed.2d 674 (1984)). “ ‘If either the performance or the prejudice prong of the test is not met, then we need not consider the other, and Movant’s claim of ineffective assistance of counsel must fail.’ ” Chaney, 223 S.W.3d at 206 (quoting Patrick v. State, 160 S.W.3d 452, 455 (Mo.App.

2011Beaeh, 220 S.W.3d at 363 . “ ‘If either the performance or the prejudice prong of the test is not met, then we need not consider the other, and Movant’s claim of ineffective assistance of counsel must fail.’ ” Chaney v. State, 223 S.W.3d at 206 (quoting Patrick v. State, 160 S.W.3d 452, 455 (Mo.App.

2025As explained by our Supreme Court in Nelson: “A movant may challenge counsel’s assistance at sentencing as ineffective.” Swallow v. State, 398 S.W.3d 1, 6 (Mo. banc 2013).

2025“A movant may challenge counsel’s assistance at sentencing as ineffective.” Swallow v. State, 398 S.W.3d 1, 6 (Mo. banc 2013).

2022Vogl, 437 S.W.3d at 226-228 (stating that the timeliness of a pro se motion is reflected in the time stamp placed upon it when it is received into the clerk’s office); Dorris v. State, 360 S.W.3d 260, 267 (Mo. banc 2012); Daniels v. State, 31 S.W.3d 121, 123 (Mo.App. 2000) (stating that timely mailing does not equate to timely filing).

2017Discussion Before we may reach the merits of Movant’s claim, we must first examine whether Movant’s Amended Motion was timely filed as “[i]t is the court’s duty to enforce the mandatory time limits ... in the post-conviction rules.” Dorris v. State, 360 S.W.3d 260, 268 (Mo. banc 2012).

2022Following the appointment of post-conviction counsel, an Amended Motion was timely filed in which Movant alleged, inter alia, that: 1) “Trial counsel was ineffective for failing to either compel the production of the CO Perkin[ ]s[’s] statement, or depose CO Perkins….”; 2) “Trial counsel was ineffective for failing to subpoena the entirety of the surveillance video….”; 3) “Trial counsel was ineffective for . . . failing to properly investigate[ ] [and] failing to conduct depositions.”; and 4) “Trial counsel was ineffective for failing to seek a case load hearing under RSMo. 600.063 simultaneou

2022To successfully state a claim for ineffective assistance of counsel, the movant must allege facts “demonstrating: (1) that counsel’s performance did not conform to the degree of skill, care, 2 Additional facts relevant to Movant’s points on appeal will be set forth, as needed, in the discussion section below. 3 and diligence of a reasonably competent attorney, and (2) that counsel’s deficient performance actually prejudiced the movant.” Id. at 531 .

2016Id. at 826 . 3 In Footnote 3 of Movant’s brief, he argues that the amended motion was due on February 26, 2014.

2016Because the motion court correctly permitted the untimely filing of the amended motion and proceeded to resolve its claims on the merits, see Moore, 458 S.W.3d at 826 , we now address the merits of Movant’s claim on appeal.

2021On November 22, 2019, Movant’s attorney filed an “Amended Motion to Vacate or Correct Judgment and Sentence and Request for Evidentiary Hearing” as well as a “Motion for Court to Consider Movant’s Amended Motion as Timely Filed Under Sanders v. State, 807 S.W.2d 493 (Mo. Banc. 1991)” and an accompanying affidavit in which Movant’s attorney acknowledges that Movant’s motion was filed more than three months beyond the deadline.

2021Movant moved to amend the motion court’s judgment “to include a ruling on the timeliness of [Movant]’s pro se and amended motions pursuant to Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991).” The motion court did not rule on Movant’s motion to amend the judgment.

2023See id. (“If a potential witness’s testimony would not unqualifiedly support a defendant, the failure to call such a witness does not constitute ineffective assistance.”).

2015A defense counsel’s decision not to call a witness is presumptively a matter of trial strategy and is “virtually unchallengeable.” Worthington v. State, 166 S.W.3d 566, 577 (Mo. banc 2005).

2023“Findings and conclusions are clearly erroneous if, after reviewing the entire record, the court is left with a definite and firm impression that a mistake has been made.” Id. (quoting Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000)).

2012S.D.2007). “ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000) (quoting Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 2068 80 L.Ed.2d 674 (1984)). “ ‘If either the performance or the prejudice prong of the test is not met, then we need not consider the other, and Movant’s claim of ineffective assistance of counsel must fail.’ ” Chaney, 223 S.W.3d at 206 (quoting Patrick v. State, 160 S.W.3d 452, 455 (Mo.App.

2018See Simmons v. State , 100 S.W.3d 143 , 147 (Mo. App. E.D. 2003) (reversing the denial of post-conviction relief without an evidentiary hearing, and remanding for a hearing "to determine the veracity of Movant's claim that he was not informed by counsel of his right to testify").

2014On appeal, Movant only challenges the motion court’s ruling as to a single claim raised in his Rule 24.035 motion — that Movant’s plea counsel was ineffective for failing to abide by Movant’s request to interview a “key witness” named Wayne Maggard (“Maggard”), whose “testimony would have helped prove [Movant’s] innocence in this case.” We begin by noting that, in deciding to plead guilty, Movant generally waived any future complaint he might have “about trial counsel’s failure to investigate his case.” Simmons v. State, 100 S.W.3d 143, 146 (Mo.App.E.D.2003). 3 Movant’s claim that he was denie

2016See Whited, 196 S.W.3d at 82 .

2013Whited v. State, 196 S.W.3d 79, 82 (Mo.App.

2013This Court “has repeatedly held it will not expand the scope of abandonment to encompass perceived ineffectiveness of post-conviction counsel.” Gehrke, 280 S.W.3d at 58 (quoting Barnett v. State, 103 S.W.3d 765, 774 (Mo. banc 2003)); see also Winfield v. State, 93 S.W.3d 732, 739 (Mo. banc 2002).

2013See Winfield v. State, 93 S.W.3d 732, 737 (Mo. banc 2002) (Rule 29.15 claim was without merit when mov-ant failed to show prejudice from counsel’s alleged error).

2013This Court “has repeatedly held it will not expand the scope of abandonment to encompass perceived ineffectiveness of post-conviction counsel.” Gehrke, 280 S.W.3d at 58 (quoting Barnett v. State, 103 S.W.3d 765, 774 (Mo. banc 2003)); see also Winfield v. State, 93 S.W.3d 732, 739 (Mo. banc 2002).

2006To obtain an evidentiary hearing on a post-conviction relief motion premised on ineffective assistance of counsel, a movant must “allege facts showing that counsel’s performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney and that movant was thereby prejudiced.” Barnett v. State, 103 S.W.3d 765, 769 (Mo. banc 2003).

2005State v. Brooks, 960 S.W.2d 479, 497 (Mo. banc 1997); Rule 29.15(k).

2005State v. Brooks, 960 S.W.2d 479, 497 (Mo. banc 1997); Rule 29.15(k).

1989In Kretzer v. State, 612 S.W.2d 70, 72 [1, 2] (Mo.App.1981), this court held that a charge of inadequate investigation on the part of counsel: ... must be supported by allegations of specific information which was not discovered, that reasonable investigation would have disclosed the information and that the material so discovered would have benefited the movant in a defense of the charge.

1983In Kretzer v. State, 612 S.W.2d 70, 71 (Mo.App.1981), the court stated that the claim that an attorney has ineffectively served his client by inadequate investigation and preparation for trial must be supported by allegations and proof of specific information which was not discovered, that reasonable investigation would have disclosed the information, and that the material so discovered would have benefited the movant in the defense of the charge.

2023But under Strickland, even if plea counsel acted unreasonably in not contacting the witness or investigating the video, Movant’s claim fails because he did not demonstrate prejudice. 466 U.S. at 700 .

2019Because Movant’s defense was alibi, trial counsel testified that she did not want to focus the jury’s attention on Movant’s disability or on Victim’s work as Movant’s health care aide because those topics were not directly related either to Movant’s charges or to his defense. “[T]he reasonableness of counsel’s strategic decision-making must be viewed as of the time the decision occurred, taking into consideration the circumstances of the case.” Tucker, 468 S.W.3d at 474 (citing Strickland, 466 U.S. at 689 ).

2025Point Two Movant argues the motion court clearly erred in concluding that Movant’s plea counsel in her underlying case rendered effective assistance of counsel even though he did not file a bond motion because he believed it was “futile.” Movant states that, “had [plea counsel] filed a bond motion, there is a reasonable probability that [Movant] would have been able to get out of custody and would not have given up her right to a jury trial by pleading guilty.” Yet after a “negotiated plea of guilty, Movant’s claim of ineffective assistance of counsel is immaterial except to the extent it impi

2025Point Two Movant argues the motion court clearly erred in concluding that Movant’s plea counsel in her underlying case rendered effective assistance of counsel even though he did not file a bond motion because he believed it was “futile.” Movant states that, “had [plea counsel] filed a bond motion, there is a reasonable probability that [Movant] would have been able to get out of custody and would not have given up her right to a jury trial by pleading guilty.” Yet after a “negotiated plea of guilty, Movant’s claim of ineffective assistance of counsel is immaterial except to the extent it impi

2024To obtain an evidentiary hearing, Movant’s motion must satisfy these requirements: “(1) the motion must allege facts, not conclusions, warranting relief; (2) the facts alleged must raise matters not refuted by the files and records in the case; and (3) the matters of which movant complains must 9 have resulted in prejudice.” Morrow, 21 S.W.3d at 822–23.

2017“The purpose of an evidentiary hearing is to determine whether the facts alleged in the motion are accurate.” Morrow v. State, 21 S.W.3d 819, 827 (Mo. banc 2000) (emphasis added).

2023Movant’s Argument Under Vogl Additionally, Movant argues the Missouri Supreme Court extended the abandonment doctrine with its holding in Vogl v. State, 437 S.W.3d 218 (Mo. banc 2014).

2023We rely on these cases only where the rules are identical, as “case law interpreting a provision that is identical in both rules applies equally in proceedings under either rule.” Propst v. State, 535 S.W.3d 733 , 735 n.4 (Mo. banc 2017) (quoting Vogl v. State, 437 S.W.3d 218 , 224 n.7 (Mo. banc 2014)). 3 her remaining three points, Movant challenges Counsel’s conduct regarding her sentencing hearing, namely: Counsel’s failure to present mitigating testimony from Movant’s former roommate; Counsel’s failure to obtain and present mitigating evidence in the form of Movant’s high school counseling

2012S.D.2007). “ ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000) (quoting Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 2068 80 L.Ed.2d 674 (1984)). “ ‘If either the performance or the prejudice prong of the test is not met, then we need not consider the other, and Movant’s claim of ineffective assistance of counsel must fail.’ ” Chaney, 223 S.W.3d at 206 (quoting Patrick v. State, 160 S.W.3d 452, 455 (Mo.App.

2011Movant must show but for the conduct of his trial attorney about which he complains, he would not have pleaded guilty but would have insisted on going to trial. “ ‘If either the performance or the prejudice prong of the test is not met, then we need not consider the other, and Movant’s claim of ineffective assistance of counsel must fail.’ ” Chaney v. State, 223 S.W.3d 200, 206 (Mo.App.

2023The plea court personally addressed Movant and engaged in 5 extensive questioning of him in compliance with Rule 24.02, “ma[king] a personal determination as to [Movant’s] understanding of the waiver and the voluntariness of the plea.” State v. Taylor, 929 S.W.2d 209, 216 (Mo. banc 1996).

2003See also extent of findings and *93 conclusions in State v. Taylor, 929 S.W.2d 209, 224 (Mo.banc 1996).

1998See, Fields v. State, 572 S.W.2d 477, 483 (Mo. banc 1978); State v. Wendleton, 936 S.W.2d 120, 124 (Mo.App.

1979I “The trial court erred in denying Mov-ant’s motion to vacate judgment and sentence because Movant was denied effective assistance of counsel in that counsel failed to investigate and locate medical records, said records being readily available and if used, would have completely discredited the victim’s testimony, thus prejudicing Movant’s defense of lack of intent and making the trial a mockery of justice.” There was appointment of counsel, an evidentiary hearing, findings of fact and conclusions of law by the trial court, thus complying with the ruling in Fields v. State, 572 S.W.2d 477 (Mo