Shelton v. State

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Appeal from the Circuit Court of St. Charles County. Honorable Nancy L. Schneider.

Amanda P. Faerber, Assistant Public Defender, St. Louis, MO, for appellant.

Daniel N. McPherson, Assistant Attorney General, Jefferson City, MO, for respondent.

Patricia L. Cohen, Judge. Lisa S. Van Amburg, P.J., and Philip M. Hess, J., concur.

OPINION

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Patricia L. Cohen, Judge

Introduction

Blake Shelton (Movant) appeals the judgment of the St. Charles County Circuit Court denying his Rule 29.15 motion for post-conviction relief following an evidentiary hearing. Movant claims that the motion court erred in denying his claims that: (1) trial counsel was ineffective in failing to object to the prosecutor's statements and evidence regarding Brian Gasperoni's and John Johnson's guilty pleas to the same offense for which Movant was being tried; and (2) appellate counsel was ineffective in failing to assert that the trial court erred in admitting evidence of Mr. Gasperoni's and Mr. Johnson's guilty pleas. We affirm.

Factual and Procedural Background

In the light most favorable to the verdict, the evidence at trial revealed the following: At approximately 4:00 a.m. on June 24, 2007, Mr. Johnson drove Movant and Mr. Gasperoni to St. Charles Lanes to steal money from the bowling alley. Movant " ripped open" the door of the bowling alley and entered with Mr. Gasperoni. Movant carried a rifle and Mr. Gasperoni had a pistol. Inside the building, Movant encountered Michael Lee Childs, the janitor on duty, and asked him the location of and code to the safe. When Mr. Childs told Movant he did not know the code, Movant shot his rifle at the lock and removed the money from the safe. Movant ordered Mr. Gasperoni to " tie up" Mr. Childs, and Mr. Gasperoni complied. Movant and Mr. Gasperoni removed coins from the vending, cigarette, and game machines and took cigarettes and liquor from the bar. Movant and Mr. Gasperoni left

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the bowling alley, and Mr. Johnson drove them away.

The State charged Movant, Mr. Gasperoni, and Mr. Johnson separately with robbery in the first degree and armed criminal action. The State dismissed the armed criminal action charges against Mr. Gasperoni and Mr. Johnson and both men pleaded guilty to robbery in the first degree prior to Movant's trial. On the first day of Movant's trial, the State dismissed the armed criminal action charge against Movant.

At trial, during his opening statement, the prosecutor informed the jury that Mr. Gasperoni and Mr. Johnson would testify " pursuant to a plea agreement." He told the jury that he was " not ashamed" of the plea deals they received and wanted the jury to know that they " agreed to plead guilty to robbery in the first degree. The exact charge with, the exact punishment range."

Trial counsel objected, stating at side bar, that, " The Court is aware he nolle prossed the armed criminal action against my client yesterday. By opening this door, I am going to tell this jury that he nolle prossed that charge yesterday." The State informed the court " [t]hat's where I was going."

On the record, the prosecutor continued his opening statement as follows:

Now, as part of the agreement I did dismiss the armed criminal action charge for using a weapon in commission of this robbery. But they are charged with robbery first. . . . I dismissed it against [Movant] as well because it's important that all three of them are found guilty of exactly the same crime. . . . The defendants that have pled guilty, Gasperoni and Johnson, have no specific agreement on what sentence they'll receive. They basically are going to throw themselves on the mercy of the judge.

During the State's presentation of evidence, Mr. Gasperoni testified that he voluntarily implicated himself, was charged in connection with the case, and " was throwing [him]self on the mercy of the court" in exchange for his testimony. Regarding his plea agreement, Mr. Gasperoni provided the following testimony:

[State]: You understand you have been given no reduced charge, you are pleading guilty to robbery first?

[Gasperoni]: Yes, sir.

[State]: You face the full range of ...