Court of Appeals of Missouri, Eastern District, Fourth Division
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.
Patricia L. Cohen, Judge
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
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
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
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 ...