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Curry v. State

Court of Appeals of Missouri, Eastern District, Third Division

August 19, 2014

JEROME D. CURRY, Appellant,
v.
STATE OF MISSOURI, Respondent

Appeal from the Circuit Court of St. Louis County. 12SL-CC02814. Honorable Tom W. DePriest, Jr.

Andrew Zleit, Louis, MO, for appellant.

Chris Koster, Shawn Mackelprang, Jefferson City, MO, for respondent.

Gary M. Gaertner, Jr., Judge. Kurt S. Odenwald, P.J., concurs. Robert G. Dowd, Jr., J., concurs.

OPINION

Page 524

Gary M. Gaertner, Jr., Judge

Introduction

Jerome Curry (Movant) appeals from the motion court's judgment denying his motion for post-conviction relief under Rule 29.15[1] (Rule 29.15 Motion) without an evidentiary hearing. He argues his motion adequately alleged his trial counsel was ineffective for failing to request that the trial court instruct the jury on the lesser-included offense of robbery in the second degree. We affirm.

Background

Movant was charged as an accomplice with robbery in the first degree, attempted robbery in the first degree, armed criminal action, and resisting arrest. These charges arose out of an incident occurring on September 21, 2008. Movant was driving a car he owned, and he had two male passengers. Movant pulled the car up to a curb where two men (the victims) were standing, and Movant asked them for directions. One of the men bent down to talk with Movant and gave him directions. Movant drove away, but then he turned the car around and drove back to the victims. The two passengers got out of Movant's car, each of them holding guns. They pointed their guns at the victims and felt through the victims' pockets, taking a wallet from one victim. The passengers then got back into Movant's car, and Movant drove away. Movant was later identified as the driver of the car by the victim who had initially given Movant directions.

The jury convicted Movant of all counts, and the trial court sentenced Movant to concurrent sentences totaling twelve years' imprisonment. This Court affirmed his convictions and sentences on appeal. State v. Curry, 364 S.W.3d 756, (Mo. App. E.D. 2012).

Movant timely filed his Rule 29.15 Motion, which contained several allegations of ineffective assistance of trial counsel. Among them, Movant alleged that his trial counsel was ineffective for failing to request an instruction for the lesser-included offense of robbery in the second degree, arguing that as the driver of the vehicle, the jury could have found that Movant had no knowledge that the passengers of his car had guns or would use them to commit the robbery and attempted robbery. The motion court denied Movant's motion without an evidentiary hearing, finding that there was no legal basis for an instruction on second-degree robbery in the record and that any request for such an instruction would have been denied. The motion court also found that Movant's motion regarding this claim pled conclusions, not facts, and failed to show how Movant was prejudiced. This appeal follows.

Standard of Review

Our review of the motion court's denial of a motion for post-conviction relief is " limited to the determination of whether the findings of fact and conclusions of law are clearly erroneous." Hickey v. State, 328 S.W.3d 225, 227 (Mo. App. E.D. 2010). Findings and conclusions are clearly erroneous " only if, after a review of the entire record, the reviewing court is left with a definite and firm impression that a mistake has been made." Id. We affirm the motion court's judgment if it ...


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