Court of Appeals of Missouri, Eastern District, Second Division
[Copyrighted Material Omitted]
Appeal from the City of St. Louis Circuit Court. Honorable Bryan L. Hettenbach.
FOR APPELLANT: Maleaner R. Harvey, Missouri Public Defender Office, St. Louis, Missouri.
FOR RESPONDENT: Gregory L. Barnes, Assistant Attorney General, Jefferson City, Missouri.
Philip M. Hess, Judge. Sherri B. Sullivan, P.J. and Mary K. Hoff, J. concur.
Philip M. Hess, Judge.
Garvester Bracken (Movant) appeals the denial of his Rule 29.15 motion for post-conviction relief without an evidentiary hearing following his convictions for attempted deviate sexual assault, forcible rape, and two counts of second-degree domestic assault. Movant claims the motion court clearly erred in denying his motion for post-conviction relief because his trial counsel was ineffective for: (1) failing to object to cross-examination testimony that Movant was abusive towards his former spouse; and (2) failing to challenge his domestic assault convictions on the basis of double jeopardy. We affirm.
Movant was indicted on sixteen charges: six counts of forcible rape, three counts of attempted deviate sexual assault, one count of deviate sexual assault, three counts of third-degree domestic assault, two counts of second-degree domestic assault, and one count of unlawful use of a weapon. The charges stemmed from Movant's
wife's (Victim) allegations that he repeatedly committed acts of sexual assault and rape against her during the last week of March 2008. Following a trial in 2009, Movant was convicted on one count of forcible rape and one count of attempted deviate sexual assault, but the jury could not reach a decision on the remaining fourteen counts. The matter was retried in 2011. At the close of the second trial, the jury convicted Movant of attempted deviate sexual assault (Count X), forcible rape (Count XI), and two counts of second-degree domestic assault (Counts XII and XIII). The trial court sentenced him to two years' imprisonment on Count X, seventeen years' imprisonment on Count XI, and six years each on Counts XII and XIII. Counts XII and XIII were to run concurrently with each other, but consecutively to Counts X and XI, for a total of twenty-three years' imprisonment. Following an appeal, this Court affirmed his convictions in State v. Bracken, 382 S.W.3d 206 (Mo. App. E.D. 2012).
Movant subsequently filed a pro se Rule 29.15 motion for post-conviction relief. Appointed counsel filed an amended motion alleging ineffective assistance of counsel. In January 2014, the motion court entered its judgment denying post-conviction relief without an evidentiary hearing, finding that Movant failed to allege facts unrefuted by the record that would entitle him to relief. Movant appeals.
Standard of Review
Appellate review of the denial of a Rule 29.15 motion is limited to a determination of whether the motion court's findings of fact and conclusions of law are clearly erroneous. Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009). The motion court's judgment is clearly erroneous only if, after a review of the record, we are left with the definite and firm impression that a mistake has been made. Worthington v. State, 166 S.W.3d 566, 572 (Mo. banc 2005). The motion court's findings are presumed correct. Id.
To establish ineffective assistance of counsel, the movant must prove by a preponderance of the evidence that: (1) counsel failed to exercise the level of skill and diligence of a reasonably competent attorney; and (2) that he was thereby prejudiced. Zink, 278 S.W.3d at 175 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To satisfy the prejudice prong under Strickland, the movant must show that absent the alleged errors, there is a reasonable probability that the outcome would have been different. Zink, 278 S.W.3d at 176.
An evidentiary hearing is not required unless: (1) the motion alleges facts, not conclusions, warranting relief; (2) the facts alleged are not refuted by the files and records in the case; and (3) the matters complained of resulted in ...