Court of Appeals of Missouri, Southern District, Second Division
APPEAL FROM THE CIRCUIT COURT OF DUNKLIN COUNTY. Honorable John C. Spielman, Associate Circuit Judge.
For Appellant: SCOTT THOMPSON, St. Louis, MO.
For Respondent: ADAM S. ROWLEY, Jefferson City, MO.
MARY W. SHEFFIELD, P.J. - OPINION AUTHOR. NANCY STEFFEN RAHMEYER, J. - CONCURS. GARY W. LYNCH, J. - CONCURS.
MARY W. SHEFFIELD, J.
Eddie Wayne Smith (" Movant" ) appeals from the motion court's denial of his Rule 29.15 motion for post-conviction relief. Movant's post-conviction motion challenged his convictions for enticement of a child and for attempted second-degree statutory rape. See § § 566.034, 566.151. Movant raises three claims of ineffective assistance of counsel. Movant's claims are without merit, and the motion court's judgment is affirmed.
Factual and Procedural Background
In November 2008, Movant sent inappropriate text messages to a 12-year-old girl. The girl's parents discovered the messages, contacted the authorities, and ultimately turned the girl's phone over to Officer Jeremy Yates (" Officer Yates" ) of the Kennett Police Department.
Officer Yates contacted Detective Tim Trowbridge (" Detective Trowbridge" ) of the Kennett Police Department to assist with the investigation. Detective Trowbridge, posing as the girl, engaged in a text message conversation with Movant. During that conversation Movant indicated he wanted to meet and have sex even though the text conversation made it plain that the " girl" was only 14 years old.
A meeting was arranged, and Movant was arrested when the officers located him near the arranged meeting place. The officers found the cell phone used to send the text messages in Movant's vehicle. Movant subsequently made a number of inculpatory statements.
Movant was charged with enticement of a child and attempted first-degree statutory rape. Trial counsel filed a motion to suppress the cell phone found in Movant's van and the statements Movant made after his arrest, both of which the trial court denied. Movant was tried by a jury, and the jury found him guilty on both counts. On appeal, this Court reversed Movant's conviction for attempted first-degree statutory rape and entered a conviction for attempted second-degree statutory rape because all the evidence showed Movant believed the " girl" was 14 years old. Smith, 330 S.W.3d at 556. Movant's convictions were otherwise affirmed. Id.
After his re-sentencing, Movant timely sought post-conviction relief. In his amended motion, Movant raised four claims for relief: (1) that trial counsel provided ineffective assistance of counsel for failing to raise a double jeopardy claim; (2) that appellate counsel was ineffective for failing to raise a claim in Movant's direct appeal arguing that the trial court erred in denying the motion to suppress the cell phone; (3) that appellate counsel was ineffective for failing to raise a claim in Movant's direct appeal arguing that the trial court erred in denying the motion to suppress the statements Movant made after his arrest; and (4) that trial counsel was ineffective for encouraging Movant to waive his right to a penalty phase trial after the remand in his direct appeal. The trial court entered its judgment denying all Movant's claims. Movant appeals, arguing error in the motion court's rejection of the first three claims.
Standard of Review
Each of Movant's claims on appeal involves alleged ineffective assistance of counsel, so the following principles govern our review of his claims. " There are two components to a claim of ineffective assistance of counsel." Tilley v. State, 202 S.W.3d 726, 731 (Mo App. S.D. 2006). " First, a movant must show that 'counsel's performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney[.]" ' Id. (quoting State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998)). " Second, . . . the movant must demonstrate that he or she was prejudiced by counsel's performance." Id. at 732. " To demonstrate prejudice, a movant must show that, but for counsel's poor performance, there is a reasonable probability that the outcome of the court proceeding would have been different." Id. Furthermore, " [o]ur review of a claim of ineffective assistance of appellate counsel is governed by the same standard as that employed regarding claims concerning trial counsel[.]" Williams v. State, 342 S.W.3d 433, 435 (Mo. App. E.D. 2011). Finally, a hearing is
not required in a post-conviction case if " the motion and the files and records of the case conclusively show that the movant is entitled to no relief[.]"  Rule 29.15(h). And, appellate review of the motion court's action in a post-conviction case is " limited to a determination of whether the findings and ...