Court of Appeals of Missouri, Eastern District, Third Division
[Copyrighted Material Omitted]
Appeal from the Circuit Court of Cape Girardeau County. Hon. William L. Syler.
FOR APPELLANT: Jessica Hathaway, St. Louis, MO.
FOR RESPONDENT: Chris Koster, Attorney General; Jennifer A. Rodewald, Asst. Attorney General, Jefferson City, MO.
ROBERT G. DOWD, JR., Judge Kurt S. Odenwald, P. J. and Gary M. Gaertner, Jr., J., concur.
ROBERT G. DOWD, JR.
Ryan Patterson (" Movant" ) appeals the motion court's denial of his Rule 29.15 motion for post-conviction relief. Movant argues the motion court clearly erred in denying his Rule 29.15 motion for post-conviction relief because: (1) Movant's appellate counsel was ineffective for failing to
raise a Batson v. Kentucky claim; (2) Movant's appellate counsel was ineffective for failing to raise a claim about the trial court's error in sustaining the State's objections to Movant's motion to cross-examine the State's witness Michelle Lawrence about a polygraph test she took that came back inconclusive; and (3) Movant's trial counsel was ineffective for consenting to a jury being picked from Pemiscot County. We affirm.
Movant lived with his girlfriend, Michelle Lawrence, who was in the process of divorcing John Lawrence. John Lawrence lived with his girlfriend, Jamie Orman, who was seven months pregnant. Jamie Orman also had three children with her ex-husband who were present on the night of the incident, Derrick Orman, Jacob Orman, and Travis Orman.
Movant and Michelle Lawrence plotted to kill John Lawrence before the divorce was final so that Michelle Lawrence could obtain the proceeds of John Lawrence's insurance policies. Movant enlisted the help of Samuel Hughes (" Ray Ray" ) on the night of the incident. Movant planned to kill John Lawrence and then burn his house down.
Movant and Ray Ray went to John Lawrence's house and broke in through the back door at around 5:00 a.m. Movant shot Derrick Orman and Jamie Orman. Both Derrick Orman and Jamie Orman died from their gunshot wounds. Jamie Orman's seven month old fetus died from lack of oxygen due to Jamie Orman's death. Jacob Orman and Travis Orman were not injured.
Movant was charged with three counts of first-degree murder. Movant was convicted by a jury of three counts of first-degree murder, Section 569.020. Movant was sentenced to three consecutive terms of life imprisonment without the possibility of parole. Movant's convictions were affirmed on direct appeal. State v. Patterson, 382 S.W.3d 262 (Mo. App. E.D. 2012).
Thereafter, Movant filed a pro se Rule 29.15 motion for post-conviction relief. Counsel was subsequently appointed and an amended motion was filed. The motion court denied Movant's motion for post-conviction relief after an evidentiary hearing. This appeal follows.
Before addressing the merits, we are compelled under Moore v. State to first examine the timeliness of amended motions in each post-conviction case on appeal, even if the issue is not raised by either party. 458 S.W.3d 822, 2015 WL 1735533 (Mo. banc 2015). If it is determined that an amended motion filed by appointed counsel is untimely, but there has been no independent inquiry into abandonment, then the case should be remanded to the motion court for such inquiry. Id. It is our duty to enforce the mandatory timelines in the post-conviction rules, but " the motion court is the appropriate forum to conduct such an inquiry" into abandonment. Id.
Rule 29.15(g) provides that where, as here, an appeal of the judgment sought to be vacated, set aside or corrected is taken, " the amended motion shall be filed within sixty days of the earlier of: (1) the date both the mandate of the appellate court is issued and counsel is appointed or (2) the date both the mandate of the appellate court is issued and an entry of appearance is filed by any counsel that is not appointed but enters an appearance on behalf of movant." In this case, counsel was appointed on January 10, 2013, after the mandate was issued. When counsel entered
her appearance, she requested a thirty-day extension of time pursuant to Rule 29.15(g). Therefore, the amended motion was due April 10, 2013, and the amended motion was filed on April 10, 2013. Because the motion was timely, there is no need to conduct an inquiry into abandonment. Thus, we proceed to review the merits of Movant's appeal.
Our review of the motion court's action under Rule 29.15 " shall be limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous." Rule 29.15(k). We presume the motion court's denial of post-conviction relief is correct. McIntosh v. State, 413 S.W.3d 320, 323 (Mo. banc 2013). Findings and conclusions are clearly erroneous only if, after reviewing the entire record, we are left with the definite and firm impression that a mistake has been made. Id.
To prevail on a claim of ineffective assistance of counsel, the movant must establish by a preponderance of the evidence that: (1) trial counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances; and (2) counsel's deficient performance prejudiced defendant. Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006) (citing Strickland v. Washington, 466 U.S. 668, 687-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). To satisfy the prejudice prong, the movant must demonstrate that, absent the claimed errors, there is a reasonable probability that the outcome would have been different. Zink v. State, 278 S.W.3d 170, 176 (Mo. banc 2009). If a movant fails to satisfy one prong, we need not consider the other. Sanders v. State, 738 S.W.2d 856, 857 (Mo. banc 1987).
In his first point, Movant, who is African-American, argues the motion court clearly erred in denying his Rule 29.15 motion for post-conviction relief because Movant's appellate counsel was ineffective for failing to raise the claim that the State struck African-American venireperson Lillie Wilbourn (" Wilbourn" ) peremptorily in violation of Batson v. Kentucky. We disagree.
The standard for showing ineffectiveness of appellate counsel is essentially the same as that for trial counsel: the movant must show that appellate counsel breached a duty and prejudice resulted. Cummings v. State,445 S.W.3d 648, 650-51 (Mo. App. E.D. 2014). Where a movant alleges ineffectiveness based on failure to raise a particular claim of error on appeal, the movant must show that the claim would have required reversal had it been brought, and that the error was so obvious from the record that a reasonably competent attorney would have recognized and asserted it. Id. Appellate counsel has no duty to present every issue asserted in ...