Court of Appeals of Missouri, Eastern District, Fifth Division
DALE M. WRIGHT, Movant/Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of St. Louis County Honorable Robert
M. Hess, Chief Judge
Wright (Movant) appeals the judgment of the Circuit Court of
St. Louis County denying his Rule 29.15 motion for post-conviction relief without
an evidentiary hearing. On appeal, Movant argues that the
motion court erred when it denied his Rule 29.15 motion
because he pleaded facts, unrefuted by the record, that his
counsel was ineffective for failing to object when the
prosecutor called Movant a child molester during closing
arguments. Finding no error, we affirm.
28, 2012, Movant hosted a barbecue at his home. Victim, the
eleven-year-old daughter of Movant's cousin, attended the
barbecue. After the barbecue, Victim spent the night at
Movant's home because she thought that her cousin would
also be staying the night. However, Victim's cousin left
in the evening, leaving Victim alone with Movant and his
girlfriend. Later in the evening, Movant and Victim watched a
movie together in Movant's living room. Victim fell
asleep during the movie, and awoke to Movant touching her
vagina over her clothing. She flinched but otherwise laid
still. Movant then tried to put his fingers up her shorts.
Victim flinched again, and Movant stopped. Movant, realizing
Victim was awake, asked if she wanted to see his "little
boy" and asked her if she minded that he touched her.
Victim replied that she wanted to go home, and Movant left
then found a phone and tried to call her father, but was
unable to reach him. She called her father's girlfriend,
Krystal. Victim told Krystal that she was hiding in
Movant's home and that she was scared of Movant because
he had touched her. Krystal was able to contact Victim's
father, who then called the police. Police officers retrieved
Victim from Movant's home, and Movant was later
questioned by detectives and arrested.
January 2014, a jury convicted Movant of first-degree child
molestation and first-degree attempted statutory sodomy. The
trial court sentenced Movant to two concurrent ten-year
sentences. Movant appealed his conviction and sentence, which
this Court affirmed by an order and memorandum in State
v. Wright, 475 S.W.3d 702 (Mo. App. E.D. 2015). Before
this Court issued its mandate, Movant prematurely filed his
pro se Rule 29.15 motion for post-conviction relief.
The motion court issued an order to hold the premature filing
open pending the conclusion of the direct appeal. In June
2015, Movant's appointed counsel filed a timely amended
motion for post-conviction relief. In November 2015, the
motion court entered its findings of fact and conclusions of
law, denying Movant's Rule 29.15 motion without an
evidentiary hearing. This appeal follows. Movant's sole
claim of error is that the motion court clearly erred when it
determined that Movant's trial counsel was not
ineffective for failing to object when the prosecutor called
Movant a child molester during closing arguments.
entitled to an evidentiary hearing on a post-conviction
relief claim, a movant must: "(1) allege facts, not
conclusions, that, if true, would warrant relief; (2) these
facts must raise matters not refuted by the record and files
in the case; and (3) the matters complained of must have
resulted in prejudice to the movant." Barnett v.
State, 103 S.W.3d 765, 769 (Mo. banc 2003). An
evidentiary hearing is not required if the record
conclusively shows that the movant is not entitled to relief.
Id. "When the requested evidentiary hearing
involves a claim of ineffective assistance of counsel, the
movant must allege unrefuted facts establishing that (1)
counsel's performance did not conform to the degree of
skill, care, and diligence of a reasonably competent attorney
and (2) he was thereby prejudiced." Matthews v.
State, 175 S.W.3d 110, 113 (Mo. banc 2005).
review of decisions under Rule 29.15 is limited to whether
the motion court's findings of fact and conclusions of
law are clearly erroneous. Rule 29.15(k). On review, the
motion court's findings and conclusions are
"presumptively correct." Wilson v. State,
813 S.W.2d 833, 835 (Mo. banc 1991). We will conclude the
motion court's findings and conclusions are clearly
erroneous only if, after a review of the entire record, we
are left with the definite and firm impression that the
motion court made a mistake. Moore v. State, 328
S.W.3d 700, 702 (Mo. banc 2010).
argues that the motion court clearly erred when it denied his
Rule 29.15 motion because he pleaded facts, unrefuted by the
record, that his trial counsel was ineffective for failing to
object when the prosecutor called Movant a child molester in
closing argument. Respondent contends that the motion court
did not err because the evidence at trial supported the
prosecutor's characterization of Movant as a child
remarks Movant complains of occurred during rebuttal closing
argument when the prosecutor argued that, "[Movant] is a
child molester, and he needs to be held accountable. Find him
guilty and do what is right." The prosecutor had also
argued during initial closing argument that, "I
don't know how you would think to make up a comment like,
do you want to ...