Court of Appeals of Missouri, Southern District, Second Division
ALLEN D. GILES, Movant-Appellant,
STATE OF MISSOURI, Respondent-Respondent.
FROM THE CIRCUIT COURT OF GREENE COUNTY Honorable Thomas E.
D. Giles ("Movant") voluntarily, knowingly, and
intelligently waived his constitutional right to assistance
of counsel and proceeded to trial without counsel on charges
of first-degree statutory rape and first-degree statutory
sodomy. See sections 566.032 and
566.062.He was convicted of those
charges following a jury trial and sentenced to two
consecutive terms of life imprisonment. His convictions were
affirmed on direct appeal to this court in State v.
Giles, 386 S.W.3d 822 (Mo.App. 2012). In Giles,
we held that the trial court committed no error in allowing
the State to elicit testimony pertaining to Movant's
prior sex crimes because Movant had, by way of his
examination of his own witnesses, "opened the door"
to such evidence. Id. at 825-26.
thereafter sought Rule 29.15 post-conviction relief. In his amended motion, Movant claimed his
self-representation amounted to constitutionally ineffective
assistance of counsel, in that, by opening the door to
evidence of prior sex crimes, Movant did not act as a
reasonably competent attorney and he was thereby prejudiced.
Following an evidentiary hearing, the motion court entered
its judgment denying this claim concluding that "Movant
could not be ineffective for opening the door to evidence of
other crimes . . . because Movant knowingly, voluntarily, and
intelligently waived his right to counsel and represented
himself at trial, therefore, he cannot now claim that he was
ineffective counsel for himself." Movant timely appeals
that judgment. Finding no clear error, we affirm.
appeal, our review of the denial of a Rule 29.15 motion is
limited to determining whether the motion court's
findings of fact and conclusions of law are clearly
erroneous. Rule 29.15(k); Williams v. State, 168
S.W.3d 433, 439 (Mo. banc 2005). A motion court's
findings are presumed correct. Worthington v. State,
166 S.W.3d 566, 572 (Mo. banc 2005). Such findings and
conclusions are considered clearly erroneous only if a full
review of the record leaves us with "a definite and firm
impression that a mistake has been made." Zink v.
State, 278 S.W.3d 170, 175 (Mo. banc 2009) (internal
quotation marks omitted).
criminal defendant has a right to conduct his or her defense,
which includes the right to waive the assistance of counsel
and proceed without counsel. Faretta v. California,
422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). To waive
counsel, "the accused must 'knowingly and
intelligently' forgo those relinquished benefits."
Id. at 835, 95 S.Ct. at 2541. Here, the motion
court's finding that Movant's waiver was voluntary,
knowing, and intelligent is presumptively correct, and Movant
does not contend otherwise on appeal.
instead, asserts a Strickland v. Washington, 466
U.S. 668, 684, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674 (1984),
ineffective assistance of counsel claim. He contends that by opening the door to
evidence of prior sex crimes, he violated "his rights to
due process of law and to the effective assistance of
counsel, as guaranteed by the Sixth and Fourteenth Amendments
to the United States Constitution and by Article I, Sections
10 and 18(a) of the Missouri Constitution[.]" This claim
is not cognizable as a constitutional violation under Rule
29.15, however, because Movant waived the very constitutional
provision he now invokes.
United States Supreme Court in Strickland set forth
the standard by which constitutional ineffective assistance
of counsel is determined. In doing so, the court noted that
"the Sixth Amendment right to counsel exists, and is
needed, in order to protect the fundamental right to a fair
trial [as guaranteed through the Due Process Clauses]."
The Court then elaborated on the scope of the Counsel Clause
of the Sixth Amendment and its role in
ensuring a fair trial:
Because of the vital importance of counsel's assistance,
this Court has held that, with certain exceptions, a person
accused of a federal or state crime has the right to have
counsel appointed if retained counsel cannot be obtained.
That a person who happens to be a lawyer is present at trial
alongside the accused, however, is not enough to satisfy the
constitutional command. The Sixth Amendment recognizes the
right to the assistance of counsel because it envisions
counsel's playing a role that is critical to the ability
of the adversarial system to produce just results. An accused
is entitled to be assisted by an attorney, whether retained
or appointed, who plays the role necessary to ensure that the
trial is fair.
Id. at 685, 104 S.Ct. at 2063 (internal citations
omitted). The Court went on to state that, for the above
reasons, it has recognized that "'the right to
counsel is the right to the effective assistance of
counsel.'" Id. at 686, 104 S.Ct. at 2063
(quoting McMann v. Richardson, 397 U.S. 759, 771
n.14, 90 S.Ct. 1441, 1449 n.14, 25 L.Ed.2d 763 (1970))
29.15, under which Movant seeks post-conviction relief,
provides for such relief only if:
the conviction or sentence imposed violates the constitution
and laws of this state or the constitution of the United
States, including claims of ineffective assistance of trial
and appellate counsel, that the court imposing the sentence
was without jurisdiction to do so, or that the sentence
imposed was in excess of the maximum sentence authorized by
29.15(a). Because Movant's constitutional right to
effective assistance of counsel derives from his
Sixth Amendment right to the assistance of counsel,
Strickland, 466 U.S. at 684-86, 104 S.Ct. at 2063,
which Movant waived, his claim fails to allege a violation of
"the constitution and laws of this state or the
constitution of the United States, " as required by Rule
an accused manages his own defense, he relinquishes, as a
purely factual matter, many of the traditional benefits
associated with the right to counsel." Faretta,
422 U.S. at 835, 95 S.Ct. at 2541. "[W]hatever else may
or may not be open to him on appeal, a defendant who elects
to represent himself cannot thereafter complain that the
quality of his own defense amounted to a denial of
'effective assistance of counsel.'" Id.
at 834 n.46; see also State v. Nicolosi, 588 S.W.2d
152, 157 (Mo.App. 1979) (holding that a defendant who waived