Court of Appeals of Missouri, Eastern District, Fourth Division
FREDRICK A. BARNES, Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of the City of St. Louis, Missouri
1322-CC08864 Honorable Thomas J. Frawley.
M. Dowd Presiding Judge.
A. Barnes was convicted of first-degree murder and twelve
other counts arising out of a night of horrific events that
occurred on Brantner Place in the City of St. Louis on
September 28, 2007. Barnes forced a female victim to perform
oral sex, raped her in front of her two-year-old child,
killed her boyfriend, and set fire to the victims'
apartment. Because the State did not waive the death penalty
for the first-degree murder charge, Barnes was tried
separately on that count. A jury convicted Barnes of first-degree
murder, and Barnes was sentenced to life imprisonment without
the possibility of probation or parole. Barnes's murder
conviction was affirmed on appeal. See State v.
Barnes, 384 S.W.3d 298 (Mo.App.E.D. 2012).
Barnes's first-degree murder trial, Barnes waived his
right to a jury trial on the remaining twelve charges and
agreed to have those charges submitted to the court in a
bench trial based upon the trial transcript from the murder
trial. The waiver was made pursuant to an agreement with the
State that Barnes's sentences would not exceed
twenty-five years and any sentence would be ordered to run
consecutively to the life sentence he received for the
first-degree murder conviction.
trial court found Barnes guilty on all twelve charges,
including first-degree assault, forcible rape, forcible
sodomy, first-degree robbery, first-degree arson,
first-degree endangering the welfare of a child, third-degree
assault, and five counts of armed criminal action. Consistent
with the agreement described above, the court issued numerous
sentences for the twelve convictions but ordered those
sentences to run concurrently to each other such that the
maximum sentence Barnes received was twenty-five years which
the court ordered to run consecutively to his life sentence
for the first-degree murder charge. Barnes's convictions
were affirmed on direct appeal. See State v. Barnes,
395 S.W.3d 43 (Mo.App.E.D. 2013).
now appeals the denial without an evidentiary hearing of his
Rule 29.15 motion for post-conviction relief. In his
sole point on appeal, Barnes claims he received ineffective
assistance of counsel because his trial attorneys pressured
him and improperly induced him into waiving his right to a
jury trial on the twelve charges he agreed to have tried by
the court using the trial transcript from the first-degree
murder jury trial. Finding no clear error, we affirm.
review of the denial of a Rule 29.15 motion is limited to a
determination of whether the motion court's findings,
conclusions, and judgment are clearly erroneous. Anderson
v. State, 196 S.W.3d 28, 33 (Mo.banc 2006). Findings and
conclusions are clearly erroneous if after a review of the
entire record we are left with the definite and firm
impression that a mistake has been made. Id. We
presume that the motion court's findings are correct.
The motion court did not clearly err in denying without an
evidentiary hearing Barnes's claim of ineffective
assistance of trial counsel.
argues that he received ineffective assistance of counsel
because his trial attorneys pressured him and improperly
induced him into waiving his right to a jury trial and into
agreeing to have the remaining charges in the case submitted
to the trial court for a bench trial based on the trial
transcript from Barnes's first-degree murder trial.
Barnes contends that he was persuaded to waive his right to a
jury trial because the trial court agreed to sentence him to
no more than twenty-five years to run concurrently with his
life sentence, but argues that the court did not comply with
the agreement and instead sentenced him to twenty-five years
and ordered that sentence to run consecutively to, and not
concurrently with, his life sentence. The motion court denied
Barnes's amended motion without an evidentiary hearing.
Finding no clear error, we affirm.
evidentiary hearing is not required with every Rule 29.15
motion. See Rule 29.15(h). "To be entitled to an
evidentiary hearing, 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) (citing
State v. Brooks, 960 S.W.2d 479, 497 (Mo.banc
prove ineffective assistance of trial counsel, the movant
must satisfy the following two-prong test from Strickland
v. Washington, 466 U.S. 668, 687 (1984): 1) that
counsel's performance did not conform to the degree of
skill and diligence of a reasonably competent attorney; and
2) that as a result thereof, the movant was prejudiced.
Zink v. State, 278 S.W.3d 170, 175 (Mo.banc 2009).
The movant must overcome a strong presumption that
counsel's performance was reasonable and effective to
meet the first prong. Id. at 176. To satisfy the
second prong, the movant must show that there was a
reasonable probability that, but for counsel's alleged
errors, the outcome would have been different. Id.
If either the performance or the prejudice prong is not met,
then we need not consider the other and the claim of
ineffective assistance must fail. State v. Simmons,
955 S.W.2d 729, 746 (Mo.banc 1997).
we find that Barnes has failed to meet both prongs of the
Strickland test. As to the performance prong, the
record refutes that Barnes was improperly pressured and
induced into waiving his right to a jury trial. Barnes filed
a written waiver of his right to a jury trial signed by him,
his attorney, and the attorney for the State in which he
specifically stated that it was his desire, after consulting
with his attorneys, to have the remaining untried counts
tried to the court without a jury using the trial transcript
from the first-degree murder trial. Barnes acknowledged that
he had a right to a jury trial unless he waived that right,
and stated that it was his understanding that in exchange for
the waiver, the State and the court would agree, that ...