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Adams v. State

Court of Appeals of Missouri, Eastern District, Fourth Division

February 7, 2017

ANDRE ADAMS, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of St. Louis County 1222-CC10823 Honorable Edward W. Sweeney

          Gary M. Gaertner, Jr., Judge

         Introduction

         Andre Adams (Movant) appeals the judgment of the motion court denying his motion for post-conviction relief under Rule 29.15[1] without an evidentiary hearing. He argues both his trial counsel and his appellate counsel were ineffective for failing to contest two of his misdemeanor convictions, and that his trial counsel was ineffective for failing to object to comments the prosecutor made during direct examination of a witness. We affirm.

         Background

         Movant was convicted by a jury of four counts of statutory sodomy in the first degree involving a child less than 12 years of age and two counts of furnishing pornographic material to a minor. The trial court sentenced him as a prior offender to concurrent terms of 30 years in prison for each count of statutory sodomy, and concurrent terms of 1 year for the counts of furnishing pornographic material to a minor, for a total sentence of 30 years. This Court affirmed his convictions and sentences on appeal. State v. Adams, 377 S.W.3d 614 (Mo. App, E.D. 2012).

         Movant timely filed a pro se motion seeking to vacate his convictions and sentences under Rule 29.15. Later, Movant's appointed counsel requested a 30-day extension of time in which to file an amended motion, and filed such motion on October 28, 2013, the date it would have been due with a 30-day extension. The trial court denied Movant's amended motion without an evidentiary hearing. This appeal follows.

         Standard of Review

         Our review of the motion court's denial of a motion for post-conviction relief is "limited to a determination of whether the findings of fact and conclusions of law are clearly erroneous." Hickey v. State, 328 S.W.3d 225, 227 (Mo. App. E.D. 2010) (citing Rule 29.15(k)). Findings and conclusions are clearly erroneous "only if, after a full review of the record, this Court is left with a definite and firm impression that a mistake has been made." Id. To be entitled to an evidentiary hearing, Movant must have alleged facts, not conclusions, that would entitle him to relief and that are not refuted by the record. Id., at 227-28. The facts alleged must also establish Movant was prejudiced, meaning a reasonable probability exists that but for counsel's errors, the result of the proceeding would have been different. Id.

         Discussion

         Movant raises three points on appeal. He argues in Points I and II that his trial counsel and his appellate counsel, respectively, were ineffective for failing to contest the verdicts regarding furnishing pornography to a minor due to the fact that the jury did not view the alleged pornography in evidence. Movant argues in Point III that his trial counsel was ineffective for failing to object to the prosecutor's remarks during the State's direct examination of the victim. We discuss each in turn.[2]

         Points I and II

         In Point I, Movant argues that his trial counsel was ineffective for failing to object or move for a new trial based on potential jury misconduct when the jury did not view the alleged pornographic video in evidence yet convicted Movant of two counts of furnishing pornography to a minor. In Point II, Movant argues that his appellate counsel was ineffective for failing to raise this issue on appeal. Because these are not cognizable claims in a motion under Rule 29.15, we must deny both points.

         Rule 29.15(a) states, "A person convicted of a felony after trial. . . may seek relief in the sentencing court pursuant to the provisions of this Rule 29.15." By its own terms, relief under Rule 29.15 exists only for felony convictions and excludes relief from misdemeanor convictions. Newton v. State. 359 S.W.3d 54, 56 (Mo. App. W.D. 2011) (citing Gehrke v. State. 280 S.W.3d 54, 56 (Mo. banc 2009); Johnson v. State. 128 S.W.3d 624, 625 n.l (Mo. App. W.D. 2004); Smith v. State, 60 S.W.3d 31, 34 (Mo. App. ...


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