Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Ross v. State

Court of Appeals of Missouri, Western District, Fifth Division

August 22, 2017

EDDIE E. ROSS, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of Jackson County The Honorable Kathleen A. Forsyth, Judge

          Before Gary D. Witt, P.J., and Alok Ahuja and Edward R. Ardini, Jr., JJ.

          Alok Ahuja, Judge.

         Appellant Eddie Ross was convicted of first-degree robbery following a jury trial. After we affirmed his conviction on direct appeal, Ross filed a pro se motion for postconviction relief under Supreme Court Rule 29.15. His appointed counsel later filed an amended motion, which Ross and the State agree was untimely. Despite its untimeliness, the circuit court addressed Ross' amended motion on the merits, and denied postconviction relief. The circuit court made no determination as to whether Ross had been abandoned by appointed counsel's untimely filing of the amended motion. Pursuant to Moore v. State, 458 S.W.3d 822 (Mo. banc 2015), we reverse the judgment and remand the case to the circuit court to address the abandonment issue.

         Factual Background

         Following a jury trial, Ross was found guilty of first-degree robbery, and was sentenced to fifteen years' imprisonment. Ross appealed. On November 5, 2013, this Court issued a per curiam order affirming Ross' conviction and sentence. State v. Ross, 413 S.W.3d 347 (Mo. App. W.D. 2013) (mem.). We issued our mandate on November 27, 2013.

         On November 20, 2013 (after we issued our order, but before issuance of our mandate), Ross filed a pro se motion for postconviction relief under Rule 29.15. Ross' motion asserted two claims of ineffective assistance by his appellate counsel. Ross first alleged that his appellate counsel was ineffective for failing to challenge the trial court's admission of evidence of a high-speed car chase which followed the robbery. Ross' pro se motion also alleged that his appellate counsel was ineffective for failing to effectively challenge the admission of a detective's hearsay testimony concerning statements made by an anonymous caller, and by an alleged accomplice of Ross'.

         On November 25, 2013, the circuit court appointed the Public Defender to represent Ross, and gave appointed counsel ninety days within which to file an amended motion. The court's order explained that "[t]he ninety (90) day period in which to file an amended motion already contemplates the extension contained in the rule, and as such there is no need to request an extension."

         Appointed counsel filed an entry of appearance on February 19, 2014, along with a motion seeking an additional thirty-day extension of time to file an amended motion. The circuit court granted the additional extension on February 21, 2014, and counsel filed the amended motion on March 21, 2014.

         Counsel's amended motion included only one claim: that appellate counsel was ineffective for failing to challenge the admission of police officer testimony concerning the high-speed car chase. This claim was similar (although not identical) to the first claim asserted in Ross' pro se motion.

         The circuit court held an evidentiary hearing on Ross' amended motion, at which direct-appeal counsel was the sole witness. Appellate counsel testified that she decided not to challenge the admission of evidence concerning the car chase because she believed case law established "that any flight from the police can be introduced as consciousness of guilt" for the underlying crime.

         The motion court entered its judgment denying Ross' amended motion on October 29, 2015. The court found that appellate counsel made "a competent and strategic decision" not to challenge admission of the car-chase evidence, based on her conclusion that the evidence was admissible to prove Ross' "consciousness of guilt for the underlying crime of robbery." The judgment noted that, instead of challenging the car-chase evidence, "[c]ounsel used her experience to raise two issues on direct appeal that she believed would be meritorious based on the relevant case law." The court also found that Ross had failed to demonstrate that he was prejudiced by counsel's failure to challenge the car-chase evidence, because the admission of that evidence did not have a determinative effect on the jury's finding of guilt, given the other evidence tying Ross to the offense.

         The circuit court's judgment only addresses the claim raised in Ross' amended motion; the court did not address the additional claim raised in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.