Court of Appeals of Missouri, Western District, Fifth Division
EDDIE E. ROSS, Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of Jackson County The Honorable
Kathleen A. Forsyth, Judge
Gary D. Witt, P.J., and Alok Ahuja and Edward R. Ardini, Jr.,
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.
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
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
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."
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.
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
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.
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.
circuit court's judgment only addresses the claim raised
in Ross' amended motion; the court did not address the
additional claim raised in ...