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Emory v. State

Court of Appeals of Missouri, Eastern District, Second Division

October 31, 2017

MICHAEL EMORY, Appellant,
v.
STATE OF MISSOURI, Respondent.

         Appeal from the Circuit Court of Warren County

          Wesley Clay Dalton Honorable

          ROY L. RICHTER, JUDGE

         Michael Emory ("Movant") appeals from the motion court's judgment denying his Rule 29.15 motion for post-conviction relief. Movant was convicted, following a jury trial, of the class C felony of second-degree domestic assault, in violation of Section 565.073 (RSMo. 2000). Movant was sentenced to seven years' imprisonment. This Court affirmed his conviction and sentence in State v. Emory, 430 S.W.3d 914 (Mo. App. E.D. 2014). We dismiss the appeal for lack of final judgment.

         I. Background

         Movant was convicted of domestic assault in the second degree after a jury trial, and the court sentenced him to seven years' imprisonment. Movant's conviction was affirmed on appeal, and he timely filed a pro se motion pursuant to Supreme Court Rule 29.15. Therein, Movant asserted in section C.2.D that Movant's trial counsel ("Trial Counsel") was ineffective in failing to make an objection during closing argument and in failing to introduce letters written by the victim into evidence. Counsel was appointed and a statement in lieu of an amended motion was filed stating no potentially meritorious claims known to counsel or facts in support of Movant's argument were omitted from the pro se motion.

         Following an evidentiary hearing, the motion court entered a judgment denying the motion for post-conviction relief. In addressing section C.2.D, the motion court did not make any mention of Movant's second claim of ineffective assistance of counsel regarding the failure to introduce evidence of the victim's letters. The motion court's summary of Movant's claim merely noted one of Movant's contentions for ineffective assistance of counsel: "In paragraph C.2.D., [Movant] claims Trial Counsel was ineffective for failing to object during closing argument when the prosecutor argued that the victim was scared for her life." The motion court's corresponding analysis in rejecting section C.2.D exclusively discussed the claim of ineffective assistance of counsel for failure to object during closing argument and did not contain any acknowledgement of the second claim. After denial of his motion for post-conviction relief, Movant filed this appeal.

         II. Discussion

         Movant alleges two points on appeal. First, he argues the motion court erred in denying his motion for post-conviction relief because the court failed to issue findings of fact and conclusions of law addressing Movant's claim that Trial Counsel was ineffective for failing to introduce into evidence Exhibit 1 - letters to Movant written by the victim. Movant contends that this Court should dismiss the appeal for lack of final judgment because the motion court failed to address every claim in his motion for post-conviction relief.

         Second, Movant claims that the motion court erred in denying his motion for post-conviction relief because Trial Counsel's failure to introduce Exhibit 1 denied him of his rights to effective assistance of counsel and due process of the law as guaranteed by the Sixth and Fourteenth Amendment to the United States Constitution, in that the letters would have shown that the victim was not afraid of Movant and that the victim's change in story was not a recent fabrication for trial.

         A. Standard of Review

         We review the denial of a Rule 29.15 motion for post-conviction relief to determine whether the motion court's findings and conclusions are clearly erroneous. Forrest v. State, 290 S.W.3d 704, 708 (Mo. banc 2009). Findings and conclusions are clearly erroneous if, upon review of the record, we are left with the definite and firm impression that a mistake has been made. Gehrke v. State, 280 S.W.3d 54, 56-57 (Mo. banc 2009).

         B. Analysis

         Movant claims the motion court erred in denying his motion for post-conviction relief because the motion court's findings of fact and conclusions of law failed to address both claims for ineffective assistance of counsel asserted in section C.2.D of his motion. ...


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