Court of Appeals of Missouri, Eastern District, Second Division
JEFFREY A. HILL, Appellant,
STATE OF MISSOURI, Respondent.
from the Circuit Court of Franklin County
D. Wood Honorable
M. HESS, JUDGE.
Hill ("Movant") appeals the judgment of circuit
court of Franklin County denying his Rule 29.15 motion for
post-conviction relief. Movant argues that his trial counsel
was ineffective for three reasons: 1) failing to object when
Victim testified Movant had attacked other family members in
the past; 2) failing to argue before the trial court that the
rule of lenity barred his conviction for second-degree
domestic assault; and 3) submitting the incorrect jury
instruction for third-degree domestic assault. Finding no
error, we affirm.
was charged with second-degree domestic assault, armed
criminal action, third-degree assault, and two counts of
third-degree domestic assault. In March 2012, a jury found
Movant guilty of second-degree domestic assault, armed
criminal action, and third-degree assault. Movant was found
not guilty on two counts of third-degree domestic assault.
evidence at trial demonstrated that Movant lived with his
sister ("Victim") and mother. In the evening of
August 13, 2008, Victim called a towing company to remove an
unlicensed truck from her mother's property. Victim did
not know who owned the vehicle, and it appeared inoperable.
When the tow truck driver arrived and began hooking the truck
up, Movant showed up in another vehicle and blocked the tow
truck. Movant then got out of his vehicle and threatened to
shoot the tow truck driver if he touched the truck. The
unlicensed truck apparently belonged to Movant or his son.
truck driver informed Movant he needed to talk to the
property owner and would not tow the truck while he did so.
Movant, still very agitated, went inside his home, where
Victim was. The tow truck driver then called the police.
Movant confronted Victim inside the house and screamed that
he would shoot the tow truck driver. He then hit Victim in
the head. Victim said she was going to call the police, to
which Movant responded he was going to "blow her [f-ing]
head off with his pistol." He then retrieved his gun and
came back and pointed the gun in Victim's face. Victim
fled and called the police. Movant was arrested shortly
thereafter, and during his arrest he was still visibly upset
and yelling. At trial the State demonstrated that
Movant's pistol was missing its cylinder pin, but it
could still be fired without one.
trial court sentenced Movant to nine years' imprisonment
for second-degree domestic assault, a concurrent nine-year
term for armed criminal action, and a concurrent thirty-day
term for third-degree assault. Movant filed an appeal
challenging the sufficiency of the evidence supporting his
second-degree domestic assault and armed criminal action
convictions. This Court affirmed his convictions in State
v. Hill, 408 S.W.3d 820 (Mo. App. E.D. 2013).
filed a timely pro se motion for post-conviction relief under
Rule 29.15. An amended motion was filed untimely by
appointed counsel. The motion court determined that the late
amended motion resulted from abandonment by counsel, and
therefore deemed the amended motion as timely filed. See
Sanders v. State, 807 S.W.2d 493, 495 (Mo. banc 1991)
("Should the failure to file a timely amended motion
result from inattention of counsel, the court shall permit
the filing."). Following an evidentiary hearing, the
motion court denied Movant's request for post-conviction
relief. This appeal follows. Testimony from the evidentiary
hearing and trial will be provided as necessary during our
review of a motion court's denial of post-conviction
relief is limited to determining whether the findings and
conclusions of the motion court are clearly erroneous.
Rotellini v. State, 77 S.W.3d 632, 634 (Mo. App.
E.D. 2002); Rule 29.15(k). Findings of fact and conclusions
of law are clearly erroneous only if, upon reviewing the
record, we are left with the definite and firm impression a
mistake has been made. Soto v. State, 226 S.W.3d
164, 166 (Mo. banc 2007).
counsel is presumed effective, and the movant has the burden
to prove otherwise." Jones v. State, 514 S.W.3d
72, 80 (Mo. App. E.D. 2017). When a movant seeks
post-conviction relief claiming ineffective assistance of
counsel, he must first establish that his counsel failed to
exercise the customary skill and diligence that a reasonably
competent attorney would display when rendering similar
services under similar circumstances, and second that he was
prejudiced thereby. Strickland v. Washington, 466
U.S. 668, 687-88 (1984); State v. Evans, 524 S.W.3d
530, 533 (Mo. App. E.D. 2017). To establish prejudice, a
movant must demonstrate "there is a reasonable
probability that, but for counsel's unprofessional
errors, the result of ...