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Hill v. State

Court of Appeals of Missouri, Eastern District, Second Division

October 31, 2017

JEFFREY A. HILL, Appellant,

         Appeal from the Circuit Court of Franklin County

          Gael D. Wood Honorable

          PHILIP M. HESS, JUDGE.


         Jeffrey 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.

         Factual Background

         Movant 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.

         The 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.

         The tow 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.

         The 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).

         Movant filed a timely pro se motion for post-conviction relief under Rule 29.15.[1] 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 analysis.

         Relevant Law

         Appellate 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).

         "Trial 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 ...

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