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Porter v. State

Court of Appeals of Missouri, Eastern District, Third Division

March 26, 2019

CARLTON L. PORTER, Movant/Appellant,
v.
STATE OF MISSOURI, Respondent/Respondent.

          Appeal from the Circuit Court of the City of St. Louis Honorable Christopher E. McGraugh

          SHERRI B. SULLIVAN, P.J.

         Introduction

         Carlton Porter (Appellant) appeals from the motion court's denial of his Rule 29.15[1]motion for post-conviction relief after an evidentiary hearing. Porter's motion claims his trial counsel (trial counsel) was ineffective for failing to investigate and call certain witnesses in his defense at trial. We affirm.

         Facts and Background

         Appellant was convicted after a jury trial as a persistent felony offender and persistent drug offender of trafficking in the second degree, possession of phencyclidine (PCP), and possession of drug paraphernalia. In the light most favorable to the verdict, the facts are as follows:

In February, 2012, Officer Mark Pasionek was assigned to patrol the 5600 and 5700 blocks of Labadie in the City of St. Louis, an area known for drug sales. He and Officer Jared Neff conducted surveillance from a vacant residence.

         During their surveillance, the officers observed Appellant conduct several suspicious transactions with various individuals. Officer Pasionek observed a blue vehicle pull up to Appellant and saw Appellant speak to someone within. Appellant then went to the corner of 5700 Labadie, kneeled down, unscrewed a jar, and dipped a cigarette into it. Appellant removed the cigarette, sucked on one end, and took it back to the vehicle, handing it to an occupant.

         Other officers followed the blue vehicle after it pulled away, and conducted a traffic stop. During the stop, one officer smelled a strong odor of PCP. Searching the vehicle's driver, they found a dark brown More brand cigarette which had been dipped in PCP. That driver was arrested.

         Officers Pasionek and Neff also observed a black vehicle pull up, and watched its occupant engage in a similar transaction with Appellant. Appellant spoke with the occupant, went to the corner where the jar was hidden, dipped a cigarette into the jar, and returned to exchange it with the occupant. This second vehicle was also stopped, and officers found a cigarette dipped in PCP in the ashtray and arrested the driver.

         Officers observed several more similar transactions as they watched Appellant. After some time they called in other police officers for assistance, and Appellant was arrested. Officer Andrew Kleffner searched the area where they had seen Appellant access the jar and cigarettes. Officer Kleffner found the jar and More brand cigarettes in a hole. The jar contained fluid, which a laboratory test later revealed to be PCP.

         A jury trial was held, and Appellant was found guilty of possession of a controlled substance with intent to distribute, trafficking in the second degree, and possession of drug paraphernalia with intent to use. Appellant was sentenced to concurrent sentences of twelve years for trafficking and possession of the PCP, and one year concurrently for the possession of paraphernalia.

         Appellant directly appealed his conviction and sentence, which was affirmed by this Court in State v. Porter, 464 S.W.3d 250 (Mo. App. E.D. 2015).

         Appellant timely filed a pro se motion for post-conviction relief under Rule 29.15. Counsel was appointed for Appellant, who, after requesting and receiving a 30-day ...


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