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Altic v. State

Court of Appeals of Missouri, Southern District, Second Division

May 1, 2019

ANDY JOE ALTIC, JR., Movant-Appellant,
v.
STATE OF MISSOURI, Respondent-Respondent.

          Appeal From The Circuit Court Of Polk County Honorable Judge Michael O. Hendrickson

          MARY W. SHEFFIELD, J.

         Andy Joe Altic, Jr. ("Movant") appeals the motion court's denial of his Rule 29.15[1] motion for post-conviction relief after an evidentiary hearing. Movant claims that the attorney who represented him at trial, Stephanie Bullard ("trial counsel"), was ineffective. We find no clear error in the motion court's denial of Movant's Rule 29.15 motion, and affirm.

         Background

         On May 9, 2013, around 5:30 p.m., Victim and her husband drove her black 1999 Honda Accord to a store in Polk County, where they parked and left the keys in the car. When Victim's husband returned to the parking lot seven or eight minutes later, Victim's car was missing. Victim's car was found later that evening in the parking lot of a church located in Greene County.

         Officer Margaret Morton ("Officer Morton") testified that she viewed the store's video that showed Victim's car as it entered the parking lot, and also showed Movant entering the store shortly after Victim. Officer Morton stated that she was dispatched to the store and arrived at 5:46 p.m.-about 15 minutes after Movant was shown entering the store according to the video's time-stamp. Movant was no longer at the store when she arrived.

         Brennen Bagwell ("Pastor"), a pastor at a Greene County church, testified that he saw a man with a parked car in his church parking lot on May 9, 2013, sometime between 6:30 and 7:00 p.m. The man was standing behind the vehicle with the trunk open. He identified himself as "A.J." and explained to Pastor that his car had overheated. The car was subsequently identified as Victim's car. Pastor later identified Movant as the man in the parking lot in both a photographic lineup and in court.

         Movant was charged as a prior and persistent offender with one count of the class C felony of stealing under § 570.030.[2] At the conclusion of Movant's bench trial, the court found Movant guilty.

         Movant filed a post-conviction motion, which was amended, alleging ineffective assistance of counsel ("Amended Motion").[3] In his Amended Motion, Movant alleged that trial counsel was ineffective for "erroneously convincing him he could not be convicted at trial on the charge of stealing a motor vehicle because there was no eyewitness to the crime in Polk County." He claimed this advice prejudiced him because he rejected a settlement offer based on trial counsel's advice, and is now serving a longer sentence than the one contained in the plea offer.

         The motion court held an evidentiary hearing regarding the claims in the Amended Motion. Both Movant and trial counsel testified at the evidentiary hearing. The motion court entered findings of fact and conclusions of law denying Movant's post-conviction motion on April 2, 2018. This appeal followed.

         Standard of Review

         When a movant in a post-conviction case is granted an evidentiary hearing, the movant has the burden of proving his claims by a preponderance of the evidence. Rule 29.15(i). This Court's review of the denial of a post-conviction motion "shall be limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous." Rule 29.15(k); see Wrice v. State, 485 S.W.3d 382, 384 (Mo. App. E.D. 2016). "The motion court's judgment is clearly erroneous only if this Court is left with a definite and firm impression that a mistake has been made." Mallow v. State, 439 S.W.3d 764, 768 (Mo. banc 2014). The findings of the motion court are presumed correct. Id. This Court gives deference to the motion court's credibility determinations. Arata v. State, 509 S.W.3d 849, 852 (Mo. App. S.D. 2017).

         Discussion

         In his sole point on appeal, Movant claims trial counsel was ineffective "by advising him to reject the State's plea offer because there was not legally sufficient evidence to convict him of the offense for which he was charged, as she neglected substantial circumstantial evidence that proved all the elements of the offense[.]" Movant argued he was prejudiced because he rejected the State's plea offer based on trial counsel's erroneous advice, and is now serving a longer sentence instead of a shorter sentence as contained in the earlier plea offer. This claim is without merit because ...


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