Frederick v. State

          Appeal from the Circuit Court of Pettis County, Missouri The Honorable Robert L. Koffman, Judge

          Before Cynthia L. Martin, Presiding Judge, Victor C. Howard, Judge and Alok Ahuja, Judge

          CYNTHIA L. MARTIN, JUDGE

         Edward J. Frederick ("Frederick") appeals the motion court's judgment denying his Rule 29.15^[1] motion for post-conviction relief after an evidentiary hearing. Frederick was found guilty of one count of first degree statutory sodomy and one count of victim tampering. Frederick contends that the motion court erred in denying his claim that trial counsel was ineffective for failing to file a motion to sever other counts of statutory sodomy, of which Frederick was acquitted. Finding no clear error, we affirm.

         Factual and Procedural Background

         Frederick was charged with four counts of statutory sodomy in the first degree and one count of victim tampering. Three of the statutory sodomy counts related to victim M.A.Y., while one of the statutory sodomy counts related to victim S.Y. The victim tampering count related to both M.A.Y. and S.Y.

         Frederick was tried by jury. Frederick was convicted of the count of statutory sodomy in the first degree related to S.Y., and of the count of victim tampering related to both M.A.Y. and S.Y. Frederick was acquitted of the three counts of statutory sodomy in the first degree related to M.A.Y. Frederick was sentenced to 20 years' imprisonment for statutory sodomy in the first degree and two years' imprisonment for victim tampering, to be served concurrently. Frederick's conviction was affirmed on direct appeal in a per curiam order. State v. Frederick, 495 S.W.3d 831 (Mo. App. W.D. 2016). Frederick timely filed a pro se Rule 29.15 motion. Appointed counsel filed an amended motion ("Motion"). The Motion claimed that Frederick received ineffective assistance of counsel because trial counsel failed to file a motion to sever the statutory sodomy charges related to M.A.Y. from the charge related to S.Y. The motion court denied the Motion after an evidentiary hearing ("Judgment").

         Frederick appeals.

         Standard of Review

         A motion court's ruling on a post-conviction motion is presumed correct. McLaughlin v. State, 378 S.W.3d 328, 336-37 (Mo. banc 2012). "A motion court's judgment will be overturned only when its findings of fact or conclusions of law are clearly erroneous." Id.; Rule 29.15(k). To be clearly erroneous, we must be left with a "definite and firm impression that a mistake has been made." McLaughlin, 378 S.W.3d at 336-37.

         Analysis

         Frederick raises one point on appeal. Frederick argues that the motion court clearly erred when it denied his claim that trial counsel provided ineffective assistance for failing to file a motion to sever the three statutory sodomy offenses related to M.A.Y. from the single statutory sodomy offense related to S.Y.

         To establish a claim of ineffective assistance of counsel, Frederick was required to show by preponderance of the evidence that (1) trial counsel failed to exercise the customary level of skill and diligence of a reasonably competent attorney and (2) that he was prejudiced by that failure. Strickland v. Washington, 466 U.S. 668, 687-88 (1984); Strong v. State, 263 S.W.3d 636, 642 (Mo. banc 2008). "Trial counsel is presumed to be effective, and [Frederick] bears a heavy burden to overcome this presumption." Fonville v. State, 563 S.W.3d 794, 800 (Mo. App. W.D. 2018). "To overcome this presumption, [Frederick] must point to specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance." Strong, 263 S.W.3d at 642 (internal quotes omitted). "Trial strategy decisions may only serve as a basis for ineffective counsel if they are unreasonable." Id. "The choice of one reasonable trial strategy over another is not ineffective assistance." Id. "[S]trategic choices made after a thorough investigation of the law and the facts relevant to plausible opinions are virtually unchallengeable." Id.

         Frederick asserts that trial counsel's strategy was "objectively unreasonable" and that had trial counsel filed a motion to sever it ...