Court of Appeals of Missouri, Western District, First Division
EDWARD J. FREDERICK, Appellant,
v.
STATE OF MISSOURI, Respondent.
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 ...