Court of Appeals of Missouri, Southern District, First Division
FROM THE CIRCUIT COURT OF NEW MADRID COUNTY Honorable W.
Keith Currie, Judge
WILLIAM W. FRANCIS, JR., J.
Willie Proby ("Proby") appeals from a judgment of
the motion court denying his Rule 29.15 motion to set
aside his convictions of four counts of burglary, and four
counts of felony stealing (third offense). Because the motion
court's decision to deny relief was not clearly
erroneous, we affirm.
and Procedural Background
recite the evidence in accord with the motion court's
explicit and implicit determinations, including those
regarding credibility. Shockley v. State, No.
SC96633, 2019 WL 1614593, *3 (Mo. banc 2019). Other
information is set forth as necessary for clarity.
fall of 2009, Proby was caught stealing food from Walmart. He
was apprehended and placed in custody. At that time, Walmart
representatives gave Proby a "notice of trespass,"
indicating that Proby was "no longer permitted on any
Walmart property at any time in the future[.]" Proby
returned to this Walmart later in 2009, and was caught
stealing liquor. He was charged with two counts of
misdemeanor stealing, and pled guilty to both charges in
was thereafter caught stealing from the same Walmart on March
26 and 27, 2012, and on July 15 and 28, 2012.
was charged by amended information, in Case No. 12NM-CR01206
(July 15 and 28, 2012 offenses), with two counts of the class
B felony of burglary in the first degree (Counts I and
III); and two counts of the class D felony of "Stealing
Related Ofns - 3rd Ofns Stealing, Buying,
Receiving, Robbery" (Counts II and IV).
No. 12NM-CR01207 (March 26 and 27, 2012 offenses) Proby was
charged by third amended information with two counts of the
class C felony of burglary in the second degree (amended to
the class B felony of burglary in the first
degree) (Counts I and III); and two counts of the
class D felony of "Stealing Related Ofns -
3rd Ofns Stealing, Buying, Receiving,
Robbery"(Counts II and IV).
cases, Proby was charged as a prior and persistent offender
as he pled guilty to felony stealing on October 1, 1985, and
felony second-degree burglary and stealing on May 21, 1991.
cases were consolidated for purposes of trial, and a jury
trial commenced on May 2, 2013. The jury found Proby guilty
on all charges.
direct appeal, this Court affirmed Proby's convictions
and sentences. See State v. Proby, 437 S.W.3d 375
(Mo.App. S.D. 2014). This Court issued its mandate on August
October 20, 2014, Proby timely filed his pro se Rule
29.15 motion for post-conviction relief. Counsel was
appointed on October 22, 2014, and was granted a 30-day
extension to file an amended motion. Proby's amended
motion was timely filed on January 20, 2015. Therein, Proby
alleged that his appellate counsel was ineffective for
failing to assert that "the State failed to
adduce sufficient evidence to support a finding that [he] had
committed the crime of stealing, third offense[,
]" in that the State's evidence demonstrated that
Proby "was not represented by counsel for [his]
prior stealing charges, and thus [his] pleas for those
charges could not be counted as 'stealing-related
offenses.'" (Emphasis in
letter dated March 1, 2018, Proby lodged appellate
counsel's affidavit with the motion court and requested
that the motion court take the matter under submission if the
State had no evidence to present at a potential motion
hearing. In a hearing on May 2, 2018, Proby's
counsel orally "waive[d] evidentiary hearing and
submit[ted] evidence on the record."
August 30, 2018, the motion court issued its "Findings
of Fact and Conclusions of Law," rejecting Proby's
Rule 29.15 motion. The motion court found that appellate
counsel was not ineffective for failing to raise an
insufficiency-of-the-evidence claim (pursuant to the basis
alleged in Proby's amended motion) because the plain
meaning of section 570.040 authorized sentencing enhancement
(felony stealing) based on the record before the motion
court. This appeal followed.
point relied on, Proby argues that the motion court clearly
erred in rejecting his Rule 29.15 motion for post-conviction
relief, in that appellate counsel "fail[ed] to raise on
appeal that the State failed to adduce evidence supporting
the charges of felony stealing," and that there was
"a reasonable probability that [Proby] would have been
convicted of misdemeanor counts of stealing, rather than
felony counts of stealing."
This Court reviews the denial of post-conviction relief to
determine whether the motion court's findings of fact and
conclusions of law are clearly erroneous. Rule 29.15(k). A
judgment is clearly erroneous when, in light of the entire
record, the court is left with the definite and firm
impression that a mistake has been made. The motion
court's findings are presumed correct. This Court defers
to the motion court's superior opportunity to judge the
credibility of witnesses.
To be entitled to post-conviction relief for ineffective
assistance of counsel, a movant must show by a preponderance
of the evidence his or her trial counsel failed to meet the
Strickland test to prove his or her claims.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). Under Strickland,
Movant must demonstrate: (1) trial counsel failed to exercise
the level of skill and diligence reasonably competent trial
counsel would in a similar situation, and (2) he was
prejudiced by that failure. Id. at 687.
Movant must overcome the strong presumption trial
counsel's conduct was reasonable and effective. To
overcome this presumption, a movant must identify specific
acts or omissions of counsel that, in light of all the
circumstances, fell outside the wide range of professional
competent assistance. Trial strategy decisions may be a basis
for finding ineffective assistance of counsel only if that
decision was unreasonable. Strategic choices made after a