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Tresler v. State

Court of Appeals of Missouri, Eastern District, Third Division

December 10, 2019

KRYSTAL N. TRESLER, Movant/Appellant,
v.
STATE OF MISSOURI, Respondent/Respondent.

          Appeal from the Circuit Court of Ralls County Honorable David C. Mobley.

          SHERRI B. SULLIVAN, J.

         Introduction

         Krystal N. Tresler (Appellant) appeals from the motion court's order denying her Amended Motion to Vacate, Set Aside or Correct Judgment and Sentence (amended motion) after an evidentiary hearing. Because the motion court's order denying Appellant's amended motion was not a final, appealable judgment, Appellant's appeal is dismissed.

         Factual and Procedural Background

         Appellant was convicted after a jury trial of first-degree robbery and second-degree murder stemming from Appellant's involvement in the robbery of a gas station. Appellant owned the getaway vehicle in which she waited as her accomplices entered the gas station to commit the robbery. In the course of the robbery, one of Appellant's accomplices shot and killed the gas station attendant. After the robbery, Appellant accompanied her accomplices to a nearby river where they disposed of the gun used to shoot the attendant, as well as clothing worn during the robbery.

         Although Appellant admitted to her role when interviewed by police about the robbery, the then-prosecuting attorney only filed charges against two of Appellant's accomplices. Appellant was subpoenaed to testify at the preliminary hearing of one of her accomplices. Before testifying, Appellant sought the advice of an attorney (pretrial counsel), who spoke to the prosecuting attorney on Appellant's behalf. The prosecuting attorney stated he was not considering charging Appellant at that time; however, pretrial counsel did not secure a promise of immunity for Appellant's testimony.

         After the then-prosecuting attorney left his position to become a judge, the matter of the robbery was transferred to the Missouri Attorney General's office, which opted to file charges against Appellant. Appellant was convicted following a jury trial and this Court affirmed her conviction on direct appeal. State v. Tresler, 534 S.W.3d 308 (Mo. App. E.D. 2017).

         After being delivered to prison, Appellant filed a pro se motion for post-conviction relief pursuant to Rule 29.15.[1] Appointed counsel from the Missouri Public Defender's office requested and received an extension to file the amended motion.

         Appellant's amended motion contained four claims. The first claim asserted Appellant's Fifth Amendment right against self-incrimination was violated when, during trial, the prosecution was permitted to read a transcript of Appellant's testimony from her accomplice's preliminary hearing. This claim argued her trial counsel (trial counsel) acted unreasonably by allowing the prosecution to read the transcript without objection, and but for trial counsel's failure to raise a meritorious objection there was a substantial likelihood the outcome of the trial would have been different.

         Appellant's second claim asserted pretrial counsel provided ineffective assistance by failing to secure an immunity agreement for Appellant in exchange for her testimony at her accomplice's preliminary hearing. The third claim asserted counsel representing Appellant on her direct appeal (appellate counsel) unreasonably failed to include a claim the trial court erred by allowing footage from the crime scene to be played at trial. Appellant's fourth claim asserted trial counsel was ineffective for failing to call an expert witness to explain the effects of the drugs Appellant was under the influence of at the time of the robbery.

         An evidentiary hearing was held at which Appellant's pretrial, trial, and appellate counsel testified, after which the motion court took the matter under submission. In the meantime, the prosecutor representing the State of Missouri (State) filed proposed findings of fact and conclusions of law denying Appellant's amended motion. Ultimately, the motion court adopted the State's proposed order and denied Appellant's second, third, and fourth claims. The motion court's order made no mention of Appellant's first claim alleging trial counsel was deficient for allowing Appellant's preliminary hearing testimony to be read at trial. This appeal follows.

         Authority to Hear Appeal

         Appellant raises several claims of error, but as a preliminary matter we address Appellant's first issue: whether we have authority to hear this appeal. Appellant argues that because the motion court failed to address and dispose of all claims ...


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