380 S.W.3d 617
Mo. Ct. App.2012Background
- Movant stalked Victim after relationship ended, making credible threats to kill Victim and family, and followed her at work, home, and with others watching; he communicated repeatedly by phone, email, and in-person encounters.
- Movant obtained an ex parte order of protection; he continued contacting Victim and was arrested for renewed stalking after a consent search revealed emails and cellphone data.
- Movant was charged with aggravated stalking, tried in March 2007; defense claimed no intent to threaten and that threats were exaggerated.
- Jury convicted Movant; court granted probation with strict restrictions at sentencing.
- Movant sought Rule 29.15 post-conviction relief; motion court held evidentiary hearing, vacated the conviction, and ordered a new trial on multiple IAC grounds; State appealed.
- appellate court ultimately reversed the motion court’s order, denied relief, and determined Points I–V (I–V) or related holdings warranted relief denial; the result was judgment denying relief
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PCR could review trial-counsel choice of representation | Movant argues PCR allowed improper review of counsel choice. | State contends this issue should have been raised on direct appeal, not PCR. | Point I granted; PCR court erred in considering this claim. |
| Whether trial/appellate counsel were ineffective re First Amendment challenges | Movant asserts counsel failed to press First Amendment defenses to threats. | State argues such challenges were strategic, not ineffective. | Points II, III, VI granted; IAC found on these grounds. |
| Whether trial IAC on self-incrimination was proven | Movant claims counsel failed to address self-incrimination strategy. | State asserts no deficiency given record and presumption of competence. | Point IV granted; IAC established on self-incrimination issues. |
| Whether appellate counsel was ineffective for not preserving/a complete record on appeal | Movant contends defective record hindered direct appeal, prejudicing him. | State asserts no prejudice without showing outcome likelihood. | Point V granted; appellate-record issue reversed. |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (establishes standard for ineffective assistance of counsel (deficient performance and prejudice))
- State v. Booker, 945 S.W.2d 457 (Mo.App.1997) (strong presumption of adequate assistance; deference to counsel decisions)
- State v. Holcomb, 956 S.W.2d 286 (Mo.App.1997) (deference to counsel; prejudice required for IAC claim)
- Tisius v. State, 183 S.W.3d 207 (Mo.banc 2006) (trial claims reviewable on direct appeal; PCR not substitute for direct appeal)
- Tolliver v. State, 839 S.W.2d 296 (Mo.banc 1992) (rare/exceptional circumstances for exercising PCR review of constitutional errors)
- Glaviano v. State, 298 S.W.3d 112 (Mo.App.2009) (claims during trial known to movant are not rare exceptions for PCR)
- Bernhardt v. State, 338 S.W.3d 830 (Mo.App.2011) (First Amendment challenges to stalking statutes not often cognizable in PCR absent preserved issues)
- Evans v. State, 85 S.W.3d 750 (Mo.App.2002) (prejudice required showing for reversal on PCR claims)
- McCrary v. State, 529 S.W.2d 467 (Mo.App.1975) (deliberate by-pass rule discussed in PCR context)
- Neal v. Neal, 281 S.W.3d 330 (Mo.App.2009) (noting risks of ordering proposed orders in PCR proceedings)
- Downen v. State, 3 S.W.3d 434 (Mo.App.1999) (trial court discretion in late endorsement of witnesses)