Oplinger v. State, 2011 Mo. App. LEXIS 1335

Oplinger was convicted of first-degree robbery and armed criminal action, sentenced to concurrent 30-year terms, and this Court previously affirmed the conviction.
Evidence showed Oplinger, with a gun, demanded cash from a Casey's store cashier; money was placed in a paper bag and the gun was hidden under a newspaper.
Oplinger testified the idea to go to Casey's came from Castlebury, and he claimed no gun was used and the act was prearranged taking rather than robbery.
Oplinger filed a pro se Rule 29.15 motion, later amended by counsel alleging ineffective assistance for failing to request a lesser-included instruction for stealing.
Motion court held evidentiary hearing; trial counsel testified the defense strategy was all-or-nothing, aiming for acquittal or a verdict on robbery, and prepared a lesser-included instruction but chose not to submit it.
Motion court denied relief, concluding no reasonable probability of a different outcome if a lesser instruction had been submitted.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial counsel was ineffective for not requesting a stealing instruction	Oplinger asserts counsel failed to discuss or submit stealing, prejudicing him.	Back contends all-or-nothing strategy was reasonable given testimony and theory of defense.	Not ineffective; strategy reasonable; no prejudice shown.
Whether the evidence required submission of a lesser-included offense	Evidence supported stealing as a lesser-included offense.	Even if supported, strategy could still be reasonable; evidence does not compel instruction.	Assumed, but not clearly erroneous to reject; strategy still reasonable.

Forrest v. State, 290 S.W.3d 704 (Mo. banc 2009) (post-conviction standard; credibility of witnesses at hearing)
Hurst v. State, 301 S.W.3d 112 (Mo. App. E.D. 2010) (standard for post-conviction credibility and review)
Strickland v. Washington, 466 U.S. 668 (1984) (framework for ineffective assistance of counsel)
State v. Storey, 901 S.W.2d 886 (Mo. banc 1995) (ineffective assistance standards; prejudice element)
Love v. State, 670 S.W.2d 499 (Mo. Banc 1984) (trial strategy not per se ineffective assistance)
Neal v. State, 99 S.W.3d 571 (Mo. App. S.D. 2003) (jury might convict lesser offense; strategic choice)
Martin v. State, 712 S.W.2d 14 (Mo. App. E.D. 1986) (all-or-nothing strategy respected if reasonable)
Jackson v. State, 205 S.W.3d 282 (Mo. App. E.D. 2006) (requirements to establish ineffective assistance)
Olson v. State, 636 S.W.2d 318 (Mo. banc 1982) (reasonableness of trial strategy; risk of lesser offense)
Santillan v. State, 948 S.W.2d 574 (Mo. Banc 1997) (reaffirmed approach to lesser-included offenses)