Rush v. State
366 S.W.3d 663
Mo. Ct. App.2012Background
- Movant Andrew Rush pled guilty to possession of a controlled substance (class C felony) in 2004 with a three-year probation; the court granted a suspended imposition of sentence.
- Probation was continued/modified multiple times through 2010, including a 30-day residential drug program and extensions, with ongoing probation violations noted.
- In 2010, Movant pled guilty to two misdemeanor stealing counts, admitted probation violation, and the court revoked probation, proceeding to sentence on the possession charge.
- At sentencing, neighborhood representative urged Movant stay out of Lafayette Square; the State urged five years; Movant’s counsel urged two years, citing lack of prior felonies and probation on-cum-costs arguments; the court imposed five years.
- Movant filed a Rule 24.035 motion alleging ineffective assistance of sentencing counsel for seeking straight revocation and a two-year sentence; motion court denied without an evidentiary hearing.
- On appeal, the Eastern District held the claim cognizable under Rule 24.035 and analyzed Strickland prejudice, ultimately affirming denial of postconviction relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Cognizability under Rule 24.035 | Rush's claim is ineffective-assistance of sentencing counsel, cognizable. | Rule 24.035 applies to plea counsel, not sentencing counsel; claim not cognizable. | Claim cognizable under Rule 24.035. |
| Prejudice under Strickland standard | But-for counsel, Rush would have received a lesser sentence. | Record shows no reasonable probability of a lesser sentence with better counsel. | Prejudice not shown; no reasonable probability of a lesser sentence. |
Key Cases Cited
- Wood v. State, 853 S.W.2d 369 (Mo.App. E.D.1993) (Rule 24.035 claims not limited to plea counsel; sentencing claims cognizable after probation revocation)
- Griffin v. State, 937 S.W.2d 400 (Mo.App. E.D.1997) (sentencing claims after probation revocation can be cognizable under Rule 24.035)
- Worthington v. State, 166 S.W.3d 566 (Mo. banc 2005) (plea-related ineffective assistance standard applies to voluntariness/knowledge of plea)
- Hale v. State, 767 S.W.2d 612 (Mo. App. S.D.1989) (plea-based ineffectiveness reviewed for manifest injustice when not set aside for plea voluntariness)
- Lafler v. Cooper, 132 S. Ct. 1376 (2012) (ineffective assistance at sentencing can have Sixth Amendment prejudice)
- Deck v. State, 68 S.W.3d 418 (Mo. banc 2002) (prejudice standard for ineffective-assistance claims in criminal sentencing)
- Eichelberger v. State, 134 S.W.3d 790 (Mo.App. W.D.2004) (reasonable-probability standard for prejudice in post-conviction claims)
- Scott v. State, 183 S.W.3d 244 (Mo.App. E.D.2005) (cite-prejudice framework for ineffective-assistance postconviction claims)
- Weeks v. State, 140 S.W.3d 39 (Mo.banc 2004) (standard of review for Rule 24.035 is clear error after full record)
- Glover v. United States, 531 U.S. 198 (2001) (Sixth Amendment significance of sentencing decisions)