Mathew Bode appeals from the denial of his Rule 29.15 motion for post-conviction relief by the Circuit Court of Platte County. For the foregoing reasons, the motion court’s decision is reversed in part.
Appellant was tried by jury and convicted of one count of robbery in the first degree, § 569.020;
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one count of armed criminal action, § 571.015; and one count of possession of a controlled substance (cocaine base), § 195.202. Appellant was subsequently sentenced as a prior and persistent offender to consecutive terms of twenty years imprisonment on the robbery count, ten years on the armed criminal action count, and seven years on the possession count. Appellant’s convictions and sentences were affirmed by this Court on direct appeal.
State v. Bode,
Appellant filed a timely pro se motion for post-conviction relief under Rule 29.15. An amended motion was subsequently filed by appointed counsel. Following an evi-dentiary hearing, the motion court denied Appellant’s motion. Appellant brings three points on appeal.
“Our review of the motion court’s denial of a Rule 29.15 motion is limited to determining whether the findings and conclusions of the motion court are clearly erroneous.”
Stiers v. State,
“To prevail on an ineffective assistance of counsel claim, [Appellant] must show that (1) trial counsel’s performance was deficient in that he failed to exercise the customary skill and diligence that a reasonably competent attorney would perform under similar circumstances and (2) the deficient performance prejudiced [Appellant].”
State v. Rich,
In his first point, Appellant claims that the motion court clearly erred in concluding that counsel was not ineffective for refusing to allow Appellant to testify in his own defense. Appellant argues that the record demonstrates that he did not knowingly waive his right to testify and that counsel refused to allow him to testify. He further contends that prejudice must be presumed as resulting from counsel’s failure to allow him to testify.
In making this argument, Appellant views the evidence presented at the evidentiary hearing and inferences drawn therefrom in the light most favorable to himself. While Appellant testified that counsel failed to fully explain his right to testify and that counsel rested his case despite Appellant’s requests that he be allowed to testify, the trial court was not required to accept any of that testimony as credible.
Slater v. State,
Moreover, Appellant wholly failed to prove that he sustained any prejudice as a result of counsel not calling him to testify in his own defense. Contrary to Appellant’s contention on appeal, to be entitled to any relief, he was required to prove that he suffered prejudice as a result of counsel’s failure to present Appellant’s testimony at trial.
See Williams v. State,
In his second point, Appellant claims that the motion court clearly erred in finding that counsel was not ineffective for failing to obtain a mental evaluation of Appellant. He further claims the motion hearing record established by a prepon
“Section 552.020.1 states that ‘[n]o person who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures.’ ”
Zink v. State,
When considering whether trial counsel was ineffective for failing to investigate whether the defendant is incompetent to stand trial, “this Court must look to the reasonableness of counsel’s conduct from counsel’s perspective at the time and eliminate hindsight from consideration.”
Cook v. State,
Trial counsel testified that, while Appellant appeared to have some mental issues, he did not appear to be incompetent to stand trial. Counsel testified that Appellant had been able to discuss the case with him, including potential witnesses and issues that might arise.
The motion court found counsel’s testimony to be credible and did not believe Appellant’s testimony about his condition prior to and during trial. The court also noted physician’s notes from Appellant’s medical treatment while awaiting trial in the Platte County Jail that indicated that Appellant, while depressed and anxious about his trial, was alert and oriented at all times, was not overtly psychotic, and was cognitively intact. The court also relied upon its own observations of Appellant during the course of trial. Based upon the foregoing evidence, the motion court did not clearly err in determining that trial counsel was not ineffective for failing to obtain a mental evaluation of Appellant’s competence to stand trial.
Appellant also failed to prove prejudice, in that he has not offered any credible evidence establishing that he would, indeed, have been found to be incompetent to stand trial.
Thomas v. State,
In his final point, Appellant claims that the motion court clearly erred and violated his right to due process when it failed to include findings of fact and conclusions of law addressing the claims from his pro se motion. He contends that the lack of such findings precludes meaningful appellate review.
In his pro se motion, Appellant raised four additional claims that were not addressed in his amended motion but were adopted by reference in that motion. Appellant claims (1) that appellate counsel was ineffective for failing to raise a claim that the trial court erred in failing to advise Appellant of his right to testify or to make a finding on the record that Appellant knowingly, intelligently, and voluntarily had waived that right, (2) that trial counsel was ineffective for failing to file and pursue a motion to suppress the store clerk’s identification of Appellant as the robber, (3) that trial counsel was ineffective for failing to file a motion to suppress the hooded sweatshirt identified by the clerk and failing to object to its admission at trial, and (4) that trial counsel was ineffective for failing to obtain an interpreter or auxiliary aids for his mental disability under the Americans with Disabilities Act.
“Under Rule 29.15, a motion court is required to issue findings of fact and conclusions of law on each issue presented .... ”
Taylor v. State,
“A motion court’s failure to issue findings of fact and conclusions of law as required by Rule 29.15Q) is error and generally necessitates that the case be remanded with a directive to make the required findings.”
Weekley v. State,
Appellant failed to present any evidence supporting his first, third, and fourth pro se claims. As such, those claims are deemed to have been abandoned, and the motion court was not required to issue any findings related thereto.
The only
pro se
claim on which Appellant presented any evidence was his claim that counsel was ineffective for failing to file and pursue a motion to suppress the store clerk’s identification of him. During the evidentiary hearing, Appellant asked counsel why he didn’t attempt to have the court suppress or exclude from evidence the store clerk’s identification of him as the robber from a photographic lineup. Counsel responded that he made no attempt to do so because he did not believe that the photographic lineup was suggestive or otherwise objectionable. However, the trial court was not required to accept counsel’s testimony as credible or
“Meaningful appellate review is premised upon sufficiently specific findings of fact and conclusions of law which are responsive to the movant’s claim.”
Gaddis v. State,
Accordingly, the case is reversed and remanded with directions that the motion court enter findings of fact and conclusions of law addressing Appellant’s pro se claim that counsel was ineffective for failing to file and pursue a motion to suppress the store clerk’s identification of him. In all other respects, the judgment is affirmed.
All concur.
Notes
. All statutory references are to RSMo 2000 unless otherwise noted.
. "The absolute authority to make certain fundamental decisions in criminal cases, including whether to testify, is a personal right of the defendant that cannot be made by counsel.”
Slater v. State,