Ronnie G. Brooks appeals from the order of the circuit court denying his Rule 29.15 1 motion for postconviction relief, without an evidentiary hearing, seeking to vacate his conviction for second degree robbery. The appellant was convicted as a persistent offender, pursuant to § 558.016, 2 in the Circuit Court of Clay County after a jury trial, of one count of robbery in the second degree, § 569.030, for which he was sentenced to thirty years in the Missouri Department of Corrections.
In his sole point on appeal, the appellant claims that the motion court erred in denying his Rule 29.15 motion, without an evi-dentiary hearing, because he alleged facts, not conclusions, which were not refuted by the record and, if true, would establish that he received ineffective assistance of counsel. The State concedes that the motion court erred in fading to grant the appellant an evidentiary hearing.
We reverse and remand.
Facts
On March 3, 1998, the Subway restaurant at 504 Armour Road in North Kansas City, Clay County, Missouri, was robbed of $102.42. An employee, Joyce Jordan, was forced by an African American male to hand over the money. In addition to Jordan, there were three eyewitnesses to the robbery: Rowena Cerra and Cheryl Kidd, also restaurant employees; and Larry Tongate, a customer. Upon witnessing the robbery, Cerra ran out of the back of the restaurant to call the police from a neighboring business.
Several North Kansas City police officers responded to Cerra’s 911 call. One of the officers responding, Sergeant James Osburn, was on foot-patrol when he saw a black man running toward Fayette Street. The officer observed the man get into a maroon car and drive northbound. Sergeant Jim Bagley, who was also responding to the 911 call, saw Sergeant Osburn pursuing the suspect. When the suspect got into his car and drove away, Sergeant Bagley pursued him in his patrol car. While driving to the scene in response to the call, Officer Terry Bowen saw a black man, wearing black clothing and a black floppy hat, walk out of the restaurant, go to a red car, and drive away. He gave chase. Officer Hamm, who was also responding to the call, observed the suspect drive away, so he too gave chase. Also giving chase were Officer Carl Reineke and Kansas City Police Officer James Pearce.
The suspect’s car was eventually disabled by spike strips placed across the road causing his tires to blow out. The suspect stopped his car in an open lot, got out, and began running, but was trapped
An indictment was handed down by a Clay County grand jury against the appellant on April 22, 1998, charging him with one count of robbery in the first degree, § 569.020, and armed criminal action (ACA), § 571.015. An information in lieu of indictment was filed on September 11, 1998, charging the appellant as a prior offender and a persistent offender.
The case proceeded to a jury trial before the Honorable Michael J. Maloney, on November 16, 1998. Kidd testified at trial that she saw the barrel of a gun in the robber’s hand. She testified that the robber wore sunglasses, a burgundy cap and jacket, and held a bloody rag over his face. At trial, she positively identified the appellant as the robber. Cerra testified that the robber wore a black leather jacket, a black “squished-down English style hat,” and sunglasses. She also testified that he held a rag over his mouth. She heard Kidd say, “he’s got a gun”; however, she never saw the gun. Cerra identified the appellant at trial. She had previously identified him in a police lineup on the day of the robbery. Tongate testified that he could not positively identify the appellant as the robber. Jordan testified that the robber held a bloody rag over his face during the entire robbery, so she was unable to identify the appellant as the person who robbed the restaurant. Jordan further testified that she did not see the robber holding a gun.
The jury was instructed on first degree robbery, the lesser included offense of robbery in the second degree, and ACA. As to first degree robbery, the jury was instructed that it had to find, in order to convict, that the appellant: (1) took the money from Subway, (2) for the purpose of withholding it from Subway, (3) that in doing so, he threatened the immediate use of physical force on or against the Subway employees, and (4) that he was armed with a deadly weapon. Because the existence of a gun was in dispute, the instruction on second degree robbery was given as a lesser included offense. This instruction was identical to that given on first degree robbery, except that the jury was not required to find that the appellant was armed at the time with a deadly weapon.
The jury found the appellant not guilty of first degree robbery and ACA, but found him guilty of the lesser included offense of second degree robbery. The appellant filed a motion for acquittal notwithstanding the verdict or, in the alternative, for a new trial on December 11, 1998. The motion, which was heard on December 18, 1998, was overruled. The previous day, the trial court found that the appellant was a persistent offender, but was not a prior offender. On January 13,1999, the court formally sentenced the appellant as a persistent offender to a term of thirty years imprisonment.
The appellant appealed his conviction to this court in the case of
State v. Brooks,
WD 56773. This court issued its mandate affirming the appellant’s conviction on March 27, 2000.
State v. Brooks,
This appeal follows.
Standard of Review
Appellate review of a motion court’s denial of a Rule 29.15 motion for postconviction relief is limited to a determination of whether the court’s findings and conclusions issued in support thereof, as required by Rule 29.15(j), are clearly erroneous. Rule 29.15(k);
State v. Clay,
I.
In his sole point on appeal, the appellant claims that the motion court erred in denying his Rule 29.15 motion, in which he sought to vacate his conviction for second degree robbery, without an evidentiary hearing, because he alleged facts, not conclusions, which were not refuted by the record and, if true, would establish that he received ineffective assistance of counsel. Specifically, he claims that the facts alleged in his motion, if true, would establish that his trial counsel was ineffective in that he should have but failed to request an instruction on the lesser included offense of felony stealing, § 570.030. The State concedes that the appellant was entitled to an evidentiary hearing on his motion.
In order to prevail on a claim of ineffective assistance of counsel, as claimed by the appellant, a movant must satisfy the two-prong test set forth in
Strickland v. Washington,
“If the court determines that the motions, files, and records of the case conclusively show that the movant is not entitled to relief, a hearing will not be held.”
State v. Driver,
“Due process requires that a defendant may not be convicted of an offense which is not charged in the indictment or information.”
State v. Shipley,
1. A defendant may be convicted of an offense included in an offense charged in the indictment or information. An offense is so included when
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(2) It is specifically denominated by statute as a lesser degree of the offense charged; or
(3) It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein.
2. The court shall not be obligated to charge the jury with respect to an included offense unless there is a basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.
“A trial court is required to instruct on a lesser included offense if the evidence, in fact or by inference, provides a basis for both an acquittal of the greater offense and a conviction of the lesser offense, and if such instruction is requested by one of the parties or the court.”
State v. Hahn,
In the case at bar, the appellant was charged by information with first degree robbery, under § 569.020.1(2), which states:
A person commits the crime of robbery in the first degree when he forcibly steals property and in the course thereof he, or another participant in the crime ... [i]s armed with a deadly weapon[.]
Second degree robbery, under § 569.030, is a lesser included offense of first degree robbery.
State v. Branyon,
1. A person commits the crime of stealing if he or she appropriates property or services of another with the purpose to deprive him or her thereof, either without his or her consent or by means of deceit or coercion.
[[Image here]]
3. Stealing is a class C felony if:
[[Image here]]
(2) The actor physically takes the property appropriated from the person of the victim[.]
Felony stealing from a person is a lesser included offense of second degree robbery.
State v. Williams,
In order to convict the appellant of robbery, first or second, the State was required to show that he forcibly stole the money. § 569.020; § 569.030;
State v. Kelly,
The motion court, in denying the appellant’s motion without an evidentiary hearing, concluded that “[h]ad defense counsel offered a verdict directing instruction which submitted stealing from the person, it would have been refused,” such that counsel was not deficient for failing to request the giving of the instruction inasmuch as counsel will not be convicted of being ineffective for failing to engage in a futile act.
Vogel,
In denying the appellant’s motion on this basis, the motion court assumed that the proof element of the State’s case for second degree robbery that was being asserted by the appellant as the basis for his acquittal of that offense was fear. However, that was not what was alleged in the appellant’s motion. Rather, as the basis for his allegation that there was evidence from which the jury could have ac
Conclusion
The order of the motion court denying the appellant’s Rule 29.15 motion without an evidentiary hearing is reversed and the cause is remanded for an evidentiary hearing on the motion in accordance with this opinion.
HOWARD and HOLLIGER, JJ., concur.