Weinert v. State

593 S.W.3d 666

Bradley R. WEINERT, Appellant,

v.STATE of Missouri, Respondent.

No. ED 107715

Missouri Court of Appeals, Eastern District, DIVISION TWO.

Filed: January 21, 2020

FOR APPELLANT, Steven Kratky, Missouri Public Defender’s Office, 1010 Market Street, Suite 1100, St. Louis, Missouri 63101.

FOR RESPONDENT, Richard A. Starnes, Attorney General, PO Box 899, Jefferson City, Missouri 65102.

Philip M. Hess, Presiding Judge

Introduction

Bradley Weinert ("Movant") appeals the motion court’s denial of his Rule 29.15¹ motion for post-conviction relief. Movant claims his appellate attorney ("Appellate Counsel") was ineffective for failing to assert on direct appeal the trial court erred in accepting unauthenticated documentary evidence from the driving while intoxicated tracking system ("DWITS"). The use of the DWITS records supported Movant’s classification as a "chronic offender" under Section 577.023.² Movant claims the motion court erred in finding Appellate Counsel’s actions were reasonable because a reasonable attorney at the time should have recognized the claim of error ("DWITS claim") and asserted it on direct appeal. We disagree. We find Movant has failed to show the DWITS claim was so obvious any reasonably competent attorney would have asserted it at the time of Movant’s direct appeal. Therefore, we find the motion court’s conclusion regarding Appellate Counsel’s performance was not clearly erroneous. The motion court’s denial of Movant’s amended motion is affirmed.

Factual and Procedural Background

Movant was charged with driving while intoxicated under Section 577.010 as a "chronic offender" under Section 577.023.1(2). Movant’s case went to trial in the circuit court of St. Louis County. Before the case was submitted to the jury, the circuit court held a hearing outside the jury’s presence on Movant’s classification as a "chronic offender" under Section 577.023. The State presented printed copies of search results from the DWITS as Exhibits 1 through 6. These DWITS records were hard-copy facsimiles of online searches of the DWITS, which indicated Movant had been found guilty or entered a guilty plea for six intoxication-related traffic offenses. Movant’s counsel objected there was no foundation to authenticate the DWITS records. The trial court overruled the objection and accepted the evidence saying it had accepted these records in other cases under Section 577.023.16. The trial court classified Movant as a "chronic offender" under Section 577.023.1(2) enhancing the class B misdemeanor charge of driving while intoxicated to a Class B felony charge. At trial, the jury found Movant guilty. Movant was sentenced by the circuit court to a term of 11 years in the Missouri Department of Corrections.

Movant appealed the judgment and sentence. Appellate Counsel represented Movant on direct appeal and asserted three properly preserved claims of error. He claimed the trial court abused its discretion by overruling the timely objections of Movant’s trial counsel when the State used:

• evidence of the severity of one of the victim’s injuries because it was irrelevant and prejudicial;

• evidence of long-term emotional trauma allegedly suffered by one of the victim’s because it was irrelevant and prejudicial;

• six beer bottles during closing argument because they were irrelevant and not offered into evidence at trial.

If granted, each claim would have resulted in a new trial. Movant’s claims were denied on direct appeal in a per curiam order. See State v. Weinert , 502 S.W.3d 78 (Mo. App. E.D. 2016).

Movant timely filed a pro se Rule 29.15 motion claiming Appellate Counsel was ineffective during the direct appeal. Post-conviction counsel timely filed an amended Rule 29.15 motion. Movant claimed Appellate Counsel failed to assert the DWITS claim, which was preserved for appeal. Movant claimed the trial court allowed the State to use the DWITS records without authenticating the documents by presenting them as certified business records or calling a witness to attest to their authenticity. Movant claimed if Appellate Counsel brought the DWITS claim there was a reasonable probability the case would have been remanded to the trial court for re-sentencing.

The motion court held an evidentiary hearing. Movant and Appellate Counsel testified. Appellate Counsel testified he reviewed the record for Movant’s direct appeal, including the trial transcript and post-trial motion. Appellate Counsel conceded the DWITS claim was preserved for appeal. Appellate Counsel also read Section 577.023.16 in his review of the Movant’s file. Appellate Counsel believed the statute allowed the DWITS records to come in as offered by the State. Appellate Counsel believed certain records must be certified based on the language of the statute, but the records used by the State did not require certification. Appellate Counsel believed the language of Section 557.023.16 eliminated the need to authenticate or lay foundation for DWITS records.

The motion court denied Movant’s amended Rule 29.15 motion. The motion court found the DWITS claim was properly preserved by trial counsel’s objection and post-trial motion. The motion court found Appellate Counsel asserted three other preserved claims of error on direct appeal, not including the DWITS claim. The motion court also found Appellate Counsel had impressive qualifications and experience including over 25 years of appellate work. The motion court found Appellate Counsel reviewed Movant’s trial transcript and post-trial motion. The motion court also found Appellate Counsel reviewed the language of Section 577.023.16 and, after review, chose not to appeal the DWITS claim because he believed after review the statute allowed the use of the DWITS records.

According to the motion court, Appellate Counsel decided not to appeal the DWITS claim based on "focused and thoughtful attention and analysis[.]" The motion court found Appellate Counsel made a "considered, intentional decision." The motion court found Movant failed to meet the burden of showing, by a preponderance of the evidence, Appellate Counsel was ineffective for failing to assert the DWITS claim on appeal. The motion court also found Movant failed to show the failure to assert the DWITS claim prejudiced Movant.

This appeal followed.

Discussion

Standard of Review

This Court reviews a motion court’s judgment denying post-conviction relief to determine whether any findings of fact or legal conclusions were clearly erroneous. Rule 29.15(k); Meiners v. State , 540 S.W.3d 832, 836 (Mo. banc 2018). A judgment is clearly erroneous only if this Court is "left with a definite and firm impression that a mistake has been made." Id. A movant has the burden of proving all allegations by a preponderance of the evidence. Rule 29.15(i).

"In reviewing the overruling of a motion for post-conviction relief, the motion court's findings are presumed correct." Zink v. State , 278 S.W.3d 170, 175 (Mo. banc 2009) (citing Worthington v. State , 166 S.W.3d 566, 572 (Mo. banc 2005) ). We defer to "the motion court's superior opportunity to judge the credibility of witnesses." Barton v. State , 432 S.W.3d 741, 760 (Mo. 2014) (quoting State v. Twenter , 818 S.W.2d 628, 635 (Mo. banc 1991) ).

Strickland Standard – Failure to Raise A Claim on Appeal

To be entitled to post-conviction relief based on ineffective assistance of appellate counsel, the movant must satisfy the two-prong test set out in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The movant must first establish appellate counsel’s performance was deficient. Meiners , 540 S.W.3d at 836 (citing Strickland , 466 U.S. at 687, 104 S.Ct. 2052 ). A movant must also demonstrate the deficient performance resulted in prejudice to his defense. Id. (citing Strickland , 466 U.S. at 687, 104 S.Ct. 2052 ). A movant must satisfy both prongs of the Strickland test. State v. Simmons , 955 S.W.2d 729, 746 (Mo. banc 1997). If the movant fails to satisfy either prong, an appellate court need not consider the other. Id.

Performance

To show deficient performance, a movant must show counsel "failed to exercise the level of skill and diligence that a reasonably competent counsel would in a similar situation." Meiners , 540 S.W.3d at 836 (quoting McIntosh v. State , 413 S.W.3d 320, 324 (Mo. banc 2013) ). We analyze the decisions of appellate counsel in essentially the same way as trial counsel. Murray v. State , 511 S.W.3d 442, 445-46 (Mo. App. E.D. 2017) (citing Helmig v. State , 42 S.W.3d 658, 682 (Mo. App. E.D. 2001) ). There is a strong presumption counsel’s conduct was reasonable and effective. Johnson v. State , 406 S.W.3d 892, 899 (Mo. banc 2013).

"[S]trategic choices made after a thorough investigation of the law and the facts relevant to plausible opinions are virtually unchallengeable." Zink , 278 S.W.3d at 176 (internal citations omitted) (quoting Strickland , 466 U.S. at 690, 104 S.Ct. 2052 ). "Reasonable choices of trial strategy, no matter how ill-fated they appear in hindsight, cannot serve as a basis for a claim of ineffective assistance." Anderson v. State , 196 S.W.3d 28, 33 (Mo. banc 2006). On appeal as well as at trial, the choice of one reasonable strategy over another is not ineffective assistance. Zink , 278 S.W.3d at 176 (citing Worthington , 166 S.W.3d at 573 ).

For a failure to raise a claim on appeal, a movant must show a claim of error is "so obvious from the record that a competent and effective lawyer would have recognized it and asserted it." Murray , 511 S.W.3d at 446 (citing Reuscher v. State , 887 S.W.2d 588, 591 (Mo. banc 1994) ). An appellate attorney does not have to raise every preserved issue. Meiners , 540 S.W.3d at 838 (citing Storey v. State , 175 S.W.3d 116, 148 (Mo. banc 2005) ). Appellate counsel can strategically decide to "winnow out" non-frivolous arguments in favor of other reasonable arguments. Murray , 511 S.W.3d at 446 (citing Mallett v. State , 769 S.W.2d 77,...