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Smith v. State11/14/2001
Appeal From: Circuit Court of Mississippi County, Hon. David C. Mann
Opinion Vote: AFFIRMED. Prewitt, J., and Parrish, J., concur.
Duncan Smith ("Appellant") appeals the motion court's denial of his motion brought pursuant to Rule 29.15. Because the motion court's ruling was not clearly erroneous, that ruling is affirmed.
Appellant was convicted of the misdemeanors of driving while intoxicated and possession of drug paraphernalia and of felony possession of a controlled substance. He appealed those convictions, and this court affirmed in State v. Smith, 979 S.W.2d 215 (Mo.App. S.D. 1998). Appellant now files a motion under Rule 29.15 alleging that he had ineffective assistance of counsel on his appeal. Initially, Appellant raised two complaints concerning his counsel on appeal, only one of which he asserts to this court now.
Appellant, an Illinois-licensed attorney, was stopped by a police officer for driving on the wrong side of the road. Before Appellant stopped his car he was observed handing a Crown Royal bag to his passenger, who placed it under the front seat. The police arrested Appellant at the scene and impounded the automobile. After his arrest for DWI during a police inventory of Appellant's property at the station, the police discovered an envelope addressed to Appellant containing a granular substance which proved to be cocaine.
During the search of the car, officers discovered the Crown Royal bag with two metal pipes and a nail inside. Appellant represented himself at trial and filed a broad-based motion to suppress the Crown Royal bag, with drug paraphernalia and the envelope, but he did not file a motion for new trial after his conviction of all three charges. Appellant claims his appellate counsel was ineffective for failing to assert that the trial court plainly erred in overruling Appellant's motion to suppress the bag and drug paraphernalia found inside the bag.
This court's review is limited to a determination of whether the motion court clearly erred in making its findings and conclusions denying the ineffective assistance claim. Rule 29.15(k); Hall v. State, 16 S.W.3d 582, 585 (Mo. banc 2000). Findings and conclusions are "clearly erroneous" only if after a review of the entire record the court is left with the definite and firm impression that a mistake has been made. State v. Taylor, 929 S.W.2d 209, 224 (Mo. banc 1996). To prevail on an ineffective assistance of counsel claim Appellant is required to show: (1) counsel's performance did not conform to the degree of skill and diligence of a reasonably competent lawyer, and (2) Appellant was prejudiced by counsel's inept performance. Id. Appellant must show prejudice by proving by a reasonable probability that the result would have been different if not for his counsel's errors. State v. Ervin, 835 S.W.2d 905, 929 (Mo. banc 1992). This court may review for prejudice prior to determining whether counsel's actions were incompetent. Id. Under these standards we find no clear error.
Initially, Respondent contends the appeal should be dismissed for the reason that the Crown Royal bag that forms the basis of Appellant's argument related only to the misdemeanor conviction of possession of drug paraphernalia. Respondent correctly contends that Rule 29.15 grants relief to those convicted of felonies only, not to those convicted of misdemeanors. See Rule 29.15(a); Schleeper v. State, 982 S.W.2d 252, 253 (Mo. banc 1998)(Rule 29.15 provides the exclusive procedure for seeking post-conviction relief for persons convicted of a felony). Thus, any claim of error raised through the avenue of a Rule 29.15 motion must relate only to a felony. The Crown Royal bag that
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