author: RICHARD B. TEITELMAN, Judge.

text:
    Marcellus WILLIAMS, Appellant, v. STATE of Missouri, Respondent.
    No. SC 86095.
    Supreme Court of Missouri, En Banc.
    June 21, 2005.
    As Modified on Denial of Rehearing Aug. 30, 2005.

      Melinda K. Pendergraph, Office of the Public Defender, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, MO, for Respondent.
   RICHARD B. TEITELMAN, Judge.

Marcellus Williams was sentenced to death for the murder of Felicia Gayle. Williams appeals a judgment overruling his Rule 29.15 motion for post-conviction relief. The judgment is affirmed.

FACTS

On August 11, 1998, Williams drove his grandfather’s car to a bus stop and then took a bus to University City, Missouri. While in University City, Williams burglarized Felicia Gayle’s home and fatally stabbed her. After the murder, Williams washed off and took a jacket to conceal his bloody shirt. He left Gayle’s home with her purse and her husband’s laptop computer.

Williams returned to the bus stop, retrieved the car, and then picked up his girlfriend, Laura Asaro. Asaro testified at trial that she saw Williams’ bloody shirt and the laptop computer. She also saw Williams place the clothes in his backpack and throw the backpack into a storm sewer. Asaro further testified that, the next day, while retrieving some of her clothing from the car trunk, she found Gayle’s purse, which contained Gayle’s state identification card, coin purse, and several grocery coupons. Asaro confronted Williams about the items. Williams then confessed to Asaro the details of the murder. A few days later, Asaro also discovered a calculator and a ruler in the car. Both of these items belonged to Gayle.

Approximately three weeks later, Williams was arrested on unrelated charges and incarcerated in the St. Louis City workhouse. At that point, no arrest had been made in the Gayle case and Williams was not a suspect. However, in May 1999, Williams was talking with his cellmate, Henry Cole, and confessed to the murder. Cole was released from jail in June 1999 and went to the University City police and told of Williams’ involvement in the murder, including details that had not been publicly reported. In November 1999, Asaro also told University City police that Williams had confessed to Gayle’s murder. The police searched the car Williams had driven on the day of the murder and found some of Gayle’s personal belongings in the car trunk. The police also recovered Gayle’s husband’s laptop computer from Glenn Roberts. Roberts was an acquaintance of Williams to whom he had sold the laptop after the murder.

Williams was tried and convicted of one count of first-degree murder, first-degree burglary, and first-degree robbery and two counts of armed criminal action. Williams was sentenced to death on the murder conviction. This Court affirmed the conviction and sentence on direct appeal. State v. Williams, 97 S.W.3d 462 (Mo. banc 2003).

Williams timely filed his pro se Rule 29.15 motion for post-conviction relief, alleging several instances of ineffective assistance of counsel. Appointed counsel filed an amended motion. The court held a hearing on Williams’ claim that counsel was ineffective for failing to allow Williams to testify during the penalty phase but denied Williams’ request for a hearing on the remaining claims. The court entered judgement overruling Williams’ motion. Williams appeals.

STANDARD OF REVIEW

Rule 29.15 sets forth the procedure for litigating claims of ineffective assistance of counsel where the defendant has been convicted of a felony. There are two components to a claim of ineffective assistance of counsel. First, a movant must show that counsel’s performance “did not conform to the degree of skill, care, and diligence of a reasonably competent attorney.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). There is a presumption that counsel acted professionally and that any challenged action was part of counsel’s sound trial strategy. Id. Second, if the movant establishes that counsel’s performance was not reasonably competent, then the movant must demonstrate the he or she was prejudiced by counsel’s performance. Id. To demonstrate prejudice, a movant must show that, but for counsel’s poor performance, there is a reasonable probability that the outcome of the court proceeding would have been different. Id. A movant may obtain an evidentiary hearing on his or her Rule 29.15 motion only if: (1) the motion alleges facts, not conclusions, warranting relief; (2) the facts alleged raise matters not refuted by the record; and, (3) the facts alleged must establish prejudice. Ringo v. State, 120 S.W.3d 743, 745 (Mo. banc 2003).

“This Court will uphold the findings and conclusions of the motion court unless they are clearly erroneous.” Morrow v. State, 21 S.W.3d 819, 822 (Mo. banc 2000); Rule 29.15(k). Findings and conclusions are clearly erroneous if, after reviewing the entire record, the appellate court has the definite and firm impression that a mistake has been made. Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000).

ANALYSIS

I. Prosecutorial Misconduct

The state must disclose exculpatory evidence, including evidence that may be used to impeach a government witness. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Rule 25.03. Williams argues that the state faded to disclose the addresses of Henry Cole and Laura Asaro, failed to disclose impeachment evidence regarding Cole and Asaro, and that the state attempted to manufacture evidence against Williams.

Rule 29.15(a) permits a person convicted of a felony to set forth claims that the conviction and sentence “violates the constitution and laws of this state or the constitution of the United States.” However, Rule 29.15 is not a substitute for direct appeal, and this Court has held that “the state’s alleged failure to comply with [mov-ant’s] discovery request is a claim of trial error, which is outside the scope of a Rule 29.15 motion.” State v. Carter, 955 S.W.2d 548, 555 (Mo. banc 1997). Nonetheless, other cases dealing with Rule 29.15 have reviewed similar claims on the merits. See Middleton v. State, 103 S.W.3d 726 (Mo. banc 2003)(reviewing a Rule 29.15 claim alleging the state’s failure to disclose a “deal” with a prosecution witness). Although Williams’ point is arguably a claim for direct appeal and not for a Rule 29.15 motion, the motion court assessed Williams’ claim and determined that Williams’ claims of prosecutorial misconduct were refuted by the record and did not warrant an evidentiary hearing. A review of the record and the motion court’s findings on this issue reveals that the court did not clearly err in denying Williams’ claim.

The trial began on June 4, 2001. In March 2000, the state applied to preserve the testimony of Cole and Asaro by deposition because both witnesses allegedly feared reprisal by Williams and had not been in regular contact with police or prosecutors. In May 2000, the prosecutor notified Williams’ counsel that Cole and Asaro had made videotaped statements and that those statements were available for viewing. Williams’ counsel was, therefore, aware that Cole and Asaro were potential witnesses for more than a year prior to the trial and had access to their statements. Furthermore, on March 13, 2001, nearly three months prior to trial, the state provided Williams’ counsel with Cole’s New York address and Asaro’s St. Louis address. The state also provided defense counsel with the videotaped statements and with police reports concerning both of them. As the motion court found, the state did not conceal the whereabouts or statements of Cole and Asaro such that Williams’ counsel was prevented from adequately investigating their statements and credibility.

Williams’ argument that motion court clearly erred by not finding that the state failed to disclose impeachment evidence regarding Cole and Asaro is similarly without merit because the “prosecution has no obligation to disclose evidence of which the defense is already aware and which the defense can acquire.” State v. Brooks, 960 S.W.2d 479, 494 (Mo. banc 1997). During discovery in the Rule 29.15 case, Williams filed extensive requests for production on the . state that included Cole’s and Asaro’s medical and psychiatric records from a variety of different federal, state, and private institutions. The state responded by allowing defense counsel to inspect and copy everything in the state’s file on the case. If Williams’ counsel wanted to acquire Cole’s and Asaro’s medical and psychiatric records, the discovery requests should have been directed at the entities holding those records.

Finally, Williams alleges that the state manufactured evidence against him because the prosecutor offered to assist two other men with their ongoing criminal prosecutions if they would testify against Williams. Although neither man testified at trial, Williams’s Rule 29.15 motion alleges that he was prejudiced because the fact that “agents for the state were willing to manufacture evidence taints the veracity of the testimony from the State’s paid snitches.” It is speculative and conclusory to allege that the prosecutor’s offer of assistance to two men who did not testify at trial is tantamount to the “manufacture” of evidence that negatively impacts the credibility of witnesses who testified and were subject to cross-examination. The motion court did not err in denying this claim without an evidentiary hearing.

II. Ineffective Assistance of Trial Counsel

A. Failure to Investigate and Impeach Henry Cole

Williams alleges that the motion court clearly erred in denying his claim that trial counsel was ineffective for not investigating several of Henry Cole’s family members and for not obtaining expert testimony to establish that Henry Cole was mentally ill and dishonest. Williams alleges that Cole’s family would have testified that Cole is dishonest.

To prevail on a claim of ineffective assistance of counsel for failure to call a witness, a defendant must show that: (1) trial counsel knew or should have known of the existence of the witness; (2) the witness could be located through reasonable investigation; (3) the witness would testify; and (4) the witness’ testimony would have produced a viable defense. Hutchison v. State, 150 S.W.3d 292, 304 (Mo. banc 2004). Counsel’s decision to not call a witness is presumptively a matter of trial strategy and will not support a claim of ineffective assistance of counsel unless the defendant clearly establishes otherwise. Id.

Nearly all of the alleged testimony that Mr. Cole’s family members could have offered involved prior misconduct such as domestic violence and drug and alcohol abuse. Williams argues that this Court’s decision in State v. Long, 140 S.W.3d 27, 30 (Mo. banc 2004), allows the admission of testimony from Mr. Cole’s family to impeach his testimony. However, the Long decision did not abrogate the rule that extrinsic evidence of prior witness misconduct is generally inadmissible. To the contrary, Long expressly upheld the rule that extrinsic evidence of prior, specific acts of misconduct is generally inadmissible and held only that a witness may be impeached with extrinsic evidence “in some cases” where the “prosecuting witness” has made prior false allegations. Id. at 31. Mr. Cole was neither a victim nor a prosecuting witness. Therefore, as the motion court found, any testimony regarding Cole’s prior, unrelated misconduct was not admissible to impeach his trial testimony. Trial counsel was not ineffective for declining to investigate and introduce inadmissible evidence. State v. Ferguson, 20 S.W.3d 485, 507 (Mo. banc), cert. denied, 531 U.S. 1019, 121 S.Ct. 582, 148 L.Ed.2d 499 (2000).

Williams also contends that counsel was ineffective for failing to investigate Cole’s alleged mental illnesses in order to have him declared incompetent to testify. Williams’ Rule 29.15 motion alleged that Cole had previously been treated for drug addiction and mental illness and did not specify any information in his records that would have established Cole’s incompetence to testify. From this assertion, Williams concludes that the information in Cole’s records would have caused the trial court to find Cole incompetent to testify. Williams’ allegations are speculative conclusions, not facts, and the motion court properly dismissed this claim without an evidentiary hearing.

B. Failure to Investigate and Impeach Laura Asaro

Williams argues that counsel was ineffective for not interviewing and calling two potential witnesses who would have testified that Asaro was a drug addict and prostitute who was framing Williams in order to receive a $10,000 reward that had been offered in the case. As the motion court correctly found, this testimony would have been cumulative to the evidence at trial because the record contained evidence of Asaro’s drug addiction, prostitution, and that she might receive reward money for testifying at trial. Counsel will not be found ineffective for deciding not to introduce cumulative evidence. Skillicorn v. State, 22 S.W.3d 678, 683 (Mo. banc 2000). The motion court did not clearly err in denying an evidentiary hearing on this claim.

Williams also alleges that counsel was ineffective for failing to investigate and offer testimony from Asaro’s mother. Williams alleges that Asaro’s mother would have testified that Williams’ car was inoperable in August 1998. The allegation that she knew that Williams’ car was inoperable during the time the murder was committed is conclusory because it is based only upon the allegation that on several occasions in August 1998 she saw Asaro and Williams use public transit. This allegation does not establish that Williams’ car was inoperable on the date of the murder and that Asaro was, therefore, lying when she testified that Williams gave her a ride on the day of the murder. The testimony also would have been cumulative because Williams’ brother testified at trial that the car was inoperable. The motion court did not clearly err in denying an evidentiary hearing on this claim.

Williams also alleges that trial counsel was ineffective for failing to investigate and call Asaro’s mother to testify Asaro had given her coupons and that these coupons may have been obtained from the victim’s purse. The motion court did not clearly err in denying this claim without a hearing. The allegation that Asaro gave her mother some coupons does not establish that they were, in fact, the same coupons that had been in the victim’s purse. Absent a factual allegation that the coupons were obtained from Gayle, this allegation is conclusory and does not warrant an evidentiary hearing.

Williams also alleged that Asaro’s mother would have testified that she had not read any letters Williams sent to Asaro from jail. Williams argues that his testimony would have impeached Asaro’s trial testimony that Williams had written a letter asking her not to tell about the “U. City incident” but that she did not have the letter because her mother had thrown it away. This claim does not warrant an evidentiary hearing because it would not have impeached Asaro. Asaro testified, consistent with her mother’s alleged potential testimony, that she was the only person who had read Williams’ letter. This testimony would not have provided Williams with a viable defense. The motion court did not clearly err in denying this claim without a hearing.

Williams also alleges that counsel was ineffective for failing to investigate several of his family members who would have testified that Asaro had keys to his car and had access to the car trunk. Williams maintains that this testimony would have shown that Asaro was involved in the murders and was setting him up. However, there was trial testimony that Asaro had access to the car trunk after Williams was incarcerated. Asaro admitted at trial that she had accessed the car trunk to retrieve her clothing after Williams had been incarcerated. Williams’ brother and cousin both testified that they saw Asaro use keys to access the car trunk after Williams was incarcerated. The motion court did not err in denying an eviden-tiary hearing on Williams’ claims that counsel was ineffective for eliciting this cumulative testimony.

Finally, Williams argues that trial counsel was ineffective for failing to test Asaro’s “blood, hair, and fibers” in order to connect her to the crime scene. The allegations contain no specific facts, but instead rely upon speculative conclusions that if such testing was performed, it would show that Asaro was present at the crime scene. The motion court did not clearly err in finding that these allegations plead conclusions, not facts, and did not warrant an evidentiary hearing.

C. Failure to request a limiting instruction

During the guilt phase, the state introduced evidence that Williams attempted to escape from custody and, in the process, assaulted a guard. Defense counsel did not request a limiting instruction. On direct appeal, this Court held that the evidence was properly admitted as evidence of Williams’ guilt. Williams, 97 S.W.3d at 469.

Williams argues that trial counsel was ineffective for failing to offer MAI-CR 3d 310.12, which is a limiting instruction regarding evidence that the defendant was involved in offenses other than those for which he is being tried. In his Rule 29.15 motion, Williams alleges that had counsel offered an instruction patterned after MAI-CR 3d 310.12, “the jury could not have used the evidence improperly as propensity or character evidence.” The motion court concluded that this allegation was speculation regarding the jury’s assessment of the escape evidence and that Williams’ allegations were conclusions, not facts. The motion court also concluded that the decision to not request a limiting instruction was a matter of trial strategy because a limiting instruction may have served only to highlight the state’s evidence. The motion court did not clearly err in denying an evidentiary hearing on this claim.

D. Failure to introduce mitigation evidence

Williams alleges that trial counsel was ineffective for failing to introduce sufficient evidence of his social history during the penalty phase in order to rebut the state’s evidence of aggravating factors. At the evidentiary hearing regarding Williams’ claim, Williams’ counsel testified that the strategy during the penalty phase was to advance the theory of “residual doubt” regarding Williams’ actual guilt. By presenting evidence “to show how [Williams] grew up, that he had a family network of a mother and aunts and brothers and sister,” counsel attempted to convince the jury to impose life imprisonment based upon residual doubt that Williams had committed the murders. Even though the jury had found beyond a reasonable doubt that Williams was legally guilty, counsel was attempting to persuade the jury to impose a life sentence based upon fingering doubt as to his actual guilt. The selection of witnesses and evidence are matters of trial strategy, virtually unchallengeable in an ineffective assistance claim. Leisure v. State, 828 S.W.2d 872, 875 (Mo. banc 1992). The motion court found that an abusive childhood defense would have been inconsistent with the penalty phase strategy and would not have changed the jury’s sentence. The motion court did not clearly err in denying this claim without an evidentiary hearing.

E. Failure to file a motion to quash the indictment

Williams contends that the trial counsel was ineffective for not objecting to the indictment because it did not plead statutory aggravating circumstances. The motion court did not clearly err in overruling this claim without an evidentiary hearing because the claim fails as a matter of law. This Court has held repeatedly that “statutory aggravating circumstances need not be pleaded in the information or indictment.” State v. Strong, 142 S.W.3d 702, 711-712 (Mo. banc 2004); see also, State v. Tisius, 92 S.W.3d 751, 766-767 (Mo. banc 2002).

F. Failure to advise Williams of his Hght to testify

Williams claims the motion court clearly erred in overruling, after an evi-dentiary hearing, his claim that counsel was ineffective for not allowing him to testify during the penalty phase. Williams alleges he was prejudiced because he was the only person who could have explained to the jury how he came to possess the victim’s husband’s laptop computer and that Laura Asaro had participated in Gayle’s murder. Williams argues that the motion court clearly erred in finding that he was, in fact, informed of his right to testify because both of his trial attorneys testified that they did not recall discussing with Williams his right to testify during the penalty phase.

At the evidentiary hearing, both of Williams’ trial attorneys testified and Williams’ testimony was offered through his deposition. The motion court found that Williams’ testimony that he was not informed of his right to testify was not credible because both of his attorneys were experienced in capital cases and it was standard practice for both attorneys to advise their capital clients of their right to testify. The motion court also found that Williams was present at voir dire during which both the guilt and penalty phases were explained. The record supports the motion court’s finding that Williams was informed that he had a right to testify during the penalty phase. The court did not clearly err in denying this claim.

III. Ineffective Assistance of Appellate Counsel

A. Failure to raise on appeal overruling of motion for continuance

On May 7, 2001, nearly a month prior to trial, Williams’ trial counsel filed a motion for continuance asserting a need for more time to prepare. The trial court heard oral arguments and overruled the motion two days later. On May 25, 2001, counsel filed a supplemental motion for continuance. Williams alleged, among other things, that fellow inmate Mathieu Hose had since stated that Williams admitted to stabbing a woman forty times and that the defense team was still waiting on additional forensic test results to determine if Williams was present at the crime scene. The trial court overruled the motion for a continuance. In his Rule 29.15 motion, Williams alleged that appellate counsel was ineffective for failing to raise this issue on appeal. Williams argues that the motion court clearly erred in denying this claim without an evidentiary hearing.

To prevail on a claim of ineffective assistance of appellate counsel, the movant must establish that counsel failed to raise a claim of error that was so obvious that a competent and effective lawyer would have recognized and asserted it. The claimed error must have been sufficiently serious to create a reasonable probability that, if it were raised, the outcome of the trial would have been different. Smith v. Robbins, 528 U.S. 259, 285 120 S.Ct. 746, 145 L.Ed.2d 756 (2000).

The record does not support Williams’ conclusion that appellate counsel could have established that the trial court abused its discretion in overruling the motion. The decision on a motion to grant a continuance “lies within the sound discretion of the trial court.” State v. Brown, 902 S.W.2d 278, 289 (Mo. Banc 1995). At the hearing on the supplemental motion, defense counsel conceded that the state had no intention of using Hose’s statement in its case; in fact, the state did not introduce at trial any evidence regarding Hose’s statements. Williams could not have been prejudiced at trial by the state’s decision to not admit Hose’s statement. Counsel also did not explain how forensics testing could establish that Williams was not present at the crime scene and that a continuance to collect this evidence was necessary for the defense. In any event, defense counsel presented trial testimony from two forensics experts who testified that none of Williams’ hairs were found at the crime scene and that none of his DNA was found under the victim’s fingernails. Williams’ allegations do not support a finding of a reasonable probability that appellate counsel could have successfully argued that the trial court erred by not granting a continuance to allow for further forensic testing. Williams’ defense team had already conducted forensic tests and further tests could not establish Williams’ contention that he was never present at the crime scene.

B. Failure to raise a claim that the trial court erred in precluding expert testimony

Williams argues that appellate counsel was ineffective for failing to raise a claim on direct appeal that the trial court erred in not allowing him to present expert testimony during the penalty phase regarding the psychological impact on his children if he were to be executed. This Court has previously held that testimony from a murder victim’s family as to the appropriate punishment is inadmissible in a capital case. State v. Smith, 82 S.W.3d 582, 555 (Mo. banc 2000). Likewise, this holding would likely extend to exclude testimony from the defendant’s family regarding the appropriate punishment. Furthermore, every court, except one, that has considered this issue has determined that testimony regarding the impact the execution would have on family or friends is inadmissible. See, Commonwealth v. Harris, 572 Pa. 489, 817 A.2d 1033, 1054 (2002); Burns v. State, 699 So.2d 646, 654 (Fla.1997); State v. Stenson, 132 Wash.2d 668, 940 P.2d 1239, 1282 (1997); People v. Sanders, 11 Cal.4th 475, 46 Cal.Rptr.2d 751, 905 P.2d 420, 459 (1995); but see, State v. Stevens, 319 Or. 573, 879 P.2d 162 (1994)(holding, based upon a state statute, that the defendant’s wife could testify as to whether it would be better for her and her daughter if the defendant was executed or spent his life in prison). The motion court did not clearly err in denying this claim without an evidentiary hearing.

IV. Discovery during Rule 29.15 proceedings

Williams argues that the motion court abused its discretion in overruling his motion to compel production of Asaro’s drug treatment records, Cole and Asaro’s mental health and corrections records, and police reports regarding a separate murder investigation in Pagedale, Missouri. Williams argues that the motion court’s ruling prejudiced his ability to advance his claim of prosecutorial misconduct. Williams’ claims are without merit.

First, the state opened its files to Williams’ counsel and allowed counsel to freely inspect and copy any documents from the files. If the state had withheld critical evidence and then introduced that evidence at trial, Williams’ defense team would be able to identify the withheld evidence because they had previously examined the state’s case file.

Second, many of the records requested, such as records from private drug treatment facilities and health care institutions, are not records that the prosecution had in its possession. The state is not required to obtain and then disclose records from other entities simply because defense counsel makes the request. Defense counsel is free to pursue discovery from third parties on essentially the same terms as the state.

Third, the probation and parole records are confidential under section 559.125, RSMo 2000. The motion court did not err in declining to order production of these records.

Finally, the motion court did not abuse its discretion in not ordering production of the police reports. Williams made no showing that the Pagedale murder was in any way connected with the murder for which he was tried and convicted. Evidence that someone else committed the crime is not admissible unless there is evidence directly connecting some identifiable person with the crime. State v. Ferguson, 20 S.W.3d 485, 507 (Mo. banc 2000).

Y. Constitutionality of Lethal Injection

Williams alleges that Missouri’s lethal injection procedure is unconstitutional. He further alleges facts surrounding allegedly flawed executions in other jurisdictions and Missouri’s 1995 execution of Emmett Foster. In order to state a viable claim, Williams must allege “facts that tend to show that there is a problem of administration of the death penalty by lethal injection that is likely to occur again in Missouri.” Morrow v. State, 21 S.W.3d 819, 828 (Mo. banc 2000). This pleading requirement was not met. Williams did not allege facts showing that the protocols used in the Foster execution are still in use or will be in use if Williams is executed. Accordingly, the motion court did not clearly err in denying relief.

VI. Conñict of Interest

Williams argues that the motion court clearly erred by failing to conduct a hearing on his claim that trial counsel had a conflict of interest and that counsel was ineffective for failing to obtain a hearing on this issue. The alleged conflict was that counsel was ineffective for not investigating impeachment witnesses. The motion contains no allegations as to how or why counsel was ineffective for failing to obtain a hearing on this issue. The motion court did not clearly err in overruling this claim without an evidentiary hearing.

VII. Rejection of Post-Conviction Counsel

Rule 29.16 gives indigent capital defendants the right to reject the appointment of post-conviction counsel and provides in part that:

If movant seeks to reject the appointment of counsel, the court shall find on the record, after a hearing if necessary, whether the movant is able to competently decided whether to accept or reject the appointment and whether the movant rejected the offer with the understanding of its legal consequences (emphasis added).

Williams argues that the motion court clearly erred in failing to hold an eviden-tiary hearing on his motion to reject post-conviction counsel and to proceed pro se because the court did not “find on the record” that he had competently decided to reject appointed counsel.

Williams filed two motions to reject counsel in which he alleged that he had no confidence in his appointed Rule 29.15 counsel or that his counsel was pursuing all available Rule 29.15 claims. The court directed appointed counsel to respond. The motion court considered Williams’ motion, as well as the response by appointed counsel, and overruled the motion.

Rule 29.16, unlike Rule 29.15, does not expressly require detailed findings of fact and conclusions of law in ruling upon the motion. The motion court complied with Rule 29.16 by finding on the record that Williams’ motion was without merit. In doing so, the court made an implicit determination that Williams was not competent to reject appointed counsel and did not understand the legal consequences of doing so. If a trial court does not make explicit findings, the appellate court presumes that the trial court made implicit findings in accordance with the result reached. Rule 73.01. The denial of the motion was made on the record as required by Rule 29.16, and the motion court did not clearly err in overruling this claim.

CONCLUSION

The motion court did not clearly err in overruling Williams’ Rule 29.16 motion for post-conviction relief. The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Roland K. SCHAEFER, Plaintiff/Appellant, v. Kenneth H. GIBERT, Defendant/Respondent.
    No. ED 84788.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 11, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 22, 2005.
    Application for Transfer Denied Aug. 30, 2005.
    Roland K. Schaefer, St. Louis, pro se.
    Kenneth H. Gibert, St. Louis, pro se.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J„ and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Roland K. Schaefer (Appellant) appeals from the trial court’s summary judgment in favor of Kenneth H. Gibert (Respondent). We have reviewed the briefs of the parties and the record on appeal and conclude that Respondent is entitled to summary judgment on Appellant’s claims against him. An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).


text:
    Euron MATTHEWS, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 84053.
    Missouri Court of Appeals, Eastern District, Division One.
    Jan. 11, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied June 22, 2005.
    Application for Transfer Denied Aug. 30, 2005.
    William Jerome Ekiss, St. Louis, MO, for Appellant.

      Deborah Daniels, Evan Joseph Buch-heim-co-counsel, Jefferson City, MO, for Respondent.
    Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Enron Matthews appeals from the trial court’s denial of his amended Rule 29.15 postconviction relief motion after an evi-dentiary hearing. We have reviewed the briefs of the parties and the record on appeal and conclude that the trial court’s findings and conclusions are not clearly erroneous. An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).

      . All rule references are to Mo. R.Crim. P.2004, unless otherwise indicated.


author: JAMES M. SMART, JR., Judge.

text:
    Alan ECHOLS, Appellant, v. STATE of Missouri, Respondent.
    No. WD 63758.
    Missouri Court of Appeals, Western District.
    Feb. 22, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 29, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Kent E. Gipson, Public Interest Litigation Cl, Kansas City, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Adriane Dixon Crouse, Asst. Attorney General, Jefferson City, MO, for Respondent.
    Before HAROLD L. LOWENSTEIN, P.J., PAUL M. SPINDEN, and JAMES M. SMART, JR., JJ.
   JAMES M. SMART, JR., Judge.

Alan L. Echols appeals the trial court’s judgment dismissing his Rule 29.15 motion for post-conviction relief based on the “escape rule.” He also attacks the court’s failure to remove his post-conviction counsel, claiming that counsel “abandoned” him and had an “actual conflict of interest.” The judgment is affirmed.

Factual and Procedural Background

Appellant Alan Echols was found guilty of murder in the first degree and armed criminal action after a jury trial. Following the verdict, Echols was permitted, over the State’s objection, to remain free on a $100,000 cash bond with the condition that he appear before the court to post an additional $60,000. The next morning, the State filed a motion for reconsideration of the continuation of bail, and a hearing was held later that day. Echols did not personally appear at that hearing. The court entered an order setting aside the bond and ordering Echols to surrender or be taken into custody. When Echols did not appear in court as ordered, the court revoked Echols’ bond and issued a warrant for his arrest. About six weeks later, a hearing was held at which a motion for forfeiture of the bond was granted. See State v. Echols, 850 S.W.2d 344, 348 (Mo. banc 1993).

Eight years later, in August 1999, Echols was involuntarily apprehended in Louisiana. In October of that year, he appeared before the court and was sentenced to concurrent terms of life imprisonment without the possibility of parole and eighty years.

Prior to his act of absconding, Echols was represented by retained counsel. Following Echols’ recapture, he retained a different attorney to represent him at sentencing and on direct appeal. That attorney brought one point on appeal, i.e., that the court erred in deleting a portion of Echols’ videotaped confession before playing it to the jury because it prevented the jury from assessing his mental state, thereby denying him his rights to due process and to present a defense. This court affirmed the judgment in a per cu-riam order with unpublished memorandum after reviewing the appeal on its merits. State v. Echols, 32 S.W.3d 623 (Mo.App.2000).

Echols timely filed his pro se Rule 29.15 motion for post-conviction relief, and the court appointed counsel to represent him in the post-conviction proceedings. Later, Echols retained the services of the same attorney who represented him on direct appeal (along with another attorney) to represent him on post-conviction relief. Appointed counsel was granted leave to withdraw, and retained counsel timely filed the amended Rule 29.15 motion. A date was set for an evidentiary hearing. On the day that hearing was scheduled, the State filed a motion to dismiss based on the “escape rule” (which says that one who escapes and is recaptured can be deemed to have forfeited the aid of the court as to the proceedings that occurred prior to the escape). Echols’ retained counsel filed written suggestions in opposition to the dismissal motion. The court eventually granted the State’s motion and dismissed Echols’ Rule 29.15 motion without an evi-dentiary hearing.

Echols’ retained counsel represented him in the post-conviction proceedings until the dismissal, after which Echols filed a pro se motion to reconsider. That motion was denied. Echols then filed a pro se notice of appeal of the dismissal order. Again, counsel has been appointed to represent him, and he now brings this appeal.

Standard of Review

Appellate review of the denial of a Rule 29.15 motion is limited to a determination of whether the motion court’s findings of fact and conclusions of law are clearly eiToneous. Rule 29.15(k). Findings and conclusions are clearly erroneous only if, after a review of the entire record, the court is left with a definite and firm impression that a mistake has been made. Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000).

Point I: Escape Rule

Echols argues that the motion court clearly erred in dismissing his Rule 29.15 motion for post-conviction relief pursuant to the “escape rule,” thereby denying him his due process right to meaningful access to the courts.

The “escape rule” generally denies the right of appeal to a defendant who attempts to escape justice by absconding. State v. Troupe, 891 S.W.2d 808, 809 (Mo. banc 1995). The rule also can be applied to deny post-conviction relief. Id.; Fogle v. State, 99 S.W.3d 63, 65 (Mo.App.2003). The rule applies only to errors that occur up to the time of the escape. Robinson v. State, 854 S.W.2d 393, 396 (Mo. banc 1993). Whether to apply the escape rule is discretionary. Troupe, 891 S.W.2d at 811. And its application does not violate a defendant’s constitutional rights because neither a right to appeal a conviction nor a right to a state post-conviction proceeding exists. Randol v. State, 144 S.W.3d 874, 876 (Mo.App.2004) (citing Goeke v. Branch, 514 U.S. 115, 120, 115 S.Ct. 1275, 131 L.Ed.2d 152 (1995) and Reuscher v. State, 887 S.W.2d 588, 590 (Mo. banc 1994)).

A defendant who flees justice may also lose the “opportunity to seek post-conviction relief.” Troupe, 891 S.W.2d at 809. In post-conviction cases, the escape rule has been invoked both to dismiss appeals where the motion court reached the merits of the movant’s claim and to affirm the motion court’s dismissal of a motion based on its own application of the rule. Vangunda v. State, 922 S.W.2d 857, 858 (Mo.App.1996). This case, like Vangunda, deals with the latter situation.

Arguments

Echols claims that the motion court clearly erred in granting the State’s motion to dismiss his Rule 29.15 motion under the “escape rule” for the following reasons: (1) the State was “collaterally estopped” from asserting the escape rule to dismiss his post-conviction motion because this court did not invoke the rule to dismiss his direct appeal; (2) the State did not raise the “escape rule defense” within thirty days after the amended motion was filed; (3) the State did not demonstrate any adverse effects to the legal system caused by his escape; and (4) in light of the seriousness of the charges against him and the merits of his claims for relief, justice would best be served by allowing the claims to be heard on their merits.

Collateral Estoppel

First, we address Echols’ contention that the escape rule could not be invoked in the post-conviction proceeding because the escape rule was not invoked by this court in the direct appeal. Echols argues that the State’s “failure to convince this court to dismiss the direct appeal under the escape rule precluded] the state from re-litigating this issue during post-conviction proceedings.” We disagree. The State requested this court to dismiss Echols’ direct appeal based on the escape rule, but this court declined to do so without commenting on the matter. The court reviewed Echols’ argument on its merits instead. That, however, does not mean that the State’s argument seeking to invoke the escape rule was meritless. This court did not adjudicate the applicability of the escape rule. Rather, we simply exercised our discretion not to invoke the escape rule. Thus, the State was not “collaterally estopped” from reasserting the issue.

Collins v. State, 141 S.W.3d 96 (Mo.App.2004), demonstrates that the failure of an appellate court to dismiss a direct appeal on the basis of the escape rule does not automatically preclude the State from seeking the dismissal of a post-conviction motion under the rule. In Collins, we considered the motion court’s dismissal of the post-conviction motion after the appellate court had declined to apply the escape rule. The dismissal was ultimately reversed, not because the State was collaterally estopped from raising the issue, but because the movant’s claims dealt with post-capture errors that were not subject to the escape rule. Id. at 98. There was no indication that we regarded the State as precluded from raising the escape rule again.

Untimely Filing

Echols also argues that the State’s motion to dismiss in the post-conviction case should have been denied as untimely. Rule 29.15(g) states that “[a]ny response to the motion by the prosecutor shall be filed within thirty days after the date an amended motion is required to be filed.” The State’s motion to dismiss was not filed within thirty days. There is authority, however, that where the State has moved to dismiss on the same day as the hearing, such as here, the dismissal may be granted. See, e.g., Vangunda, 922 S.W.2d at 858. Even if the State had not raised the escape issue, the motion court, on its own, could have invoked the escape rule to dismiss Echols’ motion. See Rulo v. State, 804 S.W.2d 866, 867 (Mo.App.1991) (holding that the motion court had the discretion to dismiss a post-conviction motion pursuant to the escape rule, sua sponte). Any prejudice due to the late filing was alleviated by the court granting the mov-ant ten days in which to file suggestions in opposition. Because the appellant fails to demonstrate that he suffered any prejudice by the State’s timing in filing its motion to dismiss, and because the court could have acted sua sponte, we reject his argument that the motion court erred in granting the “untimely” motion. See State v. Williams, 112 S.W.3d 46, 48-19 (Mo.App.2003) (rejecting the argument that “doctrine of laches” precluded State from asserting the escape rule based on mov-ant’s failure to show prejudice from late filing of motion to dismiss).

Adverse Effects

We also disagree with Echols’ contention that the State did not demonstrate that the escape caused any adverse effects to the legal system. The State, in its motion to dismiss, did argue and attempt to prove that the escape adversely affected the judicial system.

Application of the escape rule requires a relationship between the escape and prejudice to the criminal justice system. Troupe, 891 S.W.2d at 810. Various rationales support the application of the escape rule, including the need to: (1) retain control over the defendant; (2) prevent adverse effects to the criminal justice system that an escape can cause; (3) lessen administrative difficulties caused by the defendant’s absence; (4) prevent the prejudice that may result if the case is remanded for a new trial after an extended delay; (5) discourage escape; (6) encourage voluntary surrender; and (7) preserve respect for the criminal justice system. See id.; State v. Burk, 49 S.W.3d 207, 211 (Mo.App.2001). After listing the various rationales for application of the escape rule in its motion to dismiss, the State argued:

All of these rationales are present in the case before this Court. The defendant by fleeing from the jurisdiction of the Court for over eight years clearly denied the Court its right to control the defendant. The defendant’s long absence clearly caused administrative problems. The State in this case would certainly be prejudiced in that it is now over ten years removed from the time of the trial. Evidence may have been destroyed, witnesses may now be unavailable, and those witnesses who could appear may have clouded memories because of the long delay. These are only a few of the ways in which the State would be prejudiced at a new trial. In addition, this Court has a need to discourage escapes and encourage voluntary surrenders to prevent cases like this from arising more frequently.This defendant is in a[] situation of trying to choose when and which laws he wishes to avail himself of and should not benefit by his wrongdoings.

A motion court is not required to make a specific finding that the judicial system was adversely affected by the escape in order to dismiss under the escape rule. See Vangunda, 922 S.W.2d at 859; Clayton v. State, 910 S.W.2d 369, 370 (Mo.App.1995) (both cases held that it was not eiTor for the motion court to invoke the escape rule to dismiss a motion for post-conviction relief without an express finding of whether the escape adversely affected the criminal justice system).

The State’s motion to dismiss, as well as the record in this case, supports the court’s dismissal order. Many of the rationales underlying the escape rule are applicable here. The court had to issue a warrant for Echols’ arrest. Law enforcement authorities were required to expend resources to search for him, to find him in the State of Louisiana, and to return him to Missouri. The forfeiture of the $100,000 cash bond posted by Echols’ family members certainly did nothing to promote the willingness of citizens to post a cash bond for an accused. See State v. Echols, 850 S.W.2d 344 (Mo. banc 1993). Echols’ escape caused an eight-year delay in sentencing, which also adversely affected the criminal justice system. See Troupe, 891 S.W.2d at 810.

Another oft-cited rationale for the escape rule is that “[t]hose who seek the protection of our legal system must be willing to comply with its rules and decisions.” State v. Massey, 98 S.W.3d 105, 107 (Mo.App.200S). Here, Echols has shown a refusal to accept the decision of the trial court by absconding, but now seeks the protection of the court in a post-conviction proceeding.

Merits of the Claims

Echols contends that the “equities involved ... strongly dictate in favor of hearing [the] post-conviction motion.” Echols argues that in light of the seriousness of the charges against him and the merits of his claims for relief, justice would be best served by allowing his claims to be heard on their merits.

Echols first contends that in most cases where the escape rule has been applied, the charges were not as serious and the punishments not as severe as in his case. We do not find this necessarily to be true. See, e.g., Burk, 49 S.W.3d at 208 (first-degree robbery and armed criminal action, sentenced to life imprisonment and fifteen years); State v. Buff, 34 S.W.3d 856 (Mo. App.2000) (first-degree assault and armed criminal action, sentenced to two consecutive thirty-year prison terms); and State v. Kelley, 792 S.W.2d 697 (Mo.App.1990) (first-degree murder, sentenced to life imprisonment without eligibility for parole).

Echols argues the merits of his claims warranted an evidentiary hearing, citing this court’s holding in State v. White, 81 S.W.3d 561 (Mo.App.2002). In that case, we declined the State’s invitation to dismiss the direct appeal under the escape rule and remanded for a new trial based on our concerns about possible prosecuto-rial misconduct and the harm that failing to address such misconduct might cause the criminal justice system. Id. at 565-66.

That decision was simply an exercise of discretion, just like the decision of the motion court here. Echols’ claims of ineffective trial counsel (e.g., failure to file a motion to suppress his confession) might, in the absence of his escape, warrant a hearing, but we have no reason to believe that he could show either ineffectiveness or prejudice. Moreover, the issue before us is not whether we should invoke the escape rule, but rather whether we can say it was an abuse of discretion for the motion court to invoke the escape rule. We do not perceive, in this case, that the motion court would or should have seen the same potential for a miscarriage of justice or manifest injustice that we found in White. Point denied.

Point II: Abandonment and Conflict of Interest

In his second point on appeal, Echols argues that the trial court clearly erred in denying his Rule 29.15 motion and in failing to sua sponte remove his post-conviction counsel. According to Echols, post-conviction counsel “abandoned” him by failing to file the motion for reconsideration or notice of appeal. Echols also alleges that counsel necessarily had an “actual conflict of interest,” in that he also represented Echols on direct appeal and therefore would have been reluctant to assert his own ineffectiveness as appellate counsel.

The escape rule applies only to errors that occurred up to the time of escape. Robinson v. State, 854 S.W.2d 393, 396 (Mo. banc 1993). A defendant who has escaped and been returned to custody is entitled to appeal any post-capture errors. Id. Echols’ complaints here with regard to his representation by post-conviction counsel are allegations as to events occurring after he was re-captured and returned to custody. Thus, these arguments are not precluded from consideration by the escape rule.

Echols retained a different attorney to represent him on direct appeal. That attorney raised one point of error concerning the deletion of a portion of Echols’ videotaped confession before it was played to the jury. This court denied the appeal and affirmed Echols’ convictions and sentences. See Echols, 32 S.W.3d at 623. Later, Echols again retained the services of his appellate attorney (along with another attorney) to represent him in his post-conviction proceedings. The retained attorneys filed an amended Rule 29.15 motion with eleven claims of error but included no allegations of ineffective assistance of appellate counsel.

Echols now contends that his post-conviction counsel had an “actual conflict of interest” in that he also represented Echols on direct appeal. That conflict, Echols says, was the reason post-conviction counsel failed to advance any claims of ineffective assistance of appellate counsel. Echols cites no specific ineffective assistance claims that should have been brought, and none were included in his pro se Rule 29.15 motion. Nevertheless, according to Echols, there were “several col-orable claims of ineffective assistance of appellate counsel ... that should have been advanced.” Citing State v. Griddine, 75 S.W.3d 741 (Mo.App.2002), and State v. Taylor, 1 S.W.3d 610 (Mo.App.1999), Echols claims that his “successive representation” by the same attorney “created an inherent conflict of interest that adversely affected his performance.” In both Taylor and Griddine, this court found an “actual conflict of interest” that amounted to ineffective assistance of counsel. The circumstances in those cases differ from this case. In those cases, the effect of the conflict of interest was transparent, in that appointed counsel not only refused to file a motion for post-conviction relief, but also attempted to dissuade the client from filing pro se. Here, counsel filed and prosecuted the post-conviction motion, although counsel focused on trial counsel error. Nevertheless, Echols contends that the “force and logic” of those decisions should apply to this case.

Although we are inclined to disagree with Echols’ contentions in this case, we need not address them because they are moot in view of our determination that the motion court did not abuse its discretion in invoking the escape rule to dismiss the post-conviction motion. We can find that the contentions are not moot only upon a belief that new appointed counsel could and would have pleaded such powerful and obvious claims of ineffective appellate counsel that the motion court would have abused its discretion in applying the escape rule in the face of such an obvious injustice.

Echols, in his pro se motion, failed to allege that appellate counsel was ineffective in any way. Likewise, now, he still fails to allege any specific claim of ineffective assistance of appellate counsel that he thinks should have been raised in his post-conviction motion. Lacking information about any specific claim of palpable ineffectiveness that could or should have been raised, we have no reason to believe that new counsel could have pleaded any claim of such a nature as to preclude the motion court’s exercise of discretion to invoke the escape rule. Given the broad range of discretion enjoyed by the motion court with regard to the escape rule, and the lack of any reason to believe the court was required to do anything other than dismiss the motion, the contention as to motion court error in this regard is moot.

Conclusion

For the foregoing reasons, the judgment is affirmed.

LOWENSTEIN and SPINDEN, JJ., concur.

      . Although the interrogation was lengthy, the record indicates that Echols, after being informed of his rights, steadfastly maintained his innocence until the interrogator mentioned DNA testing. Echols then confessed, gave a lengthy videotaped confession, and took officers to the location where he buried the murder weapon and discarded other evidence.


text:
    SHERWOOD NATIONAL EDUCATION ASSOCIATION, L. Dianne Hon, Gayle R. Wilson, and Darla Zook, Appellants/Respondents, v. SHERWOOD-CASS R-VIII SCHOOL DISTRICT, Respondent/Appellant.
    Nos. WD 63931, WD 63947.
    Missouri Court of Appeals, Western District.
    March 29, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 31, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Sally E. Barker, St. Louis, MO, Arguing on behalf of Appellant.
    Michael H. James, Chesterfield, MO, Arguing on behalf of Respondent.
    Before HAROLD L. LOWENSTEIN, P.J., JAMES M. SMART, JR., and EDWIN H. SMITH, JJ.
   JAMES M. SMART, JR., Judge.

Certain public school teachers and their teachers’ association, Sherwood National Education Association, brought a declaratory judgment action challenging the decision of the Sherwood Cass R-VII School District to pay certain teachers “commitment fees.” The plaintiffs contend that such an arrangement exceeds the scope of the District’s authority under the Missouri Teacher Tenure Act, §§ 168.104 et seq., RSMo. The plaintiffs requested as relief the granting to all other teachers the same fees. The trial court held that the commitment fee agreements were unlawful but denied plaintiffs’ request for monetary relief. The District appealed the trial court’s judgment. The plaintiffs cross-appealed the denial of monetary relief. The appeal and cross-appeal are consolidated.

We affirm the judgment of the trial court in all respects.

Factual Background

The following facts are the stipulated facts upon which the cross motions for summary judgment were submitted.

Plaintiff Sherwood-National Education Association (“SNEA”) is a teachers association that advocates for teachers’ wages, benefits, and rights. Plaintiff SNEA filed this action on behalf of all its teacher members. The individual plaintiffs, Diane Hon, Gayle Wilson, and Darla Zook, are tenured teachers who have been employed by Defendant Sherwood-Cass School District (“District”) from August 1988 to the present.

The District is a Missouri public school district located in Cass County. It is governed by an elected Board of Education. The Board’s authority to determine teacher compensation is governed by statute, primarily the Teacher Tenure Act, §§ 168.104, et seq.

On or about June 20, 2001, the District’s Board of Education adopted a salary schedule for its teachers for the 2001-2002 school year. The schedule provides for base teacher compensation according to defined “steps,” i.e., classifications based upon the criteria of level of education and years of experience. The individual plaintiffs are paid at step levels ranging from step 12 to step 25.

The District also adopted an extra duty schedule for the 2001-2002 school year that specified the compensation for teachers who agreed to accept an extra-duty assignment (such as coaching or other extra-curricular activities) in addition to their teaching duties. The extra-duty compensation is also determined according to steps and defined categories of extra-duty assignments.

Commitment Fees

In June 2001, seven teachers selected by the District were also offered an additional form of compensation for the 2001-2002 school year. This additional form of compensation was called a “commitment fee.” Six of these teachers were new to the District for the 2001-2002 school year: Jerri Manning, Shawn Manning, Cathleen Ford, Karen Lasswell, Amy Bancroft, and Jeff Scott. The other teacher given a commitment fee — Jason Riel — had taught in the District since the 1993-1994 school year. The commitment fees paid to these seven teachers were in addition to their base salaries provided for in the salary schedule.

The sum of $2,000 was offered to four teachers, and the sum of $1,000 was offered to three teachers. Five of the seven commitment fee agreements contained the following language:

In recognition of the need for quality teachers, who are committed to students’ long term educational needs, the District is offering a commitment fee of $[applieable amount] to teachers who sign and return their contracts for the 2001-02 school term within ten days, and who complete the 2001-02 and 2002-03 school years. Teachers who accept payment of the commitment fee and who leave the district prior to the end of the 2002-03 contract year will be required to refund the entire commitment fee.

The commitment fee agreements for two other teachers were identical except that their agreements were contingent on their signing and returning their contracts for the 2001-2002 school year “on or by May 31, 2001” (as opposed to “within ten days”).

The Suit

Plaintiffs filed their lawsuit challenging the Board’s authority to offer fees to only seven of the teachers who agreed to teach for the 2001-2002 school year and not to the remaining, similarly situated teachers. As relief, Plaintiffs requested that the court declare the commitment fee agreements a violation of the Teacher Tenure Act. Plaintiffs also requested that the court direct that all teachers who did not receive the commitment fees for the 2000-2001 school year be paid a comparable sum to compensate them for the effective demotion they suffered as a result of teaching for less money that school year than the seven teachers who received the commitment fees.

The parties submitted cross-motions for summary judgment on a stipulated record. After oral argument on the motions, the trial court held that the District exceeded the scope of its authority under sections 168.104, .110, .112, .114, and .126 of the Missouri Teacher Tenure Act by entering into the commitment fee agreements. The court declared the commitment fee agreements unenforceable. The court also held that the plaintiffs could not compel the monetary relief it sought. The District appealed this judgment. Plaintiffs cross-appealed the denial of their requested monetary relief.

The District argues on appeal that the court erred in failing to recognize that the commitment fee agreements are valid contracts not covered by the Teacher Tenure Act.

Legal Analysis

The Missouri Constitution, art. IX, § 1(a), provides for the establishment of public schools. Pursuant to this constitutional mandate, the General Assembly enacted various statutes establishing and regulating public schools, including Chapters 160, 161, 162, 163, 164, 165, 167, 168, 170, 171, 177 and 178. Section 162.261 vests the government and control of each District in a Board of Education. The Board is empowered by section 171.011 to make “all needful rules and regulations for the organization, grading and government in the school district.”

The board of each district legislatively adopts a salary schedule applicable to all teachers prior to the school year. § 168.110; Vilelle v. Reorg. Sch. Dist. No. 1, 689 S.W.2d 72, 75 (Mo.App.1985). Section 168.110(2) provides that a school board may modify an indefinite contract by fixing the annual compensation in accordance with the “salary schedule ... applicable to all teachers.” The Teacher Tenure Act has as one of its purposes the protection of competent and qualified teachers in the security of their positions. Hirbe v. Hazelwood Sch. Dist., 532 S.W.2d 848, 850 (Mo.App.1975). In the exercise of its powers the Board may not act in an unreasonable, arbitrary, capricious or unlawful manner. Adamick v. Ferguson-Florissant Sch. Dist., 483 S.W.2d 629, 632-33 (Mo.App.1972). A tenured teacher has an indefinite contract with the district that may be modified as provided in sections 168.110 and 168.112 or terminated as provided in sections 168.114 to 168.118. Vilelle, 689 S.W.2d at 75. Putting these provisions together, we see a purpose within this legislation that all teachers be paid for their teaching duties in accordance with the salary schedule adopted by the district.

In Vilelle, 689 S.W.2d at 74-75, a teacher in Benton County brought an action against his employer school district, contending that the district had violated Missouri’s Teacher Tenure Act by refusing to pay the plaintiff the same salary it paid other tenured teachers of similar experience and education. Plaintiff became employed by the district in 1972. Before the start of 1981-1982 school year, the district offered to rehire the plaintiff at his 1980-1981 salary, although other teachers were given increases in accordance with the 1981-1982 salary schedule. In subsequent years, the district continued to rehire plaintiff without any increases, although all other teachers received increases. After three years of not being paid under the schedule, plaintiff sued the district for a declaration that he must be paid in accordance with the salary schedule. He argued that the district’s action to pay him off the schedule amounted to a demotion in violation of the Act.

The trial court held that the district’s action was not illegal because the salary schedules were not binding on the district but were only “guidelines.” Id. at 75. The court also held that the district was not required to pay plaintiff more, and that plaintiff accordingly was not demoted within the meaning of the Teacher Tenure Act. Id.

This court in Vilelle reversed the ruling of the trial court, holding that, whatever the district attempted to call its salary schedules, they were salary schedules “applicable to all teachers,” in accordance with section 168.110. Id. at 76. The court further held that because the district refused to pay the plaintiff in accordance with the schedule, it demoted him within the meaning of section 168.104(2). Id. at 78. The court held the district was required to pay plaintiff the difference in salary for all three years he was paid an amount not on the schedule. Id.

In Long v. School District of University City, 777 S.W.2d 944, 945^7 (Mo.App.1989), as in Vilelle, the school district froze the salary of teacher Mary Louise Long, refusing to move her ahead on step and salary because of dissatisfaction with her performance. However, the district brought no charges against her, and provided her with no contested hearing as to whether she should be demoted or terminated. As in Vilelle, the court in Long determined that the refusal to advance teacher Long in step and salary amounted to a demotion and was a violation of the Teacher Tenure Act because it was not done in accordance with the procedural requirements of the Act. Id. at 947-48.

The principles established in the statutes, and illustrated generally by Vi-lelle and Long, is that teachers cannot be compensated for their teaching duties in an amount other than what is set forth in the salary schedule without running afoul of the Teacher Tenure Act.

The Sherwood School District here argues, however, that even granted all of the foregoing, in this case there was no violation of the Act because school districts have the right to enter into contracts for non-teaching duties without reference to the salary schedule. The District says that the commitment fee contracts were not about teaching students, but instead were about other things. The District argues, therefore, that there is nothing improper about the commitment fee contracts.

The District points out that the General Assembly has enacted no legislation providing limitations with regard to contracts of permanent teachers that cover non-teaching duties. Kish v. Chilhowee R-IV Sch. Dist., 814 S.W.2d 649, 652 (Mo.App.1991). See also Hudson v. Marshall, 549 S.W.2d 147, 158 (Mo.App.1977), and Sadler v. Bd. of Educ. of Cabool Sch. Dist. R-4, 851 S.W.2d 707 (Mo.App.1993).

In Sadler, a tenured teacher asserted that his pay for extra duty (coaching and other extracurricular duties) was subject to the provisions of the Teacher Tenure Act. The teacher argued that such extra duty contracts could not be unilaterally terminated by the school district. In rejecting this argument, the court reasoned that the term “indefinite contract” as defined in section 168.104(3) does not encompass “every contract” with a permanent teacher regardless of its subject matter. Sadler, 851 S.W.2d at 711. Rather, the court said, the term “indefinite contract” as used in the act is limited to “every contract” that covers teaching duties (or “those duties that require a teaching certificate”). Id.

Similarly, in Campbell v. Reorganized School District No. 1, 904 S.W.2d 18 (Mo.App.1995), the court upheld a provision whereby teachers received an extra month of compensation for preparing their classrooms for the coming year. The district in that case had adopted a practice of offering an extra month of compensation to select teachers to prepare the rooms and help with registration. Id. at 20. When the district sought to revoke the practice due to financial woes, the teachers sued the district, claiming the extra month could not be unilaterally rescinded because it was essentially part of the teaching contract. Id. This court, citing Sadler, rejected the argument.

The teachers testified at trial that during the extra month they ordered supplies, prepared their rooms for the ensuing school year, put up bulletin boards and painted signs. They argue that these tasks were performed in preparation for teaching classes and thus became a part of their teaching duties. While the activities are related to teaching, they are not attendant to teaching students. The education of children and not these activities require a teaching certificate. The appellants did not teach students during the extra month, and they were not hired to do so. The Teacher Tenure Act, therefore, does not protect the extra month provision; and the school district was not precluded by section 168.110 from declining to offer the additional month provision to the appellants.

Id. at 21-22.

The District here argues that, as in Campbell, the commitment fee agreements offered by the Sherwood School District to certain teachers related to the establishment of rights and responsibilities between the parties for matters separate and apart from teaching duties. In order to receive the commitment fee, the District points out, the teacher was required to (1) execute the teaching contract within ten days (an obligation not otherwise required of a teacher); (2) commit to remain in the employ of the District for a specified term that was longer than a single school year (again, an obligation not otherwise required of a teacher); and (8) agree to refund the commitment fees if the teacher left the district. Each of these provisions, argues the District, were related to the establishment of rights and obligations between the parties that were separate and apart from the performance of teaching duties. The School District argues that the execution of the commitment fee agreement essentially waived or modified the right to resign and the right to non-renew. The School District acknowledges these actions “are arguably related to teaching,” but says they are not “attendant to teaching students,” borrowing language from Campbell.

The District’s argument is faulty. The argument that the teacher is performing a substantial service to the District by returning the contract promptly is tenuous. There is no showing that the District could not require every teacher to return the contract promptly. Moreover, the District’s argument is undercut by the fact that although some of the contracts say “within 10 days,” others say “by May 31.” Also, we fail to see that the teacher is providing a non-teaching service to the district by agreeing to remain employed as a teacher by the District for longer than a single year. The way the teacher earns the commitment fee is the same way the teacher earns the basic salary — by continuing to teach students in the district. The “commitment fee agreements” clearly are about teaching students. The commitment fee does not relate to any additional non-teaching duties, such as those performed by the teachers in Campbell.

The “commitment fee” is simply a way of attempting to compensate certain teachers off the salary schedule for their teaching duties in order to induce them to remain with the District. This is not a contract for some extra-curricular duties, such as coaching, doing administrative work, or doing some Campbell-like duties. Consequently, we believe this case is distinguishable from Campbell. We understand that some teachers are truly deserving of more compensation than their colleagues. It simply is difficult to square the concept of merit pay with the Teacher Tenure Act, which had as one of its purposes the minimization of the part that “malice, political or partisan trends, or caprice” might play in the employment of teachers. Glanville v. Hickory County Reorg. Sch. Dist., 637 S.W.2d 328, 330 (Mo.App.1982). The security and stability that teachers gained under the Act was obtained by trading off certain other things, including, at least to some extent, the right to extra compensation for exceptional competence. We conclude that the trial court did not err in finding the commitment fee contracts to be invalid.

Next, we turn to the issue, on the cross-appeal of the plaintiffs, as to whether the trial court erred in denying the relief requested in the form of additional compensation to all the other teachers.

First, we note that the District raises an issue as to the standing of the SNEA to seek such relief in behalf of all the teachers. “Standing is a threshold requirement. Without it, a court has no power to grant the relief requested.” Querry v. State Highway & Transp. Comm’n, 60 S.W.3d 630, 634 (Mo.App.2001). “Lack of standing cannot be waived....” Id. “Appellate review of whether a litigant has standing is de novo.” Kinder v. Holden, 92 S.W.3d 793, 803 (Mo.App.2002). “This court determines standing as a matter of law on the basis of the petition, ‘along with any other non-contested facts accepted as true by the parties at the time the motion to dismiss was argued.’ ” Id.

SNEA is an unincorporated association, and the individual plaintiffs are members of SNEA. SNEA has alleged, in a conclu-sory manner, that it has “associational standing to represent the interests of the other teacher members of the SNEA.” We do not know how many or what percentage of the teachers who would be affected are members of SNEA.

Standing is the requisite interest that a person must have in a controversy before the court. State ex rel. Mo. Health Care Ass’n v. Mo. Health Facilities Review Committee, 768 S.W.2d 559, 561 (Mo.App.1988), overruled on other grounds by West County Care Ctr., Inc. v. Mo. Health Facilities Review Committee, 773 S.W.2d 474 (Mo.App. 1989). A voluntary membership association may have standing in its derivative capacity by seeking judicial relief from injuries to its own rights or in its representative capacity by seeking to vindicate whatever rights its members may enjoy. Mo. Health Care Ass’n, 768 S.W.2d at 561. To have standing in its representative capacity, an association must allege that “its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action that would make out a justiciable case had the members themselves brought suit.” Id. (quoting Citizens for Rural Pres., Inc. v. Robinett, 648 S.W.2d 117, 133 (Mo.App.1982)). An association is permitted to sue on behalf of its members if: (a) its members have standing to bring suit in their own right; (b) the interests the association seeks to protect are germane to its purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Mo. Outdoor Adver. Ass’n, Inc. v. Mo. State Highways & Transp. Comm’n, 826 S.W.2d 342, 344 (Mo. banc 1992); Mo. Nat’l Educ. Ass’n v. Mo. State Bd. of Educ., 34 S.W.3d 266, 275 (Mo.App.2000).

The District argues that in the present case SNEA cannot establish the third and final part of the test, i.e., that neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. The interests sought to be protected are the rights of the individual teachers under the terms of their separate and individual indefinite contracts of employment with the District. SNEA is not a party to an indefinite teaching contract with the District. It appears that the declaration of the rights of individual teachers under the terms of their contracts with the District involves the assertion of claims and requests for relief that require the participation of the individual plaintiffs herein. Even assuming that all the teachers wish to be compensated by an amount equivalent to a “commitment fee,” it is not clear what “commitment fee” ($1,000 or $2,000) would be appropriate to each individual teacher. The arguments about how to determine such an amount might put some teachers at odds with other teachers. There would also be potential issues as to whether the commitment fee would apply to any teachers who left the district in the contemplated period, and as to any teachers now deceased. There is no reason here that individual teachers who wish to pursue a claim could not do so in their own names. Because it seems that the claim asserted and the relief requested arguably require the participation of individual members in the lawsuit, SNEA appears to lack standing.

The trial court, however, was clearly entitled to adjudicate the claims of the individual teachers who are named parties. No argument is made by the District that the individual teachers lacked standing to assert their own claims. Those teachers also argue that the awarding of the commitment fees to seven select teachers constituted a demotion as to them and as to all the other teachers not selected for the commitment fee. They argue that, as in Vilelle and Long, the proper remedy is to direct the district to compensate all teachers accordingly. Accordingly, whether or not SNEA has standing, the trial court was obligated to adjudicate the identical claims as far as the issue of whether the District had any liability. The trial court determined the District did not have liability, so the issue of what damages or compensation might be due became moot in the trial court. Accordingly, if we affirm the trial court, we need not decide the issue of SNEA’s standing.

Vilelle and Long are distinguishable from this case in that in those cases there was an actual de facto demotion of the teacher because he was the only one paid off schedule. The proper remedy for an improper demotion is the restoration of the salary and benefits lost because of the demotion. Where there is no demotion, however, we see no justification for providing equivalent compensation to other teachers who did not receive the commitment fees.

Here, there was no demotion. Because only seven teachers received the commitment fee, there can be no argument that the whole salary schedule was generally shifted to incorporate the commitment fee. Rather, the commitment fees were paid to a sufficiently small number of teachers that it is reasonable to say that those teachers were the ones being paid “off the schedule.” Vilelle and Long thus provide no basis for ordering the district to equally compensate other teachers. Because the teachers lack any authority for their position beyond Vilelle and Long, and because those cases are distinguishable, we deny the cross-appeal of the teachers. Because of our ruling on the cross-appeal, we need not definitively address and decide the issue of the SNEA’s standing, as it is moot.

The judgment is affirmed.

LOWENSTEIN and EDWIN H. SMITH, JJ., concur.

      . Unless otherwise noted, all statutory references are to Revised Statutes of Missouri 2000.

      . May is a significant month for teacher contracts. As to teachers currently employed by a district, no modifications as to the school year or annual compensation can be made after May 15. Section 168.110. Also, a teacher desiring to terminate a contract at the end of the year is to give notice of intention to do so not later than June 1. Section 168.112. Thus, requiring a teacher to return a contract by May 31 would seem to provide no great assistance to the district.


text:
    STATE of Missouri, Respondent, v. Darin E. LEWIS, Appellant.
    No. WD 63456.
    Missouri Court of Appeals, Western District.
    March 29, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 31, 2005.
    Application for Transfer Denied Aug. 30, 2005.
    Rebecca L. Kurz, Kansas City, MO, for Appellant.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Karen L. Kramer, and Deborah Daniels, Jefferson City, MO, for Respondent.
    Before PAUL M. SPINDEN, P.J., VICTOR C. HOWARD and THOMAS H. NEWTON, JJ.
   ORDER

PER CURIAM.

Mr. Darin E. Lewis, Jr., was convicted of one count of murder in the first degree, a class A felony; one count of armed criminal action, a felony; and one count of unlawful use of a weapon, a class D felony.

Mr. Lewis appeals two rulings by the trial court excluding certain evidence that he claims would have supported his claim of self-defense.

For the reasons set forth in the memorandum to the parties, we affirm. Rule 30.25(b).


author: HAROLD L. LOWENSTEIN, Judge.

text:
    SKILLPATH SEMINARS, Appellant, v. Ritchard SUMMERS, Defendant, Division of Employment Security, Respondent.
    No. WD 63577.
    Missouri Court of Appeals, Western District.
    April 5, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied May 31, 2005.
    Application for Transfer Denied Aug. 30, 2005.

      Robart 0. Lesley, Kansas City, MO, for appellant.
    Alan J. Downs, Jefferson City, MO, for respondent.
    Before LOWENSTEIN, P.J., SPINDEN and SMART, JJ.
   HAROLD L. LOWENSTEIN, Judge.

This is an appeal from a determination by the Labor and Industrial Relations Commission (“Commission”) that Ritchard Summers earned “wages” “in employment” as an employee of SkillPath Seminars (“SkillPath”). At issue is whether, under Chapter 288, SkillPath was Summers’ employer and thus required to report his wages to the State of Missouri.

Statement of Facts

In 1998, Summers entered into a contract with the appellant, SkillPath, to present seminars on computer technology. According to the parties’ “Training Services Agreement” (“Agreement”), Summers worked for SkillPath in the capacity of an “independent contractor.” He offered seminars in twenty-four states (including Missouri), the District of Columbia, Canada, and Australia. To continue his relationship with SkillPath, Summers was required to maintain acceptable levels of customer satisfaction and product sales.

Because Summers described himself an expert in computer technology training, he did not undergo any formal training prior to giving his first presentation. Instead, SkillPath required him to go to its Kansas office for a one-time “run-through,” after which he was given verbal feedback.

Once he began presenting seminars, Summers indicated his availability on a month-by-month basis. After seminars were scheduled, Summers was unable to change the time or date. SkillPath provided Summers with a laptop computer, a LCD projector, and a baseline power point presentation for use at seminars. Even though Summers was free to deviate from the power point, he was still required to present on the specific topic(s) advertised to the customer for each respective seminar.

Because SkillPath did not provide Summers with an office, he worked from his home in St. Louis, Missouri. In instances where he did modify SkillPath’s power point presentation, he did so at his home. SkillPath also sent a packet containing each month’s work assignments to this address and called him at home if they needed to communicate with him for any reason.

When Summers presented seminars in locations other than St. Louis, SkillPath paid his mileage both to and from his home. In addition, it paid for Summers’ hotel, provided a $40.00 per day per diem food allowance, and funded expenses for airline tickets and ground transportation when he did not drive to the location. Summers was otherwise paid a flat fee for each day he presented a seminar.

Under the Agreement, SkillPath could not end its relationship with Summers unless he failed to present seminars promptly, competently, and professionally. He was also expected to sell $8 worth of products per attendee at each seminar. Because he did not meet SkillPath’s sales requirement, Summers was terminated in May of 2003. Summers then filed a claim for unemployment benefits. SkillPath denied liability, arguing that Summers was an independent contractor rather than an employee. The Division of Employment Securities (“Division”) found that Summers performed services for “wages” “in employment” by SkillPath and was, therefore, subject to Missouri Employment Security Law; the Commission affirmed. SkillPath now appeals.

Standard op Review

In reviewing an employment security decision, this court “may modify, reverse, remand for rehearing, or set aside” the Commission’s decision if: (1) the Commission acted without or in excess of its powers; (2) the decision was procured by fraud; (3) the facts found by the Commission do not support the award; or (4) there was no sufficient competent evidence in the record to warrant making the award. § 288.210. Where a dispute involves “the construction and application of the statute to virtually uncontroverted facts, the issue is one of law” and is reviewed de novo. Div. of Employment Sec. v. Taney Cty. Dist. R-III, 922 S.W.2d 391, 393 (Mo. banc 1996). Even in instances where the Commission reached the correct result, albeit for an incorrect reason, the decision should be affirmed. Lauderdale v. Div. of Employment Sec., 605 S.W.2d 174, 178 (Mo.App.1980).

Analysis

Service performed by an individual for which he or she gets paid is labeled as “employment” unless it is shown that such service was performed in the capacity of an independent contractor. § 288.034(5). An employer is required to report wages to the State of Missouri if one of Section 288.034’s four jurisdictional tests is satisfied. “Employment,” as set forth by statute includes:

an individual’s entire service, performed within or both within and without this state if:
(1) The service is localized in this state; or
(2) The service is not localized in any state but some of the service is performed in this state and the base of operations, or, if there is no base of operations, then the place from which such service is directed or controlled, is in this state; or the base of operations or place from which such service is directed or controlled is not in any state in which some part of the service is performed but the individual’s residence is in this state.

§ 288.034(2).

In this case, the Division determined that Summers performed services for “wages” in “employment” by SkillPath, thus entitling him to receive unemployment compensation. The Commission affirmed, reasoning that Summers’ services were localized in Missouri. Although the Commission based its conclusion on the incorrect subsection of Section 288.034, the correct outcome was nonetheless achieved.

In its first point on appeal, SkillPath contends that the Commission acted in excess of its powers in determining Summers was entitled to wage credits because his services were not localized in Missouri. While SkillPath is correct in this contention, the Commission’s determination can be affirmed on other grounds. Specifically, Summers’ base of operations was in Missouri and he performed services in the state.

Many states’ unemployment statutes are modeled after uniform laws proposed by the federal government. The United States Department of Labor has interpreted the localization provisions contained in these uniform statutes to provide states guidance in applying their own respective statutes. In defining “base of operations,” it states that “[t]he individual’s base of operations should not be confused with the place from which his service is directed or controlled.” United States Department of Labor, Unemployment Insurance Program Letter No. 291, Unemployment Insurance Coverage of Service Performed, Both Within and Without a State, Interpretation of “Localization of Work” Provisions (July 1, 1952), available at http://ows.doleta.go /dmstree/uipl/uipl_p re75/uipl_291a.htm [hereinafter “UIPL 291”]. Moreover,

[t]he “base of operations” is the place or fixed center of more or less permanent nature from which the employee starts work and to which he customarily returns in order to receive instructions from his employer or communications from his customers or other persons, or to replenish stocks and materials, to repair equipment, or to perform any other functions necessary to exercise his trade or profession at some other point or points. The base of operations may be the employee’s business office which may be located at his residence, or the contract of employment may specify a particular place at which the employee is to receive his directions and instructions. This test is applicable principally to employees, such as salesmen, who customarily travel in several States.

Id. (emphasis added). Application of this test is to be employee-focused, viewing all interaction with an employer from the standpoint of the employee. See id. (stating inquiry should be framed according to whether “the individual perform[ed] some service in the State in which his base of operations is located”) (emphasis in original).

To further illustrate the circumstances under which the base of operations test is appropriate, the Department of Labor provided the following examples:

1. A salesman, a resident of California, sold products in California, Nevada, and Oregon for his employer whose place of business was in New York. The salesman operated from his home where he received instructions from his employer, communications from his customers, etc. Once a year the salesman went to New York for a two-week sales meeting. His base of operations was in California and he performed some serviced in California. Therefore, all of his service was covered by the California law.
2. An employee worked for a company whose home office was in Pennsylvania. He was made a regional director working out of a branch office in New York. He worked mostly in New York, but spent considerable time also in Pennsylvania and New Jersey. The individual's base-of-operations was in New York. Since he performed some service in New York and his base of operations was in New York, it is immaterial that the direction and control was in Pennsylvania, and all of the individual’s service was covered by New York law.

UIPL 291. As is evident from these scenarios, an appropriate examination focuses on the state in which the employee performs job functions and receives communications, not the state from which the employer directs or controls the employee or the state of the employer’s base of operations.

Instead of following this approach, Skill-Path urges this court to look to other jurisdictions that have similar jurisdictional statutes, which have found that an employee’s residence is not his or her base of operations. See, e.g., S.E.A. Trucking v. Dep’t of Labor, 269 Mont. 108, 887 P.2d 236 (1994); In re Normyle, 161 A.D.2d 888, 556 N.Y.S.2d 785 (1990); Heller v. Int’l Transport, Inc., 94 Idaho 91, 481 P.2d 602 (1971). None of these cases, however, explicitly contemplate the Department of Labor’s examples. Furthermore, important factual differences exist between the instant case and the cases cited by Skill-Path.

For instance, although the S.E.A. Trucking court stated that it applied the base of operations test “from the standpoint of the employee,” it ultimately concluded that employees’ wages should have been reported to the state in which the trucking company’s base of operations was located, rather than the state serving as the base of operations for the individual employees. S.E.A. Trucking, 887 P.2d at 241. Similarly, the instant case contains more supporting evidence that Summers’ residence served as his base of operations than do the cases cited by SkillPath. See, e.g., In re Normyle, 556 N.Y.S.2d at 787 (holding that claimant’s base of operations was in New York, when he merely started from and returned to his out-of-state home after business trips, received occasional calls at home from his employer, but traveled to New York three to four times each year for training); Heller, 481 P.2d at 604 (stating that when the only function claimant performed at his home any different than those typically conducted at one’s residence was “performing] basic functions of his job,” claimant’s home did not qualify as his base of operations since hauling trailers was inherently incapable of being performed in one place).

Here, Summers lived in St. Louis and worked from his home. He received packets of materials from SkillPath on a monthly basis and prepared his presentations while at home. SkillPath contacted Summers in St. Louis and paid him mileage to and from his home when he drove to the various seminar locations. Summers presented 111 seminars in Missouri during the course of his relationship with SkillPath. As a result, Missouri is Summers’ base of operations and “some of the service” was performed within the state. Consequently, Summers’ services fall within Section 288.034(2) and SkillPath is subject to Missouri’s Employment Security Law. Point denied.

SkillPath next contends that the Division erred in determining Summers was entitled to wage credits because it failed to consider each of the twenty factors used to determine whether a worker is an employee who earns “wages in employment.” Section 288.034(5) provides that “[i]n determining the existence of the independent contractor relationship, the common law of agency right to control shall be applied.” The common law agency test, inter alia, provides that if “the alleged employer retains the right to control the manner and means by which the results are to be accomplished, the individual who performs the service is an employee. If only the results are controlled, the individual performing the service is an independent contractor.” § 288.034(5). IRS Revenue Ruling 87-41 sets forth a twenty-factor test to help determine if a worker is an independent contractor. No one of these factors is controlling, but should all be balanced to reach a determination of the worker’s status. Fritts v. Div. of Employment. Sec., 11 S.W.3d 721, 725-27 (Mo.App.1999).

Here, examination of the twenty factors leads to the overall determination that Summers was an employee. Although the contract between the parties labeled Summers as an “independent contractor,” such self-given labels are not determinative. Stover Delivery Sys. v. Div. of Employment. Sec., 11 S.W.3d 685, 688 (Mo.App.1999). Facts that are important to determination, however, include: (1) SkillPath exercised control over the content of Summers’ presentations, as he was required to present the information that had been advertised to the customers and had to have acceptable levels of customer satisfaction and product sales; (2) Summers was given verbal feedback on his method of presentation after an initial run-through; (3) Summers was issued a business card, which contained his name along with his employer’s address and phone number; (4) although Summers was entitled to hire a substitute, SkillPath had to approve the substitute in advance; (5) an indicia of a continuing relationship was present, as Summers performed services on a regular basis for five years and presented a total of 529 seminars; (6) Summers had no control over the time and date of seminars once set; (7) although permitted by contract to offer his services to others, Summers did not do so and routinely informed SkillPath that he was “available all month” to present seminars; (8) Summers was required to collect registration materials and program evaluations and submit them within two days; (9) Summers was required to account for his actions by submitting invoices in order to receive payment; (10) SkillPath paid for Summers’ airline tickets, hotel, mileage, ground transportation, and provided a $40.00 per day per diem food allowance; (11) Skill-Path provided Summers with a laptop computer and LCD projector to use in seminars; and (12) Summers did not have the potential for profit and loss in the entrepreneurial sense, in that it was not possible for him to lose money while working for SkillPath.

In addition, SkillPath argues that two additional factors — provision of employee benefits and tax treatment — should also be considered. Summers did not receive employee benefits and SkillPath did not withhold funds from his paycheck for federal, state, or local taxes. Although these factors certainly weigh in favor of classifying Summers as an independent contractor, they do not outweigh the above-listed factors that indicate Summers is an employee. The Commission’s decision, therefore, is affirmed.

Conclusion

Section 288.034(2)’s base of operations test must be applied from the employee’s point of view. Because Summers received mailings and telephone communications from SkillPath in Missouri, prepared for seminars in Missouri, and was paid mileage for traveling from his home to seminars outside of St. Louis, the Commission correctly determined that his base of operations was in Missouri. Furthermore, since SkillPath controlled the manner in which Summers performed, the Commission did not err in classifying him as an employee.

The judgment is affirmed.

All concur.

      . All statutory references are to RSMo. (2000) unless otherwise indicated.

      . Although the record does not contain a definite date, it appears that Summers moved from Chicago, Illinois, to St. Louis on or about November 26, 1998.

      . The twenty factors important in determining whether the requisite degree of control was exercised include: (1) Instructions; (2) Training; (3) Integration; (4) Services Rendered Personally; (5) Hiring, Supervising, and Paying Assistants; (6) Continuing Relationship; (7) Set Hours of Work; (8) Full Time Required; (9) Doing Work on Employer's Premises; (10) Order or Sequence Set; (11) Oral or Written Reports; (12) Payment by Hour, Week, Month; (13) Payment of Business and/or Traveling Expenses; (14) Furnishing of Tools and Materials; (15) Significant Investment; (16) Realization of Profit or Loss; (17) Working for More Than One Firm at a Time’ (18) Making Service Available to General Public; (19) Right to Discharge; (20) Right to Terminate. Rev. Rui. 87-41, 1987-1 C.B. 296.