author: ROBERT G. ULRICH, P.J.

text:
    Leontae C. HILL, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64874.
    Missouri Court of Appeals, Western District.
    Jan. 17, 2006.

      Jeannie M. Willibey, Kansas City, MO, for appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before: ROBERT G. ULRICH, P.J., PATRICIA A. BRECKENRIDGE, and JAMES M. SMART, JJ.
   ROBERT G. ULRICH, P.J.

Leontae Hill appeals from the judgment of the motion court denying his Rule 29.15 motion for postconviction relief without an evidentiary hearing. Mr. Hill sought to vacate his convictions for four counts of assault of a law enforcement officer in the first degree, section 565.081, RSMo 2000, and four counts of armed criminal action, section 571.015, RSMo 2000, and consecutive sentences of life imprisonment for each count of assault of a law enforcement officer and fifteen years imprisonment for each count of armed criminal action. Mr. Hill claims that the motion court erred in denying his Rule 29.15 motion because (1) his convictions and sentences for armed criminal action charged in Counts 4, 6, and 8 violated the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, and (2) he was denied effective assistance of counsel when counsel failed to call a witness to testify and failed to request the submission of instructions on the lesser included offenses of assault in the second degree and assault of a law enforcement officer in the second degree.

Facts

At 12:30 a.m. on January 1, 2000, Officers Steven Walker, Anthony White, Jeff Colvin, and Leon Bradley were on patrol in a marked police car. (Normally, only two officers ride in a car.) After hearing automatic gunfire, they drove toward its source, where they saw two men, Leontae Hill and Noah Sanders, on the steps of an apartment building at 2603 East 29th Street in Kansas City. Brandon Vaughn was a third person present.

The officers shined a light on Mr. Hill and Mr. Sanders, whose prior attempts to shoot-out streetlights had drawn the officers’ attention. Mr. Hill then told Mr. Vaughn, “If they ride back through I’m going to get them,” and he told Mr. Sanders that his New Year’s resolution was to shoot the police. • Mr. Sanders told him not to do this, but Mr. Hill ignored him. When the police circled back, Mr. Hill fired his automatic weapon some thirty times at the car, hitting Officer Walker in the head and Officer Colvin in the neck. The police car was extensively damaged but continued on.

After he finished firing, Mr. Hill said; “I think I hit them.”

Officer Colvin drove the car two blocks away from the scene of the shooting and stopped. En route, dispatch was called. Soon thereafter, a tactical response team arrived at the scene-of the shooting.

Without a warrant, the team members went from door to door, knocking and asking those who responded whether they were injured and whether they knew anything about the shooting. Officer Williams, the team’s point man, knocked on the door of the apartment in which Mr. Hill was found. A young woman, Raphae-la Moore, opened the door, and Officer Williams told Ms. Moore “we would like to come in and speak to [you].” Ms. Moore invited the police inside. Once inside, they saw, in addition to Ms. Moore, a young man lying on a couch in the front room. The only light in the apartment was the flickering of a TV screen.

' Officer Williams asked Ms. Moore for her consent to search the apartment. She said that she was only a visitor and that they should ask the tenant, who was in the first bedroom. She also said that the only people in the apartment were she and the young man, the tenant and the tenant’s children.

While moving down the hallway toward the first bedroom, the police saw movement in the back bedroom, which they then entered. Mr. Hill was lying in a bed in a fetal position facing away from the door, and Mr. Vaughn was crouched beside the bed, trying to hide. Officer Williams ordered both men to stand up. When Mr. Hill stood up, the police saw an automatic weapon lying on the bed. Both men were taken into custody, and their weapons— Mr. Vaughn had a .38 handgun — were confiscated.

Mr. Hill was charged by indictment with four counts of assault of a law enforcement officer in the first degree and four counts of armed criminal action. The jury returned guilty verdicts on all of the counts, and the trial court sentenced Mr. Hill to consecutive terms of life imprisonment for each count of assault of a law enforcement officer and fifteen years imprisonment for each count of armed criminal action. Mr. Hill’s convictions and sentences were affirmed in his direct appeal. State v. Hill, 114 S.W.3d 310 (Mo.App. W.D.2003).

Thereafter, Mr. Hill filed his pro se Rule 29.15 motion for postconviction relief. Appointed counsel filed an amended motion on Mr. Hill’s behalf raising claims of ineffective assistance of trial counsel. The motion court denied Mr. Hill’s motion without an evidentiary hearing. This appeal followed.

Standard of Review

Appellate review of the denial of a postconviction motion is limited to determination of whether the motion court’s findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k); Morrow v. State, 21 S.W.3d 819, 822 (Mo. banc 2000). Findings of fact and conclusions of law are clearly erroneous only if, after a review of the entire record, an appellate court is left with the definite and firm impression that a mistake has been made. Morrow, 21 S.W.3d at 822.

I. Double Jeopardy

In Mr. Hill’s first point on appeal, he claims that the motion court clearly erred in denying his Rule 29.15 motion for postconviction relief because the trial court exceeded its jurisdiction in entering convictions and sentences for armed criminal action as charged in Counts 4, 6, and 8. Specifically, Mr. Hill contends that those convictions and sentences violated the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution because Counts 4, 6, and 8 charged identical offenses to the offense charged in Count 2.

Count 1 charged assault of a law enforcement officer in the first degree alleging that Mr. Hill attempted to kill or to cause serious physical injury to Anthony White, a law enforcement officer, by shooting at him. Count 2 charged armed criminal action specifically alleging:

the defendant committed the felony of Assault of Law Enforcement Officer First Degree charged in Count 1, all allegations of which are incorporated herein by reference, and the defendant committed the foregoing felony of Assault of Law Enforcement Officer First Degree by, with and through the use, assistance and aid of a deadly weapon.

Count 3 charged assault of a law enforcement officer in the first degree regarding Officer Jeffrey Colvin; Count 5 charged assault of a law enforcement officer in the first degree regarding Officer Leon Bradley; and Count 7 charged assault of a law enforcement officer in the first degree regarding Officer Steven Walker. Counts 4, 6, and 8 charged armed criminal action using the identical language as Count 2, referencing the assault of a law enforcement officer charge in Count 1. Mr. Hill contends that because Counts 2, 4, 6, and 8 all charged that he committed the felony charged in Count 1 through the use of a deadly weapon, he was “twice put in jeopardy” for the same offense.

The State argues that this claim is waived because Mr. Hill failed to raise it in the trial court, on direct appeal, or in his motion for postconviction relief and raises it for the first time in this appeal. The State further contends that even if the claim was not waived, Mr. Hill was not convicted of four counts of armed criminal action for the assault of Officer White because the jury instructions for each of the verdict directors for armed criminal action referenced a separate assault count.

The case of State v. Frances, 51 S.W.3d 18 (Mo.App. W.D.2001), controls. In Frances, the defendant was convicted of two counts of first-degree assault, one count of second-degree assault, and three counts of armed criminal action for shooting Gregory Watson, Stanley Johnson, and Jonathon Barnes. Id. at 19. All three armed criminal action counts in the original indictment and the amended information incorporated and referred to the first degree assault against Gregory Watson, which was charged in count 1. Id. at 20. The case was tried to the court, and the court found the defendant guilty of all six counts. Id. The court’s judgment did not set out the counts in detail but instead referred to the amended information and described the counts as either assault in the first degree or armed criminal action. Id.

On appeal, the defendant challenged two of the three convictions for armed criminal action contending that all three charges of armed criminal action were identical in that all related specifically to the shooting of Gregory Watson. Id. at 19-20. He claimed that his three convictions for the same offense violated his rights under the Double Jeopardy Clause of the Fifth Amendment of the United States Constitution. Id. at 20. The State argued that the erroneous cross-referencing was merely a typographical error in the information that did not prejudice the defendant because the record taken as a whole, including statements made by the prosecutor in opening statements and closing arguments, revealed that the prosecutor intended to charge the defendant with three separate counts of armed criminal action related to three separate assaults. Id. at 21.

Despite not raising his double jeopardy claim in the trial court, this court reviewed the claim citing Hagan v. State, 836 S.W.2d 459, 461 (Mo. banc 1992), which mentioned the jurisdictional nature of such a claim because the right to be free from double jeopardy is a constitutional right that goes to the power of the State to bring a defendant into court to answer a charge. Frances, 51 S.W.3d at 21.. This court rejected the State’s argument of mere typographical error stating:

The [Sjtate forgets that a transcript of the opening statement and closing argument will not be part of the documents reflecting this conviction. While a discerning reader might assume that counts 4 and 6 contain typographical errors, there remains confusion because of the normal assumption that the charges express exactly what the [Sjtate intended to charge. We cannot say that the [Sjtate’s view is the only reasonable construction. Second, since one of the reasons for accuracy and sufficiency in pleadings is to avoid conflict with provisions against double jeopardy, we find it unacceptable to simply ignore the appearance that the defendant’s double jeopardy rights have been violated.

Id. 23. This court vacated the two convictions for armed criminal action because the information and the judgment did not reflect that counts 4 and 6 were based on different incidents and no part of the record was attached to the judgment to show this. Id. at 23-24.

As in Frances, all four counts of armed criminal action charged in the indictment in this case referred to the shooting of Officer White. Furthermore, the judgment in this case did not set out the counts in detail but instead described the counts as either assault of a law enforcement officer in the first degree, a class A felony, or felony armed criminal action. Nothing was attached to the judgment to show that the counts were based on different incidents.

The State admits that each armed criminal action count of the indictment referenced the assault of a law enforcement officer charge in Count 1 relating to the shooting of Officer White. It contends, however, that Mr. Hill was not convicted of four counts of armed criminal action for that one assault because the jury instructions for each of the armed criminal action verdict directors reference a separate assault count. The verdict directors and forms, however, were inconsistent with the indictment and each other. For example, in the indictment, Count 1 relates to the shooting of Officer White, Count 3 relates to Officer Colvin, Count 5 relates to Officer Bradley, and Count 7 relates to Officer Walker. While the State apparently wishes the reader of the indictment to assume that the armed criminal action charged in Count 4 corresponded to the assault charged in Count 3 (Officer Col-vin), the verdict director that referred to Count 4 of armed criminal action actually corresponded with the assault of Officer Bradley, which was alleged in Count 5. And the verdict director for the armed criminal action referred to as Count 6, which presumably the State would relate to the assault in Count 5 (Officer Bradley), corresponded with the assault of Officer Colvin, which was alleged in Count 3.

The verdict forms further add confusion because the form for Count 4 stated that the jury found Mr. Hill guilty of armed criminal action as submitted in instruction no. 11; however, instruction no. 11 submitted Count 6. Likewise, the verdict form for Count 6 stated that the jury found Mr. Hill guilty of armed criminal action as submitted in instruction no. 14; however, instruction no. 14 submitted Count four. Given these discrepancies, the verdict directors and forms did not clarify what the indictment intended to charge and, in any case, were not part of the judgment reflecting the conviction. While a reader might assume from the indictment and judgment that the State intended to charge Mr. Hill with four separate counts of armed criminal action related to the shootings of the four separate victims, as found in Frances, “we find it unacceptable to simply ignore the appearance that the defendant’s double jeopardy rights have been violated.” 51 S.W.3d at 23. The point is granted, and the convictions for armed criminal action and consecutive sentences on Counts 4, 6, and 8 are vacated.

II. Ineffective Assistance of Counsel Claims

In points two and three, Mr. Hill claims that the motion court clearly erred in denying his postconviction relief claim without an evidentiary hearing. He contends that he was denied effective assistance of counsel when counsel failed to call a witness to testify and to request the submission of instructions on lesser included offenses.

An evidentiary hearing shall not be held if “the motion and flies and records of the case conclusively show that the mov-ant is entitled to no relief.” Rule 29.15(h). A trial court will not draw factual inferences or implications in a Rule 29.15 motion from bare conclusions or from a prayer for relief. Morrow, 21 S.W.3d at 822. An evidentiary hearing is required only if (1) the motion alleges facts, not conclusions, warranting relief; (2) the facts alleged raise matters not refuted by the files and records in the case; and (3) the matters complained of resulted in prejudice. Id. at 822-23.

To obtain an evidentiary hearing for claims related to ineffective assistance of counsel, a movant must allege facts, not refuted by the record, showing that counsel’s performance did not conform to the degree of skill, care, and diligence of a reasonably competent attorney and that the movant was prejudiced thereby. Id.', Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To demonstrate prejudice, the facts alleged must show a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Morrow, 21 S.W.3d at 822.

A. Failure to Call a Witness

Mr. Hill first claims that he was denied effective assistance of counsel when counsel failed to call' Erica Page, the tenant of the apartment in which he was found and arrested, to testify at the suppression hearing. Mr. Hill sought to suppress items seized and statements made during the search of the apartment arguing that the search was illegal because the police did not have a valid warrant and did not obtain valid consent. Mr. Hill asserts that he alleged sufficient facts to warrant an evidentiary hearing on this claim.

To warrant a hearing on a claim of ineffective assistance of counsel for failure to call a witness, a movant must allege: (1) the identity of the witness; (2) what the witness’ testimony would have been; (3) that counsel was informed of the witness’ existence; (4) whether the witness was available to testify; and (5) that the testimony would have provided the movant with a viable defense. Wilkes v. State, 82 S.W.3d 925, 928 (Mo. banc 2002).

In his motion, he claims to have repeatedly asked his attorney to call Ms. Page as a witnéss, that his attorney was aware of Ms. Page’s existence and whereabouts, and that she was available to testify. He also alleged that Ms. Page would have testified that he had her permission to stay in her apartment as an overnight guest the night of his arrest. Mr. Hill claimed that such testimony would have established that he had a legitimate expectation of privacy in Ms. Page’s back bedroom where he was found and, thus, the evidence found in the search of the bedroom, an assault rifle and ammunition, would have been suppressed, and the outcome of the trial would have been different.

Mr. Hill’s motion for postconviction relief failed to show that Ms. Page’s testimony would have provided him with a viable defense. Even if Mr. Hill established that he had a legitimate expectation of privacy in the back bedroom of the apartment, the record reveals that the conduct of the police officers was not illegal.

The first issue is whether Ms. Moore had authority to permit the police officers into the apartment. The State bears the burden of proving by a preponderance of the evidence that the consenting party possessed authority to grant her consent. United States v. Clark, 234 F.Supp.2d 471, 476 (D.N.J.2002). “If a ‘man of reasonable caution in the belief would believe that the consenting party had authority over the premises searched, the search is valid.” Id. When the State seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by the defendant. United States v. Turbyfill, 525 F.2d 57, 59 (8th Cir.1975)(quoting United States v. Matlock, 415 U.S. 164, 170, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974)). The State may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. Id. (quoting Matlock, 415 U.S. at 170, 94 S.Ct. 988). The existence of common authority rests on “mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of them number might permit the common area to be searched.” Id. (quoting Matlock, 415 U.S. at 171 n. 7, 94 S.Ct. 988).

In State v. Wise, 879 S.W.2d 494, 504 (Mo. banc 1994), cert. denied, 513 U.S. 1093, 115 S.Ct. 757, 130 L.Ed.2d 656 (1995), the Missouri Supreme Court held that an overnight guest has a legitimate expectation of privacy in her host’s home and, thus, has standing to assert Fourth Amendment violations. Here, Ms. Moore was an overnight guest in Ms. Page’s apartment. She, therefore, had a reasonable expectation of privacy in the apartment. Ms. Moore also had authority to consent to the entry of the police officers into the apartment. See Clark, 234 F.Supp.2d at 477 (overnight guest had a reasonable expectation of privacy in searched hotel room and had authority to consent to search of hotel room).

The next issue is whether the officers lawfully searched the back bedroom once they entered the apartment. An entry into and search of a home without a warrant are presumptively unreasonable under the Fourth Amendment unless the police action falls within certain carefully delineated exceptions. State v. Mahsman, 157 S.W.3d 245, 249 (Mo.App. E.D.2004); State v. Kimberley, 103 S.W.3d 850, 856 (Mo.App. W.D.2003)(quoting State v. Varvil, 686 S.W.2d 507, 512 (Mo.App. E.D.1985)). One exception involves the existence of exigent circumstances. Id. Exigent circumstances exist if the time needed to obtain a warrant would endanger life, allow the suspect to escape, or risk destruction of evidence. Mahsman, 157 S.W.3d at 249; Kimberley, 103 S.W.3d at 856 (quoting State v. Wright, 30 S.W.3d 906, 910 (Mo.App. E.D.2000)). In determining whether circumstances are exigent, the following factors are relevant:

(1) the gravity of the offense; (2) reasonable belief by the police the suspect is armed; (3) more than minimal probable cause to believe the suspect committed the crime; (4) strong reason to believe the suspect is in the premises in question; (5) likelihood of escape if prompt action is not taken; and (6) the entry is made peaceably.

Kimberley, 103 S.W.3d at 856 (quoting State v. McCullum, 63 S.W.3d 242, 256 (Mo.App. S.D.2001)).

In this case, the tactical response team of the Kansas City, Missouri, Police Department was dispatched to the apartment building after four officers in a patrol car were fired upon with an assault rifle. Two of the officers were shot, one in the head and one in the neck. As discussed, the officers lawfully entered the apartment where Mr. Hill was ultimately found with the consent of Ms. Moore. Ms. Moore then told the officers that the only people in the apartment were herself, the young man in the living room, and the tenant and her children, who were in the first bedroom, implicitly directing the officers to the bedroom. She “emphatically” denied that anyone else was in the apartment. As the officers moved to the first bedroom to ask the tenant’s permission to search the apartment, they saw movement in the back bedroom, which was supposed to bé unoccupied based on Ms. Moore’s statements. Concerned for their own safety and for the safety of the occupants of the apartment, the officers moved to the back bedroom where they found Mr. Hill and Mr. Vaughn and their weapons. Given that the shooting suspect was at large and armed with an assault rifle and Ms. Moore’s statement that no one was in the back bedroom, the officers’ belief that the safety of everyone in the apartment was in jeopardy was reasonable. These facts constituted exigent circumstances justifying the officers’ war-rantless entry into the back bedroom of the apartment, and the seizure of the weapons found in the back bedroom was proper.

Ms. Page’s testimony would not have provided Mr. Hill with á viable defense. The motion court did not clearly err in denying this claim of ineffective assistance of counsel. Point two is denied.

B. Submission of Lesser Included Offense Instruction

In point three, Mr. Hill alleges that counsel was ineffective in failing to request the submission of instructions on the lesser included offenses of assault in the second degree and assault of a law enforcement officer in the second degree. Initially, the State asserts that Mr. Hill waived his claim regarding submission of second-degree assault. In his motion for postconviction relief, Mr. Hill alleged that counsel was ineffective for failing to request instructions for the lesser included offenses of assault of a law enforcement officer in the second degree and assault of a law enforcement officer in the third degree. Mr. Hill did not allege that counsel was ineffective for failing to request an instruction for assault in the second degree. Under Rule 29.15, a movant waives all claims that are not raised in a timely filed pleading. Rule 29.15(d); Barnett v. State, 103 S.W.3d 765, 773 (Mo. banc 2003), cert. denied, 540 U.S. 862, 124 S.Ct. 172, 157 L.Ed.2d 114 (2003). Mr. Hill failed to preserve the claim regarding submission of assault in the second degree by not raising it in his postconviction relief motion. The claim is, therefore, procedurally barred. Barnett, 103 S.W.3d at 773. Mr. Hill’s claim regarding submission of assault of a law enforcement officer in the second degree, however, is reviewable.

A trial court is not required to instruct on a lesser included offense unless the jury has a basis to (1) acquit of the offense charged, and (2) convict of the lesser offense. § 556.046.2, RSMo 2000; State v. Pond, 131 S.W.3d 792, 793 (Mo. banc 2004).

In order for there to be a basis for an acquittal of the greater offense, there must be some evidence that an essential element of the greater offense is lacking and the element that is lacking must be the basis for acquittal of the greater offense and the conviction of the lesser.

Pond, 131 S.W.3d at 794 (quoting State v. Barnard, 972 S.W.2d 462, 466 (Mo.App. W.D.1998)). Section 556.046.2 requires only a basis for the jury to acquit on the greater offense; it does not require the defendant to produce affirmative evidence as to the lack of an essential element of the greater offense. Id.

A person commits the crime of assault of a law enforcement officer in the first degree if he “attempts to kill or knowingly causes or attempts to cause serious physical injury to a law enforcement officer.” § 565.081.1, RSMo 2000. “Serious physical injury” is “physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.” § 565.002(6), RSMo 2000. A person commits that crime of assault of a law enforcement officer in the second degree if he “knowingly causes or attempts to cause physical injury to a law enforcement officer by means of a deadly weapon or dangerous instrument.” § 565.082.1(1), RSMo 2000.

Mr. Hill was not entitled to an evidentiary hearing on this claim because he failed to allege facts in his Rule 29.15 motion warranting relief. Specifically, Mr. Hill failed to plead facts that would have provided a basis for acquittal of first-degree assault of a law enforcement officer. In his motion, Mr. Hill alleged the following facts in support of this claim:

At trial the State presented evidence that Mr. Hill and friends were shooting guns on New Years Eve, 1999, when they saw a police car [drive] by. According to one of the friends, Mr. Hill said that if the police rode back by again, he was going to shoot them. In the police car were four officers, Officer Colvin, who was driving, and Officers Walker, White, and Bradley. When the patrol car passed by again, Mr. Hill fired at the car, saying afterward, “I think I hit them.” Officer Walker was shot in the head and Officer Colvin was shot in the neck.

He concluded that, based on the evidence, the jury could have found that he did not intend to kill or cause serious physical injury but only intended to cause physical injury. The facts alleged by Mr. Hill would not have supported an acquittal of assault of a law enforcement officer in the first degree. They did not support an inference that Mr. Hill only intended to cause physical injury as opposed to death or serious physical injury. Rather, the facts alleged by Mr. Hill established that he intended to kill or cause serious physical injury. He fired his assault rifle thirty times into a police vehicle in which four police officers were riding. Shooting several times into an occupied car shows intent to cause death or serious physical injury. State v. Theus, 967 S.W.2d 234, 239 (Mo.App. W.D.1998)(quoting State v. Smith, 747 S.W.2d 678, 680 (Mo.App. S.D.1988)); State v. Jones, 921 S.W.2d 28, 35 (Mo.App. W.D.1996). Mr. Hill would not have been entitled to an instruction for the lesser included offense of second-degree assault of a law enforcement officer. Counsel is not deemed ineffective for failing to make a meritless objection. Middleton v. State, 103 S.W.3d 726, 741 (Mo. banc 2003). The motion court did not clearly err in denying this claim of ineffective assistance of counsel without an evi-dentiary hearing. Point three is denied.

Mr. Hill’s convictions and sentences for armed criminal action on Counts 4, 6, and 8 are vacated. His convictions and sentences on Counts 1, 2, 3, 5, and 7 remain unchanged and in effect. The motion court’s denial of Mr. Hill’s Rule 29.15 motion alleging ineffective assistance of counsel is affirmed.

BRECKENRIDGE and SMART, JJ., concur.

      . Because the standard under which this court views the facts is the same as for a direct appeal, the facts of the direct appeal as set out in the unpublished memorandum that accompanied the order affirming the convictions and sentences, State v. Hill, 114 S.W.3d 310 (Mo.App. W.D.2003), are repeated here without quotation marks with only minor stylistic changes. Procedural developments since the direct appeal are also added.


source: Caselaw Access Project

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

license: Public Domain

text:
    STATE of Missouri, ex rel. CURATORS OF the UNIVERSITY OF MISSOURI and Alan M. Luger, M.D., Relators, v. Honorable Kelly J. MOORHOUSE, Respondent.
    No. WD 65644.
    Missouri Court of Appeals, Western District.
    Jan. 17, 2006.

      Charles Henry Stitt, Kansas City, MO, arguing on behalf of appellant.
    D. Bruce Keplinger, Overland Park, KS, arguing on behalf of respondent.
    Before JAMES M. SMART, JR., P.J., HAROLD L. LOWENSTEIN, and THOMAS H. NEWTON, JJ.
   JAMES M. SMART, JR., Presiding Judge.

The Curators of the University of Missouri, as the operators of a hospital located in Columbia, and their employee, Alan M. Luger, M.D., are relators in this proceeding. Relators, collectively referred to as “the University,” seek an order in prohibítion to direct the respondent circuit judge to dismiss the third party claim brought against them in the underlying proceeding in the Jackson County Circuit Court. We issued a preliminary order on July 26, 2005. Having fully considered the matter following briefing and argument, we now make the preliminary order absolute.

Background Facts

The plaintiffs in the underlying action are Will States and his parents. The defendants are two Kansas City pediatric surgeons and their professional corporation, collectively referred to as “the Physicians.” Plaintiffs brought a malpractice action against the Physicians asserting that the Physicians were negligent in their treatment of Will’s congenital intestinal disorder, which was previously treated surgically. The Physicians, after being sued, brought a third-party claim against the University alleging that Will’s previous surgery at the University was conducted improperly, and, in the event that the Physicians were found liable to the plaintiffs, the Physicians would be entitled to indemnity and/or contribution from the University-

After the third-party claim was asserted by the Physicians, the plaintiffs settled with the University, releasing the University from liability for $625,000 in exchange for a release from the suit. The University then filed a motion for summary judgment with the trial court based upon the release granted by the plaintiffs. A substitute judge filling in for Judge Moor-house denied the motion on May 9, 2005, and denied a motion to reconsider on June 7, 2005. This court granted a preliminary writ of prohibition on July 26, 2005. On August 17, 2005, the trial court approved a settlement between the plaintiffs and the Physicians in which the Physicians paid $727,500 in exchange for a complete release of all claims by the plaintiffs. The only claim remaining in this matter is the third party claim of the Physicians against the University. The University now argues that this court should issue an order directing the trial court to dismiss the claim against them.

Writs of Prohibition

An extraordinary writ of prohibition may be granted when it is clear that a trial court is exceeding its jurisdiction. See State ex rel. Mo. Gaming Comm’n v. Kinder, 896 S.W.2d 514, 516 (Mo.App.1995). The primary function of prohibition is to limit judicial activities to those within the bounds of “authority, preventing actions in want or in excess of the court’s jurisdiction.” State ex rel. Lopp v. Munton, 67 S.W.3d 666, 670 (Mo.App.2002). Prohibition is an appropriate remedy where the lower court lacks either personal or subject matter jurisdiction to proceed. Id.; State ex rel. Havlin v. Jamison, 971 S.W.2d 938, 939 (Mo.App.1998). “A circuit court lacking subject matter jurisdiction may take no action other than to dismiss the suit.” State ex rel. Larkin v. Oxenhandler, 159 S.W.3d 417, 420 (Mo.App.2005).

Subject Matter Jurisdiction

The sole issue presented in this case is whether Missouri statutes prohibit a third-party plaintiff (the Physicians) from seeking indemnification or contribution from a third-party defendant (the University) when that third-party defendant has been released by the plaintiff from the original action. Two statutes, sections 537.060 and 538.230.3, govern the release of liability in this case. Section 537.060 provides, in relevant part:

When an agreement by release, covenant not to sue or not to enforce a judgment is given in good faith to one of two or more persons liable in tort for the same injury or wrongful death, such agreement shall not discharge any of the other tort-feasors for the damage unless the terms of the agreement so provide; however such agreement shall reduce the claim by the stipulated amount of the agreement, or in the amount of consideration paid, whichever is greater. The agreement shall discharge the tort-feasor to whom it is given from all liability for contribution or noncontrac-tual indemnity to any other tort-feasor. The term “noncontractual indemnity” as used in this section refers to indemnity between joint tort-feasors culpably negligent, having no legal relationship to each other and does not include indemnity which comes about by reason of contract, or by reason of vicarious liability-

(emphasis added). Section 538.230.3 provides, in relevant part:

Any release, covenant not to sue, or similar agreement entered into by a claimant and a person or entity against which a claim is asserted arising out of the alleged transaction which is the basis for plaintiffs cause of action, whether actually made a party to the action or not, discharges that person or entity from all liability for contribution or indemnity. ...

The legislative intent of such provisions is “to encourage settlements between tort-feasors and injured claimants— with the incentive being a settling tort-feasor can put the incident to rest and will not be subject to a later action for contribution.” See State ex rel. Sharma v. Meyers, 803 S.W.2d 65, 67 (Mo.App.1990). These sections also reiterate the common law, which allowed a defendant to settle with the plaintiff prior to judgment for whatever the parties agreed to and the defendant was absolved of all claims for damages and contribution. Hewlett v. Lattinville, 967 S.W.2d 149, 152 (Mo.App.1998). In Hewlett, this court determined that section 538.230 releases a defendant from liability regardless of whether the settlement was prejudgment or post judgment. Id. at 152-53.

In this case, the settlement agreement between the University and the plaintiffs included a release from liability for the University. Under the plain wording of both sections 537.060 and 538.230.3, the University is no longer liable for contribution to the Physicians. To allow the indemnification suit to go forward would contravene the purposes of these statutes by failing to allow a tort-feasor to “buy their peace by good faith settlement with the claimant.” Lowe v. Norfolk & W. Ry. Co., 753 S.W.2d 891, 892 (Mo. banc 1988).

In Lowe, the plaintiffs, employees of Norfolk and Western, a railway company, filed suit against the railway company and three other companies involved with the derailment, spillage, and cleanup of a toxic chemical from a railway car. Id. at 892-93. The suit was originally filed in Illinois. Id. at 893. On the courthouse steps, all of the defendants except the railway company settled. Id. At trial, the jury returned verdicts in favor of the plaintiffs. Id. On appeal, the appellate court reversed the judgment for improper forum. Id. Suit was refiled in the Circuit Court of the City of St. Louis against the railway company. Id. The railway company filed third-party claims against the defendants who had previously settled. Id. After a hearing, the trial court dismissed the third-party claims, “concluding that the plaintiffs had entered into good faith settlements with the third-party defendants and that the settlements were effective to discharge these defendants from all liability.” Id. The Missouri Supreme Court agreed. Id.

The Physicians seek to distinguish Lowe from this case on the basis that in this case the University was never formally named a defendant in the lawsuit. We fail to see how, in the light of both logic and the plain wording of the statute, that fact should make any difference. The statute speaks in terms of “liability for contribution or noncontractual indemnity to any other tort-feasor.” § 537.060. The statute does not concern itself with whether an alleged tortfeaser has been formally brought into an existing lawsuit. The statute does not even require an existing lawsuit at the time of any settlement negotiation.

The Physicians also suggest that the University’s interpretation of the statute is somehow unfair. The Physicians do not raise a constitutional issue; just a fairness issue. When the statutory language is clear and there is no ambiguity, any complaints about fairness are for the legislature, not the courts. The Physicians also seem to overlook the fact that, had the case against them been tried, they, as the non-settling tortfeasors, would receive the benefit of the $625,000 settlement as credit against any amount adjudged against them.

Because sections 587.060 and 538.230.3 provide release of any liability for claims of non-contractual indemnity and contribution as to an alleged co-tortfeasor when an agreement is reached with the plaintiff, the respondent court lacked jurisdiction over the indemnity action and erred in refusing to dismiss the action. Prohibition is an appropriate remedy.

Conclusion

For the foregoing reasons, the preliminary writ of prohibition is made absolute.

LOWENSTEIN and NEWTON, JJ., concur.

      . All statutory references are to the Revised Statutes of Missouri, 2000, unless otherwise indicated.

      . Section 538.230 was repealed by H.B. 393, 93rd Gen. Assem., 1st Reg. Sess. (Mo.2005), but the law did not take effect until August 28, 2005. As the effective date was after this action was filed, section 538.230 is still applicable for this action.

      . Also, under section 538.230 as it existed at the time of the settlement, the Physicians could have asked the jury to formally allocate fault to the University (although no judgment could have been entered against the University). See § 538.230.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Ronnie M. SHOECRAFT, Appellant.
    No. WD 64438.
    Missouri Court of Appeals, Western District.
    Jan. 17, 2006.
    Virgil Dean Rodgers, II, Tipton, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels, Asst. Atty. Gen., joins on the briefs, Jefferson City, MO, for Respondent.

      Before ROBERT G. ULRICH, P.J., PATRICIA A. BRECKENRIDGE, and JAMES M. SMART, JR., JJ.
   Order

PER CURIAM.

Ronnie M. Shoeeraft appeals his conviction for driving while intoxicated. Having carefully considered the contentions on appeal, we find no grounds for reversing the decision. Publication of a formal opinion would not serve jurisprudential purposes or add to understanding of existing law. The judgment is affirmed. Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Nicholas T. DOMINGUE, Appellant.
    No. WD 64082.
    Missouri Court of Appeals, Western District.
    Jan. 17, 2006.
    Daniel L. Viets, Columbia, MO, for Appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
    Before HAROLD L. LOWENSTEIN, P.J., JOSEPH M. ELLIS, and THOMAS H. NEWTON, JJ.
   ORDER

PER CURIAM.

Mr. Nicholas T. Domingue appeals his convictions for possession of drugs in accordance with sections 195.211 and 195.202, and possession of drug paraphernalia with intent to use in accordance with section 195.233.

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


text:
    Richard BENEDICT, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64796.
    Missouri Court of Appeals, Western District.
    Jan. 17, 2006.
    Susan Lynn Hogan, Appellate Defender Office, Kansas City, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun Mackelprang and Dora A. Fichter, Office of Attorney General, Jefferson City, for Respondent.
    Before PAUL M. SPINDEN, Presiding Judge, VICTOR C. HOWARD, Judge, and RONALD R. HOLLIGER, Judge.
   ORDER

Richard Benedict appeals the circuit court’s judgment denying his Rule 29.15 motion for postconviction relief after an evidentiary hearing. We affirm. Rule 84.16(b).


author: HAROLD L. LOWENSTEIN, Judge.

text:
    Patricia SARTOR, Respondent, v. MEDICAP PHARMACY, Appellant.
    No. WD 64843.
    Missouri Court of Appeals, Western District.
    Jan. 17, 2006.

      Richard J. Fitzgerald, Esq., St. Louis, MO, for appellant.
    Roger G. Brown, Ésq., Jefferson City, MO, George E. Fitzsimmons, Esq., Co-Counsel, St. Louis, MO, for respondent.
    Before SMART, P.J., LOWENSTEIN and HARDWICK, JJ.
   HAROLD L. LOWENSTEIN, Judge.

INTRODUCTION

Pat Sartor (Claimant), a pharmacist, filed a claim for workers’ compensation for permanent total disability for physical disabilities suffered while she was an employee of Medicap Pharmacy (Medicap). The facts concerning the accident were submitted pursuant to a joint stipulation. This appeal revolves around two issues: (1) did the injuries arise out of, and in the course of, the employment, and (2) the nature and extent of those injuries. The Labor and Industrial Relations Commission (Commission) affirmed the findings, conclusion of total disability, and award rendered by the Administrative Law Judge. Similar claims, based on the same underlying facts and with the same results, were obtained in the cases of three other employees (Cross (WD64846), Shirts (WD64844), and Branson (WD64845)). Hand down of those cases is concurrent with this appeal.

Facts

In late March 1998, a car crashed into Medicap’s building resulting in a large amount of water and other contaminants soaking the pharmacy’s carpet. On April 8, Medicap had a mold and mildew retardant, Ultra Fresh (UF), applied to the carpet while the employees were present. Claimant immediately experienced wheezing, burning eyes, shortness of breath, and general respiratory problems. Several days later, Claimant broke out with hives. Within thirty days Claimant additionally suffered from a skin rash, fatigue, headache, nausea, eating disorder, inability to concentrate, and diarrhea. The carpet was removed at the end of April, but Claimant then discovered blood in her urine, and experienced dizziness and exhaustion. She saw her doctor in early May and was admitted to the University of Missouri Hospital. for examination. In early May, after suffering dry heaves, she called Medicap’s home office to say she could no longer work at the pharmacy because of all of her symptoms.

During the summer of 1998, Claimant worked for no more than eight hours a month at various other places, including the attorney general’s office. She quit all employments because of exhaustion and inability to concentrate. In July 2008, her husband, a pharmacist, testified to her inability to concentrate after the exposure, and that would preclude him from hiring her to work in a pharmacy. He stated that her symptoms had gotten worse and that she was too fatigued to perform many of her household duties.

Claimant’s evidence was as follows: Treating physicians Schneider and Cay-wood testified that the active ingredients and, particularly, a substance called tribu-tylin contained in UF caused the symptoms exhibited by Claimant, and those symptoms (difficulty in breathing, fatigue, and memory loss) were a result of the exposure. They testified the symptoms and problems were permanent and rendered her permanently disabled. Examining physician Hyers opined Claimant’s respiratory and memory problems were a result of the toxic components in UF. He, too, said she would be lucky to “go through the activities of daily living.” Examining doctor Johnstone, a neuropsychol-ogist, testified Claimant had a cognitive disorder with mood and personality changes due to the toxin exposure. John-stone said these disorders had lasted for four years, and he did not expect there would be any improvement in the future. Toxicologists Martinez and Lipsey said UF was dangerous and highly toxic, should not have been used in a place that had little or no ventilation, and the immediate symptoms shown were consistent with the exposure to UF. Lipsey opined that the symptoms immediately exhibited by Claimant, the other three claimants, and Vickie Olive, were consistent with exposure to “high levels of toxic molds.” Lipsey stated that the symptoms of the four employees were consistent with their exposure to high levels of organic tin contained in UF. Vickie Olive, an environmental specialist with the state, had been in the pharmacy just after the carpet had been removed. Olive had handled a sample of the carpet and immediately experienced headaches, diarrhea, nausea, hives, and swelling. A vocational expert, Swear-ingen, deemed Claimant unemployable and permanently disabled.

Medicap’s evidence is summarized as follows: Dr. Long, a toxicologist, said the carpet was not in the pharmacy long enough to provide the toxicity to cause the problems Claimant asserted. He disagreed with Dr. Lipsey’s opinion and felt Claimant was not disabled due to the exposure to UF on Medicap’s premises. Dr. Oliveri interviewed Claimant, reviewed her medical records, and conducted several neuropsychological tests. He found no residual brain dysfunction and determined Claimant suffered from clinical depression. Ms. Karen Kane, a rehabilitation counsel- or, determined that Claimant was capable of procuring full-time gainful employment. Dr. Cantrell concluded that Claimant’s problems stemmed from pre-existing depression and the drugs taken for that condition. Medicap introduced a test report done on samples of the carpet that had been sprayed. It showed no detectible limits of tributylin.

Temporary benefits were denied. However, at the hearing for permanent benefits, the administrative law judge found Claimant’s experts more credible than those of Medicap. The award of permanent total disability resulting from an accident arising out of, and in the course of employment, was based in part on the finding that Claimant, the other three employees, and the “outside party” (Olive) suffered the same symptoms during the time just following the spraying the pharmacy’s rug. The Commission was also persuaded by the fact that Claimant’s experts included treating physicians. A majority of the Commission issued a final award affirming the ALJ’s decision.

Medicap raises three points on appeal. The first point asserts there was not the quantum of substantial evidence to support the award, and that the award was not substantial evidence under Section 287.495(4), RSMo.2000, to show a causal connection between the alleged “complaints” and the exposure to UF in April 1998. The second point attacks the sufficiency of the evidence to support a conclusion that claimant employee was permanently and totally disabled. Finally, it is advanced that the Commission’s award as to future medical treatment was not definite as to the medical conditions related to the injury.

STANDARD OF REVIEW

Review is governed by Hampton v. Big Boy Steel Erection, 121 S.W.3d 220 (Mo. banc 2003), where the Court held the Commission’s award is to be examined upon the whole record and not to be set aside if not contrary to the overwhelming weight of the evidence and is supported by competent and substantial evidence. Id. at 222-23. Even if there is evidence that would support a contrary finding, this court should not substitute its opinion of the facts for that of the Commission. K & D Auto Body, Inc. v. Div. of Employment Sec., 171 S.W.3d 100, 103 (Mo.App.2005). Questions of medical causation of an injury are issues of fact for the Commission which is the sole judge of credibility as well as the weight of the testimony. George v. City of St. Louis, 162 S.W.3d 26, 30 (Mo.App.2005).

Discussion of Points on Appeal

Although not denominated as a point, but running through Medicap’s brief is an invitation to the court to reverse the Commission’s final award based on the prior decision of the ALJ in denying benefits following the hearing for temporary benefits. Suffice it to say, the findings and ruling of the Commission on the permanent award contain the answer to this invitation: temporary awards are not final and can be modified from time to time, and the legislature contemplated that an award on a final hearing may differ from that of a temporary hearing. Korte v. Fry-Wagner Moving & Storage Co., 922 S.W.2d 395, 397-98 (Mo.App.1996); Welch v. Eastwind Care Ctr., 890 S.W.2d 395, 398 (Mo.App.1995).

Medicap’s first point asserts that the decision of medical causation of Claimant’s injuries is contrary to the overwhelming weight of the evidence. Medi-cap states Claimant’s “main expert, Dr. Richard Lipsey’s, testimony is simply not credible and based on speculation and conjecture”; that its witnesses were more credible; and that Claimant’s experts were not given certain information from Medi-cap’s experts. What Medicap asks this court to do is to judge credibility and determine the weight of expert medical evidence. The eastern district in Uhlir v. Farmer explicitly said, “We cannot reweigh, as Appellant asks us to do, the weight to be given to the medical opinions presented to the Commission.” 94 S.W.3d 441, 445 (Mo.App.2003) (overruled on other grounds by Hampton, 121 S.W.3d 220). The southern district in Aldridge v. Southern Missouri Gas Co., 131 S.W.3d 876, 882 (Mo.App.2004), also declined to reweigh evidence. The court said that when deciding which of the two medical theories should be accepted, the determination is for the Commission, and the weight afforded a medical expert’s opinion lies within its sole discretion. Id. In this case, the Commission determined the Claimant’s evidence on causation to be the most credible. There was substantial evidence supporting the Commission’s conclusion. Point denied.

The second point is similar to the first point in that it couches a sufficiency of the evidence argument based on Medi-cap’s assertion that Claimant’s experts merely speculated on whether she was totally disabled. Medicap proclaims the testimony of Dr. Johnstone was “not persuasive,” and that “Mr. Swearingen’s testimony is based on speculation and conjecture.” This point is denied.

The final point seems to attack the final award as not containing sufficient findings as to Claimant’s physical infirmities that will require future medical treatment. Medicap is correct that the burden is on the claimant to show a reasonable probability that he or she requires further medical treatment because of an injury suffered at work. However, evidence as to the specific nature of such treatment is not required where the Commission has determined the injury was compensable. Id. at 883. This point is denied.

The judgment of the Commission is affirmed.

All concur.


text:
    Janet SHIRTS, Respondent v. MEDICAP PHARMACY, Appellant.
    No. WD 64844.
    Missouri Court of Appeals, Western District.
    Jan. 17, 2006.
    Richard J. Fitzgerald, St. Louis, MO, for appellant.
    Roger G. Brown, St. Louis, MO, for respondent.
    Before SMART, P.J., LOWENSTEIN and HARDWICK, JJ.
   ORDER

PER CURIAM.

Employer and Insurer appeal from an award of workers’ compensation declaring the Claimant to be totally and permanently disabled. Appellant contends there was insufficient evidence to support the award because Claimant’s evidence was speculative and that there was a lack of specificity in the award as to future medical payments. Affirmed. Rule 84.16(b).


text:
    Kim BRANSON, Respondent, v. MEDICAP PHARMACY, Appellant.
    No. WD 64845.
    Missouri Court of Appeals, Western District.
    Jan. 17, 2006.
    Richard J. Fitzgerald, St. Louis, MO, Attorney for appellant.
    Roger G. Brown, Jefferson City, MO, George E. Fitzsimmons, Co-Counsel, St. Louis, MO, for respondent.
    Before SMART, P.J., LOWENSTEIN and HARDWICK, JJ.
   ORDER

PER CURIAM.

Employer and Insurer appeal from an award of workers’ compensation declaring the Claimant to be totally and permanently disabled. Appellant contends there was insufficient evidence to support the award because Claimant’s evidence was speculative and there was a lack of specificity in the award as to future medical payments. Affirmed. Rule 84.16(b).


text:
    Bethany CROSS, Respondent, v. MEDICAP PHARMACY, Appellant.
    No. WD 64846.
    Missouri Court of Appeals, Western District.
    Jan. 17, 2006.
    Richard J. Fitzgerald, St. Louis, MO, for appellant.
    Roger G. Brown, Jefferson City, MO, George E. Fitzsimmons, Co-Counsel, St. Louis, MO, for respondent.
    Before SMART, P.J., LOWENSTEIN and HARDWICK, JJ.
   ORDER

PER CURIAM.

Employer-insurer appeals the Industrial and Labor Relations Commission’s final award of a thirty-five percent permanent partial disability to the respondent. Two points were raised: (1) lack of substantial competent evidence of a causal relationship of injuries to work, and (2) lack of specificity as to award calling for continuing medical treatment. Affirmed. Rule 84.16(b).


text:
    Andy GILLETTE, Appellant, v. STATE of Missouri, Respondent.
    No. WD 65529.
    Missouri Court of Appeals, Western District.
    Jan. 17, 2006.
    Nancy A. McKerrow, Assistant Public Defender, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Jayne T. Woods, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before SPINDEN, P.J., and HOWARD and HOLLIGER, JJ.
   Order

PER CURIAM.

Andy Gillette moved for post-conviction relief under Rule 24.035. Gillette alleged that his plea counsel was ineffective for promising Gillette that if he took the State’s offer of a ten-year sentence, he would also be sentenced to long-term drug treatment, which did not occur. After an evidentiary hearing, the motion court denied Gillette’s motion. Gillette argues on appeal that the motion court’s findings and conclusions that plea counsel was not ineffective were clearly erroneous. Judgment affirmed. Rule 84.16(b).


text:
    Frank SHIFKOWSKI, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26713.
    Missouri Court of Appeals, Southern District, Division One.
    Jan. 19, 2006.
    Frank Shifkowski, Charleston, MO, pro se.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, for Respondent.
    Before RAHMEYER, P.J., PARRISH, J., and BARNEY, J.
   PER CURIAM.

Frank Shifkowski (“Appellant”) appeals the judgment overruling his “Jaynes/Motion to Reopen PCR Case to Consider, Inter Aia, Abandonment of Counsel.” We previously affirmed his conviction for first-degree statutory sodomy, State v. Shifkowski 57 S.W.3d 309 (Mo.App. S.D.2001), and affirmed the denial of his Rule 29.15 motion for post-conviction relief, Shifkowski v. State, 136 S.W.3d 588 (Mo.App. S.D.2004). On November 1, 2004, Appellant filed a motion to reopen his post-conviction case alleging abandonment and ineffective assistance by post-conviction counsel. His motion was overruled and this appeal follows.

Appellant claims first that he was abandoned by post-conviction counsel when that counsel failed to notify him of counsel’s intent not to raise and pursue certain claims and questions in his direct appeal. Despite the label given to his pleading, Appellant is merely claiming ineffective assistance of post-conviction counsel. “Claims of ineffective assistance of post-conviction counsel are categorically unreviewable.... ” State v. Lyons, 129 S.W.3d 873, 874 (Mo. banc 2004).

Appellant further claims his trial counsel was ineffective for a failure to advise Appellant whether to accept an offered plea bargain, failing to object to a coerced confession, and miscellaneous other trial errors. These errors were, or could have been brought, in Appellant’s initial Rule 29.15 motion. Appellant’s motion to reopen his post-conviction proceedings was an attempt to file a successive Rule 29.15 motion, which is expressly prohibited. “The circuit court shall not entertain successive motions.” Rule 29.15((); Smith v. State, 21 S.W.3d 830, 831 (Mo. banc 2000); Vicory v. State, 117 S.W.3d 158, 160-161 (Mo.App. S.D.2003).

Appellant filed his motion to reopen his post-conviction proceedings sixteen months after the motion court entered its judgment and four months after this Court issued its mandate affirming that judgment. We note the trial court did not have jurisdiction to consider a motion filed beyond the thirty-day deadline contained in Rule 75.01 absent a narrow exception for a claim of abandonment. Cook v. State, 156 S.W.3d 418, 420 (Mo.App. E.D.2005). Although Appellant’s motion is entitled “Motion to Reopen PCR Case to Consider, Inter Alia, Abandonment of Counsel,” a review of the motion and this subsequent appeal demonstrates Appellant was simply filing a successive Rule 29.15 motion claiming ineffective assistance of trial counsel and challenging the actions of post-conviction counsel. Neither contention has merit; the judgment is affirmed.

      . All rule references are to Missouri Court Rules (2005), unless otherwise specified.

      . We note that Appellant’s allegedly coerced confession was dealt with in depth in the direct appeal.


author: ROBERT G. DOWD, JR., Judge.

text:
    STATE of Missouri, Respondent, v. Adrain D. SMITH, Appellant.
    No. ED 85631.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 24, 2006.

      Ellen H. Flottman, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Jayne T. Woods, Asst. Atty. General, Jefferson City, MO, for Respondent.
   ROBERT G. DOWD, JR., Judge.

Defendant, Adrain Smith, appeals from the judgment upon his conviction by a jury of class D felony stealing, third offense pursuant to Section 570.040, RSMo Cum. Supp.2004, for which Defendant was sentenced, as a prior and persistent offender under Section 558.016, to six years’ imprisonment. On appeal, Defendant contends the trial court abused its discretion in overruling Defendant’s motion for a new trial based on newly available evidence. In his reply brief, responding to the State’s argument in its brief, and in his “Expedited Motion to Remand for Resentencing,” Defendant also asserts that based on the recent Missouri Supreme Court case of Woods v. State, 176 S.W.3d 711 (Mo. banc 2005), that the trial court plainly erred and he was improperly sentenced under Section 570.040. We reverse and remand for resentencing.

Defendant was charged, as a prior and persistent offender, on March 27, 2003 under Section 570.040 with class D felony stealing, third offense. . The information charged that on February 1, 1996, Defendant had pleaded guilty of the offense of stealing for events occurring on October 19, 1995, and that on February 1, 1996, Defendant pleaded guilty of the offense of stealing for an event occurring on October 20, 1995. At trial, the trial court found beyond a reasonable doubt that Defendant was a prior and persistent offender and should be charged with a class D felony pursuant to Section 570.040. ■

The evidence in the light most favorable to the verdict showed that Defendant was apprehended at the Dillard’s department store in Mid-Rivers Mall in St. Peters, Missouri. Loss prevention officer, Rau-chel Steele, observed Defendant on closed-circuit television shopping in a suspicious manner. Steele watched Defendant enter a dressing room with six items and a shopping bag, and leave the dressing room with only two items. Defendant took the two items to the cash register and paid for them. Steele notified Sergeant William Bowman, a St. Peter’s police officer who was working security for Dillard’s that evening, that she saw Defendant acting in a suspicious manner. Sergeant Bowman responded and walked in the dressing room area to see if the other items Defendant brought in were left in the dressing room. Defendant watched Sergeant Bowman as he entered the dressing room. Sergeant Bowman did not find anything left in the dressing room.

After Sergeant Bowman left the dressing room, Defendant began to walk towards an exterior exit of the store. As Defendant walked, Steele noticed that he was walking bow-legged, which he did not do prior to entering the dressing room. Sergeant Bowman observed that Defendant was wearing three pairs of jeans.

Sergeant Bowman approached Defendant and said “Excuse me, sir, can I talk to you for a second?” To which Defendant replied by blurting out, “You caught me red-handed.” Sergeant Bowman asked Defendant what he meant by the statement and Defendant admitted that he had stolen several items, including the two pairs of jeans he was wearing and the rest in one of the bags he was carrying. Defendant never offered any receipts for the items he admitted to stealing. Sergeant Bowman placed Defendant in handcuffs and escorted him to the security office. While Sergeant Bowman was on the phone, Defendant spontaneously volunteered that he was a professional thief and that he stole for a living.

Except for the receipt for the two items purchased, Sergeant Bowman did not find any receipts in the bags, nor did Sergeant Bowman find any receipts in the jeans themselves. Defendant was apprehended with a total of seven pairs of stolen jeans in his possession and none of them had a proof of purchase label. All seven pairs of jeans were identified as Dillard’s merchandise. Dillard’s always attaches a proof of purchase label to items purchased to ensure that if someone returns merchandise that it is the same merchandise that was purchased fem Dillard’s. There were proof of purchase labels on the two items that Defendant purchased.

At the trial, Defendant testified that he intended to exchange the pants for the proper size and to buy an outfit from Dillard’s. Defendant testified that he was carrying out his “hustle” of finding jeans on sale or discount from the outlet malls like Warrenton, J.C. Penney Outlet, Dillard’s, and Famous Barr, and then reselling them at higher prices to people in his neighborhood. Defendant acknowledged that when he arrived at the mall, he was wearing only one pair of pants, but claimed that he had put on two more pair that he wished to exchange at Famous Barr prior to entering Dillard’s. Defendant testified that he did not have a receipt for any of the pants he was wearing. Defendant never told anyone at the police station that he had any receipts for the jeans he was carrying.

At the close of all the evidence, the jury found Defendant guilty. Thereafter, Defendant filed a motion for new trial alleging four trial court errors, including a Batson challenge to a juror strike, failure to suppress Defendant’s statements, a violation of the best evidence rule, and insufficient evidence to submit the case to the jury. At the sentencing hearing, but prior to sentencing, the trial court took up Defendant’s motion for new trial. When arguing the motion for new trial, Defendant orally amended the motion to include a claim of “newly available” evidence. Defendant asserted that he had found the receipts for four of the jeans he was convicted of stealing. The trial court denied Defendant’s motion for new trial and found that the “newly available” evidence would not likely produce a different result at trial. Thereafter, on December 16, 2004, the trial court sentenced Defendant to six years’ imprisonment. This appeal follows.

In his point on appeal, Defendant contends the trial court abused its discretion in overruling Defendant’s motion for new trial. Defendant asserts he presented newly available evidence, the receipts for the allegedly stolen merchandise, at the hearing on his motion for new trial, and that evidence established his actual innocence of the charged offense. We disagree.

In determining our standard of review, we first note that although Defendant raised the claim of newly available evidence during the hearing on his motion for new trial, he did not raise it in his motion. A claim of error not raised in a motion for new trial is not preserved for appellate review. State v. Stephens, 88 S.W.3d 876, 880 (Mo.App. W.D.2002). Thus, our review of Defendant’s claim is for plain error only under Rule 30.20. Id.

The question whether to grant a motion for new trial is left to the sound discretion of the trial court. Id. at 881. The trial court abuses its discretion when its ruling is clearly against the logic of the existing circumstances and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration. Id. Thus, in the context of plain error review, we will reverse the trial court’s denial of a defendant’s motion for new trial only if we determine that its ruling was an obvious and clear abuse of discretion, which affected a substantial right of the defendant and resulted in a manifest injustice or miscarriage of justice. Id.

New trials based on newly discovered evidence are disfavored. State v. Reed, 971 S.W.2d 344, 349 (Mo.App. W.D.1998). To warrant a new trial based on newly discovered evidence, the defendant must show that:

(1) the evidence has come to the knowledge of the defendant since the trial; (2) it was not owing to want of due diligence that the evidence was not discovered sooner; (3) the evidence is so material that it would probably produce a different result on a new trial; and (4) the evidence is not cumulative only or merely impeaching the credibility of a witness.

Id. (citing State v. Whitfield, 939 S.W.2d 361, 367 (Mo. banc 1997)).

However, “newly available” evidence is not synonymous with “newly discovered” evidence for purpose of a new trial motion. Reed, 971 S.W.2d at 349; State v. Hamilton, 732 S.W.2d 553, 556 (Mo.App. E.D.1987). Newly available evidence is evidence that existed at the time of the trial and which the defendant was aware existed. Id. Newly discovered evidence, in contrast, is evidence that the defendant was not aware existed until after the conclusion of the trial. Id.

Here, the receipts constitute newly available evidence. Defendant was always aware of -the existence of the receipts. Defendant’s alleged inability to locate the receipts during the trial made them unavailable evidence. Defendant’s inability to locate the receipts during the trial does not convert the receipts into newly discovered evidence. Because the receipts do not constitute newly discovered evidence, Defendant failed to establish entitlement to a new trial.

Furthermore, the two receipts indicate four pairs of jeans. Defendant was convicted of stealing seven pairs of jeans. Therefore, even if the receipts proved Defendant purchased the four pairs of jeans, the receipts would not exonerate him of stealing the other three pairs. This is not .an extraordinary case requiring remand under plain error because the evidence would not have completely exonerated Defendant of the crime he was charged. See State v. Gray, 24 S.W.3d 204, 209 (Mo.App. W.D.2000). Defendant was not entitled to a new trial based on his newly available evidence. We find no manifest injustice or miscarriage of justice and there was no clear or obvious abuse of discretion in denying his motion - for new trial. Defendant’s point is denied.

Defendant also contends the trial court plainly erred in sentencing Defendant on his conviction of felony stealing, third offense pursuant to Section 570.040. Defendant maintains he had not previously pleaded guilty or been found guilty on two or more “separate occasions” of a stealing-related offense because his prior guilty pleas occurred on the same day and the statute is ambiguous as to whether the pleas must be on separate occasions or the crimes must have occurred on separate occasions. We agree and grant Defendant’s motion to remand for resentencing that was taken with the case.

Defendant was charged under Section 570.040 for felony stealing, third offense. The underlying crime of stealing is a class A misdemeanor unless another penalty is prescribed. Section 570.030. Section 570.040 provides, in pertinent part:

1. Every person who has previously pled guilty or been found guilty on two separate occasions of a stealing-related offense where such offenses occurred within ten years of the date of occurrence of the present offense and where the person received and served a sentence of ten days or more on such previous offense and who subsequently pleads guilty or is found guilty of a stealing-related offense is guilty of a class D felony and shall be punished accordingly-

(Emphasis added.)

Section 570.040 was recently discussed by the Missouri Supreme Court in Woods. In light of the court’s decision in Woods, we find the trial court erred in sentencing Defendant under Section 570.040. In Woods, the defendant was convicted of stealing clothing from a retailer and the State charged him under Section 570.040. Woods, 176 S.W.3d at 712. To prove the prior crimes, the State established two previous guilty pleas entered on the same date, in the same court, with the same counsel, and the same judge. Id. The defendant" pleaded guilty and the trial court sentenced him for a class C felony. Id. Thereafter, the defendant challenged his conviction and sentence pursuant to Rule 24.035, claiming his sentence exceeded the maximum sentence prescribed by law because his two guilty pleas did not occur on separate occasions. Id.

In Woods, the Supreme Court found that Section 570.040 “requires that the pleas of guilty to have occurred on two separate occasions — not that the crimes have occurred on two separate occasions.” Id. The court further stated that “separate occasion” language contained in Section 570.040 was at least ambiguous as to “whether it intends to require the pleas to be on separate occasions or the crimes to be on separate occasions” and gave the defendant the benefit of a lesser penalty under the rule of lenity. Id. at 712-13. The Woods court reversed the judgment and remanded the case for resentencing. Id. at 713.

Here, Defendant entered two guilty pleas on the same day, in the same court, and with the same counsel. The State relied on these two pleas to charge Defendant under Section 570.040. In light of the decision in Woods, Defendant was improperly charged and sentenced under Section 570.040.

We reverse Defendant’s judgment and remand the case for resentencing in accordance with this opinion.

NANNETTE A. BAKER, P.J. and SHERRI B. SULLIVAN, J„ concur.

      . All further statutory references are to RSMo Cum.Supp.2004 unless otherwise indicated.

        . Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

      . Defendant’s request for this court to enunciate an "unable to locate” or "unable .to produce" exception to the definition of newly discovered evidence is unpersuasive.

      . There was also a question as to whether the inventory numbers matched all four pairs of jeans. In fact, the inventory numbers only matched two of the pairs of stolen jeans.

      . The authorized term of imprisonment for a class A misdemeanor is a term for to exceed one year. Section 558.011.

      . The defendant in Woods was sentenced under the previous version of Section 570.040 that provided enhancement to a class C felony.

      .The rule of lenity gives a criminal defendant the benefit of a lesser penalty where there is an ambiguity in the statute allowing for more than one interpretation. State v. Rowe, 63 S.W.3d 647, 650 (Mo. banc 2002).


author: ADOLPHO A. BIRCH, JR., J.,

text:
    STATE of Tennessee v. Sheila Teresa Gaye BOBADILLA and Benjamin Bernal Bobadilla.
    Supreme Court of Tennessee, at Knoxville.
    May 3, 2005 Session.
    Nov. 30, 2005.

      J. Russell Pryor, Greeneville, Tennessee, for the Appellant, Benjamin B. Boba-dilla. T. Wood Smith, Greeneville, Tennessee, for the Appellant, Sheila Bobadilla.
    Paul G. Summers, Attorney General and Reporter; Michael E. Moore, Solicitor General; Elizabeth T. Ryan, Assistant Attorney General, for the Appellee, State of Tennessee.
   OPINION

ADOLPHO A. BIRCH, JR., J.,

delivered the opinion of the court,

in which WILLIAM M. BARKER, C.J., and FRANK F. DROWOTA, III, E. RILEY ANDERSON, and JANICE M. HOLDER, JJ., joined.

We accepted review of this cause under the Tennessee Rules of Appellate Procedure, Rule 11, in order to address a question properly preserved and certified pursuant to the provisions of the Tennessee Rules of Criminal Procedure, Rule 37(b)(2). The question, as certified, is: “Whether the search warrant and accompanying affidavit that led to the search of the defendant’s residence violated the United States and Tennessee Constitutions as well as Tennessee Rule of Criminal Procedure 41(c), so as to render all of the evidence seized pursuant thereto, illegal and inadmissible.”

In our painstaking review of the record, we have determined that the search warrant was not issued in accordance with the requirements of the Tennessee Rules of Criminal Procedure, specifically Rule 41(c). Thus, we hold the search conducted pursuant to the warrant unreasonable and the evidence obtained as a result inadmissible. Accordingly, the judgment of the Court of Criminal Appeals, affirming the trial court’s judgment on other grounds is reversed, and the indictment in this case is dismissed.

I. Facts and Procedural History

On May 13, 2003, a magistrate issued a warrant for the search of the residence of Benjamin and Sheila Bobadilla. Deputy Sheriff Doug Johnson executed the warrant on the same day and, during the search of the home, uncovered contraband and drug paraphernalia. The defendants were each indicted for possession of a controlled substance with intent to sell or deliver in violation of Tennessee Code Annotated section 39-17-417 and possession of drug paraphernalia in violation of Tennessee Code Annotated section 39-17-425.

The defendants filed motions to suppress the evidence obtained during the search, alleging that the warrant had been issued without probable cause and that the warrant had failed to meet the requirements of Tennessee Rule of Criminal Procedure 41(c). Although no testimony was adduced in support of their motions, the trial court overruled the motions and commented as follows:

The only item in all of this affidavit and warrant combination that doesn’t comply with Rule 41 is the hour. And I know that Stepherson says ... which is a paraphrase, says where the issuing magistrate fails to endorse the warrant [with] the hour, date, and name of the officer to whom it is delivered for execution, the search is illegal.
Here, the name and the date are endorsed sufficiently. It is only the hour that is missing.... [I]t was executed on the same date that it was issued [and] endorsed by the officer.... It seems to me that that does in fact supply all the things needed.
... I find and I believe that the appellate courts would find that all the elements are supplied....

Thereafter, Sheila Bobadilla pleaded guilty to facilitation of possession of cocaine with the intent to sell or deliver, and Benjamin Bobadilla pleaded guilty to possession of cocaine with the intent to sell or deliver. Both defendants pleaded guilty to possession of drug paraphernalia. The trial court sentenced Sheila Bobadilla to serve concurrent sentences of three years for count one and eleven months twenty-nine days for count two. The trial court sentenced Benjamin Bobadilla to serve eight years for count one and eleven months twenty-nine days for count two, concurrently. The trial court imposed fines totaling $2,150 upon each defendant.

The defendants, pursuant to Rule 87(b)(2) of the Tennessee Rules of Criminal Procedure, preserved a question for appellate review: whether the search warrant and accompanying affidavit that led to the search of the defendant’s residence violated the Tennessee and United States Constitutions and Tennessee Rule of Criminal Procedure 41, so as to render all of the evidence seized pursuant thereto, illegal and inadmissible.

On direct appeal, the Court of Criminal Appeals affirmed the trial court’s judgment without having considered the certified question. Now, we consider the certified question pursuant to Rule 11 of the Tennessee Rules of Appellate Procedure.

II. Standard of Review

This case involves the trial court’s denial of the defendants’ motion to suppress evidence. On appeal, unless the evidence preponderates otherwise, we presume the trial court’s findings of fact are correct. State v. Lawrence, 154 S.W.3d 71, 75 (Tenn.2005) (citing State v. Davis, 141 S.W.3d 600, 625 (Tenn.2004) and State v. Odom, 928 S.W.2d 18, 23 (Tenn.1996)). This case does not involve any factual dispute; therefore, this Court reviews de novo the trial court’s application of the law to the facts, without according any presumption of correctness. See State v. Crutcher, 989 S.W.2d 295, 299 (Tenn.1999); State v. Yeargan, 958 S.W.2d 626, 629 (Tenn.1997).

III. Analysis

A. Documents Appended to Filings as Evidence

Before addressing the certified question, we must address the Court of Criminal Appeals’ conclusion that it could not consider the defendants’ contention on appeal because the search warrant was not in evidence. The State contends, and the Court of Criminal Appeals agrees, that the search warrant in this case cannot be considered on appeal because the search warrant was not admitted into evidence and, therefore, was not a part of the record on appeal.

It is well-settled that the duty to prepare a record which “conveys a fair, accurate, and complete account of what transpired with respect to those issues that are the bases of the appeal” rests on the appellant. Tenn. R.App. P. 24(b). What is in the record sets the boundaries for what the appellate courts may review, and thus only evidence contained therein can be considered. State v. Miller, 737 S.W.2d 556, 558 (Tenn.Crim.App.1987), ‘perm. app. denied, (Tenn.1987). The appellate rule concerning content and preparation of the record states, in part: “The record on appeal shall consist of: (1) copies, certified by the clerk of the trial court, of all papers filed in the trial court except as hereafter provided; [and] (2) the original of any exhibits filed in the trial court....” Tenn. R.App. P. 24(a).

The State cites State v. Johnson, where the court would not consider a search warrant because it was not made a part of the record. 854 S.W.2d 897, 901 (Tenn.Crim.App.1993). In Johnson, however, the search warrant was made available to the appellate court only in an attempt to amend the trial record. Id.

Additionally, the State relies on State v. Melson, 638 S.W.2d 342 (Tenn.1982). A photocopy of the search warrant in Melson was stapled to a memorandum in support of the motion to suppress. Id. at 351. This Court concluded that the manner in which the search warrant had been placed in the record fell short. Id. (citing Krause v. Taylor, 583 S.W.2d 603 (Tenn.1979)). The warrant had not been referred to as being incorporated in the memorandum, and it had not been introduced as evidence. Id. Moreover, in accordance with Tennessee Rule of Appellate Procedure 24(a), a memorandum of law is not included in the appellate record. See Willis v. Tennessee Dept. of Corr., 113 S.W.3d 706, 709 n. 2 (Tenn.2003); Aclin v. Speight, 611 S.W.2d 54, 56 (Tenn.App.1980).

The instant case is distinguishable from Johnson and Melson. The search warrant in this case was appended to the defendant’s motion to suppress; it was not stapled to a memorandum in support of the motion. The motion, with the search warrant appended thereto, was properly filed with the trial court on September 9, 2003. The motion to suppress and the search warrant were both included in the record that was certified and provided by the Cleric of the Criminal Court of Greene County to the Court of Criminal Appeals.

Furthermore, in State v. Housler, we recently held that

any matter appropriately considered by the trial court is properly includable in the appellate record and may be added to the record under Rule 24(g) when such matter is ‘necessary to convey a fair, accurate and complete account of what transpired in the trial court with respect to issues that are the bases of appeal.’

167 S.W.3d 294, 298 (Tenn.2005). Thus, because the copy of the search warrant was in the record and was reviewed and considered by the trial court, we conclude that the defendants have built a proper record and, upon appellate review, the search warrant may be considered.

B. Tennessee Rule of Criminal Procedure 41

We are hampered somewhat in our consideration of the certified question because the Court of Criminal Appeals did not address the merits of the question as certified. A remand to the Court of Criminal Appeals for its examination would constitute, in our view, a needless expenditure of scarce judicial resources. Additionally, there are no disputed issues of fact apparent in the record. For these reasons, we elect to respond to the certified question, which is dispositive of the cause. See Tenn. R.App. P. 13(b).

Tennessee Rule of Criminal Procedure 41(c) imposes “procedural safeguards [which] are intended ‘to secure the citizens against carelessness and abuse in the issuance and execution of search warrants.’ ” State v. Coffee, 54 S.W.3d 231, 233 (Tenn.2001) (quoting Talley v. State, 208 Tenn. 275, 345 S.W.2d 867, 869 (1961)). The portion of Rule 41(c) which is most pertinent to this case is as follows:

The magistrate shall .endorse upon the search warrant the hour, date, and name of the officer to whom the warrant was delivered for execution; and the exact copy of the search warrant and the endorsement thereon shall be admissible evidence. Failure of the magistrate to make said original and two copies of the search warrant or failure to endorse thereon the date and time of issuance and the name of the officer to whom issued, or the failure of the serving officer where possible to leave a copy with the person or persons on whom the search warrant is being served, shall make any search conducted under said search warrant an illegal search and any seizure thereunder an illegal seizure.

Tenn. R.Crim. Proc. 41(c) (2008) (emphasis added).

We have interpreted these rules strictly; the language is plain and the requirements are mandatory. Coffee, 54 S.W.3d at 283-34. For instance, in Coffee, this Court found that the judicial commissioner’s failure to retain a copy of the search warrant, in violation of Rule 41(c), required suppression of the evidence seized as a result of the execution of the search warrant. Id.

Review of the transcript in this case indicates that the trial court found that the search warrant did not contain an endorsement of the hour of its issuance, as required by Rule 41(c). Although the trial court noted the requirements had not been met, the court reasoned that the endorsements of the time, date and officer were required “to show that [the search warrant] was executed without delay.” The court continued, “[These endorsements were] to show that it was executed subsequent probably to the issuance, and it seems that all the constitutional rights, Fourth Amendment rights, are protected and displayed on the written parts of this warrant and affidavit.” The trial court is eminently correct in its rationale — that the pertinent part of Rule 41(c) is designed to ensure that if a search warrant is executed prior to its issuance, such discrepancy will be apparent on the face of the warrant. Because the hour was not endorsed by the magistrate on the search warrant in this case, the warrant fails to explicitly show that it was issued first — then executed. Therefore, the search warrant fails to meet the requirements as set forth in Tennessee Rule of Criminal Procedure 41(c). Under the explicit provisions of Rule 41(c) such failure “shall make any search conducted under said search warrant an illegal search and any seizure thereunder an illegal seizure.”

IV. Conclusion

We conclude that the search warrant in this case as certified by the clerk is part of the record and therefore can be considered upon review. Furthermore, we conclude that under the facts of this case, the search warrant on its face did not meet the requirements of Tennessee Rule of Criminal Procedure 41(c). Therefore, the warrant was invalid, the search was illegal, and the evidence obtained thereby inadmissible. Accordingly, we reverse the judgment of the Court of Criminal Appeals holding that the search warrant was not a reviewable part of the appellate record and dismiss the indictment upon the basis expressed herein. Costs of this appeal are taxed to the State of Tennessee.