author: GLENN A. NORTON, Judge.

text:
    John E. BATKA, Appellant, v. Sharon K. BATKA, Respondent.
    No. ED 85387.
    Missouri Court of Appeals, Eastern District, Division Three.
    Aug. 30, 2005.

      Daniel R. Schramm, Chesterfield, MO, Joanna W. Owen, St. Louis, MO, for appellant.
    W. Scott Pollard, Florissant, MO, for respondent.
   OPINION

GLENN A. NORTON, Judge.

John Batka (“Husband”) appeals the judgment modifying the parties’ separation decree, in which the court removed the termination date on maintenance awarded to Sharon Batka (“Wife”) and ordered Husband to provide health insurance for Wife. We reverse.

I. BACKGROUND

At the time the parties separated in 1994, Wife had been declared disabled, was receiving disability benefits and was not working. The parties’ separation agreement provided that Husband would pay Wife $700 a month in maintenance for ten years, until April of 2004. The parties had originally agreed that maintenance would be non-modifiable, but the court told the parties it would not approve the ten-year term unless it was modifiable because that would be unconscionable in that there was no evidence that Wife would be able to support herself at the expiration of that term. Thus, the parties made the maintenance provision modifiable. Husband also agreed to maintain health insurance coverage for Wife until November 1995. The court found that the parties’ separation agreement was not unconscionable and incorporated it into a separation decree.

In March of 2004, Wife moved to modify the separation decree to increase the amount of maintenance and to remove the termination date from the maintenance provision. She cited the deterioration of her health, her inability to work and the increased cost of living as the changed circumstances necessitating modification. Her motion did not mention her health insurance, which Husband had continued to provide for Wife voluntarily even after the expiration of the agreement. The parties stipulated that Husband was able to pay maintenance and that Wife was disabled. At the hearing on Wife’s motion, she testified about her worsened physical condition and the additional medical problems she had developed since the separation decree. She also testified that she had worked up until the last year of the marriage, when her treatments at a pain management clinic made it too difficult to continue working. Since the separation decree, Wife had attempted babysitting her sister’s children, but testified that she was not able to do it everyday because of her medical condition. Wife also testified to her expenses and her income, both of which had increased to some degree since the parties separated. The parties’ income and expense statements filed at the time of separation and those filed at the time of the motion to modify were also before the court. Wife testified that she had worked out a budget and could live comfortably on the maintenance she was receiving.

Wife testified that she had accepted the ten-year term of maintenance despite advice that, with her health problems, she should not agree to that limitation. Each party testified that the length of the term was the other party’s idea based on the number of years the parties had been married. Wife also indicated that, at the time of the separation agreement, she had hoped that her financial and physical situation would improve.

The court concluded that Wife’s medical condition had not improved and that she had met her burden of showing that she still was not capable of supporting herself without maintenance. The court went on to say that if there needed to be a change in circumstances since the separation decree to support modification, it found “that Wife has not become self-supporting within ten years and her medical condition has not improved as the parties anticipated.” The court did not increase the amount of maintenance, but did order Husband to continue paying it until further modification by the court and also ordered Husband to continue providing Wife’s health insurance coverage “in the nature of support.” Husband appeals.

II. DISCUSSION

We will affirm a judgment modifying a dissolution decree unless it is unsupported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Clark v. Clark, 101 S.W.3d 323, 329 (Mo.App. E.D.2003). The evidence, including all reasonable inferences drawn therefrom, is viewed in the light most favorable to the judgment, and all contrary evidence and inferences are disregarded. Id. We defer to the trial court even if the evidence could also support a different conclusion. Id. In this case, even construed favorably to the judgment, the trial court’s conclusion is not supported by substantial evidence.

A. Maintenance

In general, the court may modify maintenance only if the moving party proves by detailed evidence a change in circumstances so substantial and continuing as to make the terms of the original maintenance order unreasonable. Id. at 330; section 452.370.1 RSMo 2000. When, as in this case, the maintenance order includes a termination date, the court may only extend the duration of maintenance beyond that date “based upon a substantial and continuing change of circumstances which occurred prior to the termination date of the original order.” Section 452,335.3. “We strictly enforce these statutory requirements so as to discourage recurrent and insubstantial motions for modification.” Draper v. Draper, 982 S.W.2d 289, 291 (Mo.App. W.D.1998).

Here, the trial court initially misstated that Wife had the burden only to show that she still needed maintenance at the expiration of the original term:

By doing what the parties eventually agreed [that is, a ten-year modifiable term of maintenance] they shifted the burden to Wife to show after the ten years that her medical condition still required that she needed the maintenance. Without the ten year limitation it would have been Husband’s burden to show that Wife does not need maintenance. The Court sees the issue before it as whether Wife’s medical condition and employability has changed such that she no longer needs maintenance but that it is her burden to show that she still needs the maintenance.

This approach required Wife to show that there had been no change in the circumstances since the separation decree. The statutes require a movant on a motion to modify to show a change, not the absence of change. See sections 452.370.1 and 452.335.3. The trial court correctly noted that, had there been no limit on the duration of maintenance, it would have been up to Husband to move to modify the decree to terminate maintenance and then it would have been his burden to show a change in circumstances, which Wife could have rebutted with evidence that she still needed maintenance. But that is not the procedural posture of this case, and because Wife moved to modify she had the burden to show the changed circumstances.

Despite the trial court’s misstatement of the parties’ relative burdens and the standards for modification, it nevertheless made a finding that Wife’s failure to become self-supporting and lack of improvement in her health, “as the parties anticipated,” constituted a change in circumstances. Husband contends that the trial court’s failure to address whether the change in circumstances rendered the original term of maintenance unreasonable was a misapplication of the law. The failure to make this finding using the express language of the statute, however, does not render the modification erroneous, as long as there is evidence to support a finding of a substantial and continuing change in the circumstances. See Nelson v. Nelson, 14 S.W.3d 645, 651 (Mo.App. E.D.2000). The evidence did not support the trial court’s finding in this case.

1. Changes in Wife’s Health and Earning Capacity

Although there was evidence that Wife’s medical condition had deteriorated and that she had developed new medical problems since the time of separation, her health is only relevant to maintenance— and can only constitute a change in circumstances supporting modification — to the extent that it affected her earning capacity. See Meiners v. Meiners, 858 S.W.2d 788, 792 (Mo.App. E.D.1993) (citing Fulp v. Fulp, 808 S.W.2d 421, 423 (Mo. App. W.D.1991)). There is no dispute on appeal that Wife has been unable to work due to her medical condition. But that was true at the time of separation as well: she was not working due to her disability at the time of the original separation decree and she was not working due to her disability at the time she sought modification. Therefore, although her health had worsened, her inability to support herself remained the same. The trial court’s findings that Wife’s medical condition had not improved and that she was not able to support herself were not changes in the circumstances and provided no basis for extending maintenance past the termination date in the original decree.

2. Changes in the Parties’ Expectations

The court’s findings seem to have hinged not so much on the circumstances themselves being different than they were at the time of separation, but on the circumstances being different than the parties had anticipated they would be at the expiration of maintenance. Even if the difference between the circumstances at the end of a limited-duration maintenance provision and the parties’ expectations about those circumstances could constitute a change supporting modification of the termination date, such a finding would have to be based on sufficient evidence of the parties’ expectations at the time of the original decree. “It is rudimentary that in order to determine whether circumstances have changed, one must first have knowledge of the circumstances to be compared.” Smillie v. Smillie, 989 S.W.2d 619, 622 (Mo.App. S.D.1999). Here, the only evidence that supported the court’s finding that the parties had anticipated Wife would be better and able to support herself after ten years was Wife’s testimony that she had “hoped” that she would be able to work and that her physical situation would get better. Even construed favorably to the court’s judgment, this testimony at best demonstrates Wife’s expectations, which were unsupported — according to the court’s statement — by any evidence at the time of separation that she would be able to support herself after ten years. And there was no evidence as to Husband’s expectations regarding Wife’s health or ability to work after ten years. Thus, the trial court’s finding regarding the parties’ expectations was not supported by substantial evidence and provided no basis for extending maintenance past the termination date in the original decree.

3. Changes in Wife’s Expenses

Husband contends that there was not a significant increase in Wife’s expenses in the last ten years to support modification. Although Wife’s motion was based in part on her increased cost of living, the trial court did not include that in its findings of changed circumstances, and it does not appear that the court otherwise relied on any increase in her expenses to support its extension of the modification term. Rather, the trial court’s conclusions regarding Wife’s expenses appear to have been related to its decision not to increase the amount of maintenance. In any case, the evidence would not have supported a conclusion that Wife’s expenses had increased so substantially and permanently as to render the original termination date on maintenance unreasonable.

At the hearing, Wife admitted that the average monthly expenses on her 2004 statement were overstated by $58.40. Wife’s expense statement also included $71.33 a month in charitable contributions and $160.68 a month for savings. Wife testified that she did not start donating to charity until after the parties separated and that she has stopped since Husband’s maintenance payments ceased. Similarly, Wife testified that for the first couple of years she was receiving maintenance, she was not able to add to her savings. But then she devised a budget under which she could meet her needs on the maintenance she was receiving and “do a little bit of savings” to cover unanticipated expenses. She testified that she had used some of her savings to put a down-payment on a car and to fix another car. Since maintenance terminated, however, Wife has also had to infringe on her savings to pay her monthly expenses.

As Husband contends, neither of these expenses are allowable. It is well-settled that modest charitable contributions may be included when figuring the reasonable expenses of the party seeking maintenance only if there is substantial evidence that those contributions were made throughout the course of the marriage. See Cohen v. Cohen, 73 S.W.3d 39, 50-51 (Mo.App. W.D.2002) (error to include contributions where charitable giving commenced when parties separated). Likewise, inclusion of Wife’s contributions to savings as a reasonable expense was improper, as that would amount to the creation of a “future estate” contrary to “both the literal meaning of ‘maintenance’ and the conceptual theories undergirding the Dissolution of Marriage Act.” Fausett v. Fausett, 661 S.W.2d 614, 618 (Mo.App. W.D.1983). Maintenance awards are to be limited to the demonstrable needs of the party receiving support and not to provide an accumulation of capital. Muenz v. Muenz, 99 S.W.3d 4, 8 (Mo.App. E.D.2002).

Deducting the $58.40 overstatement, the $71.33 in charitable contributions and the $160.68 in savings from the $1543 in total average monthly expenses she reported on her 2004 statement, Wife’s allowable monthly expenses were $1252.59. Her monthly expenses at the time of separation were $1323.35. Thus, her expenses decreased by $70.76 since the time of separation, and that change in circumstances could not support an extension of the maintenance term.

In sum, Wife failed to meet her burden to prove that there has been, since the time of separation, a substantial and continuing change in circumstances rendering the original termination date on maintenance unreasonable. Her motion to modify should have been denied.

B. Health Insurance

Husband argues that the court’s order to pay Wife’s health insurance was void because it was outside the scope of relief requested in the pleadings and unsupported by sufficient evidence of a change in the circumstances. First, it might be possible to construe the court’s order as an increase of the maintenance award by the amount of the health insurance. This appears to have been the court’s intent, given that it found that Wife needed for Husband to continue paying the insurance or the maintenance needed to be increased by that amount. See note Jt supra. Since Wife requested an increase in maintenance, that issue was properly before the court. Nevertheless, because we have concluded that Wife failed to prove that maintenance should be extended past the original termination date, any issue as to the amount of maintenance is moot.

Moreover, the order appears to be void on other grounds. Although insurance can be a form of maintenance, where the parties have classified it otherwise in an agreement and that agreement is found not unconscionable and is incorporated into a decree that is not appealed, the parties are bound by that agreement as they intended. See generally Eveland, 156 S.W.3d at 368. Here, the plain language of the parties’ agreement unambiguously demonstrates that they intended Husband’s obligation to provide Wife health insurance to be a division of property. A division of property is not modifiable. See id.; see also section 452.330.5. Thus, to the extent the court’s judgment purports to adjudicate the parties’ obligations with respect to previously divided marital property, the court acted in excess of its jurisdiction. See generally Frisella v. Frisella, 872 S.W.2d 637, 641 (Mo.App. E.D.1994).

III. CONCLUSION

The judgment is reversed.

CLIFFORD H. AHRENS, P.J. and NANNETTE A. BAKER, J. concurring.

      . Wife has not filed a responsive brief with this Court.

      . All statutory references are to RSMo 2000.

      . The separation agreement including the limited duration maintenance provision was incorporated into the decree — which was not appealed — and therefore is binding. See generally section 452.325.2; see also Eveland v. Eveland, 156 S.W.3d 366, 368 (Mo.App. E.D.2004). Although the propriety of incorporating that provision into the decree is not before us on this appeal, we note that it appears from the record that the court could have rejected as unconscionable not just the non-modifiable aspect of maintenance, but also the limited duration. "There is a judicial preference for awards of unlimited maintenance. Limitation on the duration of maintenance is justified only where substantial evidence exists of an impending change in the financial conditions of the parties.” Craig-Garner v. Garner, 77 S.W.3d 34, 39 (Mo.App. E.D.2002) (internal citations omitted). "There must be some evidence that the original maintenance award will no longer be required in the future.” McIntosh v. McIntosh, 41 S.W.3d 60, 72 (Mo.App. W.D.2001). Here, the court expressly stated that there was no evidence at the time of separation that Wife would be able to support herself after ten years. Thus, it seems that the court would have been justified in refusing to approve that term of years and, instead, entering an order of unlimited modifiable maintenance.

      . After concluding that Wife’s expenses were reasonable, the court went on to find “that Wife needs more than $700 per month in maintenance to meet her reasonable needs but Wife has not presented sufficient evidence as to what her reasonable needs to meet her standard of living and the Court will not speculate as to what those needs might be except that Wife needs for Husband to continue paying the medical insurance or the maintenance should be increased by that amount.”

      . The trial court noted that Wife had testified that she had used her savings to cover extraordinary expenses recently and therefore her contributions to savings was a reasonable expense. "A trial court, in calculating and awarding maintenance, may allow a reasonable amount above the itemized expenses of the party seeking maintenance to meet unexpected day-to-day expenses which, given their nature, may be reasonable under the circumstances, yet are incapable of specific itemization,” Childers v. Childers, 26 S.W.3d 851, 856 (Mo.App. W.D.2000). But even if it was within the court’s discretion to increase maintenance to include some amount to cover unexpected expenses, we decline to say that Wife's increased ability to save in order to cover unanticipated expenses was a proper basis for finding that the original termination date on maintenance was unreasonable and should be extended — especially in the absence of any such argument from Wife on appeal or any such finding by the trial court.


source: Caselaw Access Project

author: GLENN A. NORTON, Chief Judge.

license: Public Domain

text:
    STATE of Missouri, Plaintiff/Respondent, v. Brian CURTIS, Defendant/Appellant.
    No. ED 84723.
    Missouri Court of Appeals, Eastern District, Division Five.
    Sept. 13, 2005.

      Brian Curtis, Clayton, pro se.
    Shawn Mackelprang, Lacey Searfoss (co-counsel), Jefferson City, for respondent.
   GLENN A. NORTON, Chief Judge.

Brian Curtis (Defendant) appeals from his convictions, after a guilty plea, for five counts of violating an order of protection and one count of stalking. Because his notice of appeal is untimely, we dismiss his appeal.

In two separate criminal cause numbers, Defendant was charged with two counts of violation of an order of protection, cause number 03CR-1306, and one count of stalking and three additional counts of violation of an order of protection, cause number 03CR-1610. All of the charges are class A misdemeanors. On September 23, 2003, Defendant pleaded guilty to all six misdemeanor counts. On September 25, 2003, the trial court sentenced Defendant on all six counts. In cause number 03CR-1306, the court sentenced Defendant to one year in the Department of Justice Services and a consecutive sentence of six months in the Department of Justice Services. In cause number 03CR-1610, the court sentenced Defendant to one year in the Department of Justice Services for each count, but suspended execution of the sentence and placed Defendant on probation. On December 8, 2003, Defendant’s probation was suspended and ultimately revoked on June 2, 2004.

On December 3, 2003, Defendant filed a motion to vacate, set aside, or correct his judgment pursuant to Rule 29.15. Defendant sought to have his convictions in the above two cases set aside. This proceeding was given a third cause number, 03CC-5215. On December 31, 2003, the trial court denied this motion, concluding that Rule 29.15 provides only a remedy for those convicted of felonies after a trial. In addition, Rule 24.035, which provides a remedy for those who plead guilty, only applies to felonies and persons delivered to the Missouri Department of Corrections.

After Defendant’s probation was revoked, he filed a notice of appeal on June 3, 2004, in which he referenced the cause numbers 03CR-1306 and 03CR-1610. This Court issued an order stating that Defendant had not identified the judgment from which he was appealing. The order stated that he “has filed copies of numerous documents with this Court including copies of sentences entered in accordance with pleas of guilty in cause nos. 03CR-1306 and 03CR-1610 on September 25, 2003, a copy of a judgment entered on a probation revocation hearing in 03CR-1610 on June 2, 2004, and a copy of a PCR judgment entered on December 31, 2003 in 03CC-5215.” We ordered Defendant to identify the judgment from which he was appealing, and, because it appeared any appeal was untimely, to show cause why his appeal should not be dismissed. Despite numerous filings since that date, Defendant has never clearly identified which judgment he is appealing. He did, however, file a document asking this Court to dismiss all the charges against him and allow his appeal from final judgment and sentencing in cause numbers 03CR-1306 and 03CR-1610. He then made allegations of ineffective assistance of counsel and referenced the judgment in 03CC-5215. The State has also filed a motion to dismiss Defendant’s appeal, contending Defendant is entitled to no relief under the post-conviction rules. Again, despite multiple filings by Defendant, he did not respond to the State’s motion.

Regardless of whether Defendant is appealing from his criminal convictions or the civil judgment denying his Rule 29.15 motion, Defendant’s notice of appeal was untimely. As to his criminal convictions, Rule 30.01(d) provides that a notice of appeal in a criminal case is due no later than ten days after the judgment becomes final. A judgment is “final” in a criminal case when the sentence is entered. State v. Williams, 871 S.W.2d 450, 452 (Mo. banc 1994). Here, in both cases, the trial court sentenced Defendant on September 25, 2003. Therefore, his notice of appeal from his criminal convictions was due ten days later, on Monday, October 6, 2003. Rule 30.10(d); Rule 20.01(a). Defendant filed his notice of appeal on June 3, 2004, well outside the time limits of Rule 30.01(d).

Moreover, even if his appeal was timely, Defendant does not appear to raise any issues for appellate review. Defendant pleaded guilty and in such a case, the only issues cognizable on direct appeal are the subject matter jurisdiction of the trial court and the sufficiency of the charging instrument. State v. Klaus, 91 S.W.3d 706 (Mo.App. E.D.2002). None of Defendant’s complaints, as evidenced by his filings with the trial court and this Court, pertain to either of these issues. Therefore, even if his appeal had been timely, this Court would have had to dismiss the appeal for lack of jurisdiction on that basis. If he is attempting to appeal from the probation revocation entered on June 2, 2004, it is also not appealable. State v. Engle, 125 S.W.3d 344, 345 (Mo.App. E.D.2004).

To the extent Defendant’s appeal pertains to the judgment denying his Rule 29.15 motion, it also appears untimely. The judgment in that case was entered on December 31, 2003. Motions filed under Rule 29.15 are governed by the rules of civil procedure. Rule 29.15(a). Under the civil rules, a notice of appeal must be filed no later than ten days after the judgment becomes final. Rule 81.04(a). In a civil case, a judgment becomes final thirty days after its entry unless an authorized after-trial motion is timely filed. Rule 81.05(a)(1); Ort v. DaimlerChrysler Corp., 138 S.W.3d 777, 779 (Mo.App. E.D.2004). There is nothing in the record filed by Defendant to indicate that an after-trial motion was filed. Therefore, the motion court’s judgment became final on January 30, 2004 and Defendant’s notice of appeal was due February 9, 2004. Defendant’s notice of appeal, filed June 3, 2004, is untimely as to the PCR case. Moreover, even if Defendant’s appeal were timely, the motion court’s conclusions that neither Rule 29.15 nor Rule 24.035 provides a remedy for Defendant, who was convicted of misdemeanors, are not clearly erroneous. Rule 29.15(a); Rule 24.035(a).

The State’s motion to dismiss is granted. The appeal is dismissed.

KATHIANNE KNAUP CRANE, J., and BOOKER T. SHAW, J., concur.


author: PER CURIAM.

text:
    STATE of Missouri, Respondent, v. Arthur SWANK, Appellant.
    No. ED 85385.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 13, 2005.
    Ellen H. Flottman, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Deborah Daniels, Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Defendant Arthur Swank (“Swank”) appeals from a guilty verdict entered by the Circuit Court of Shelby County after a jury found him guilty of one count of Statutory Rape in violation of Section 566.034 RSMo (2000). The Honorable Hadley E. Grimm sentenced Swank to four years imprisonment, subject to callback after 120 days. The jury’s verdict is supported by substantial evidence and the trial court did not abuse its discretion.

No error of law appears and an opinion would have no jurisprudential purpose. The parties have been given a memorandum for their information only, setting forth the reasons for this order. The judgment is AFFIRMED pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Vernon MOORE, Appellant.
    No. ED 85053.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 13, 2005.
    Timothy Joseph Forneris, Office of the Missouri Public Defender, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before: GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Vernon Moore (Moore) appeals the trial court’s judgment convicting him of Assault in the First Degree and Armed Criminal Action. The trial court’s judgment properly found that Moore assaulted Julius Collins with leg shackles and was therefore guilty of armed criminal action. We have reviewed the briefs of the parties and the Record on Appeal, and we find no error of law in this case. Thus, an opinion would have no precedential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed pursuant to Rule 30.25(b).


text:
    Wayne WILLIE, Appellant, v. Bill STOCKHORST, and Charlie Goll, Respondents.
    No. ED 85543.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 13, 2005.
    Vernon R. Dawdy, Lofftus & Dawdy, Fenton, MO, for appellant.
    Daniel Eugene Leslie, Union, MO, for respondent.
    Before: GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Wayne Willie (Willie) appeals the trial court’s judgment granting summary judgment in favor of Defendants Bill Stock-horst and Charlie Goll (Defendants). The trial court’s judgment properly found that Willie failed to show a genuine issue for trial, and Defendants were thus entitled to judgment as a matter of law. We have reviewed the briefs and the Record on Appeal, and we find no error of law in this case. Thus, an opinion would have no precedential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed pursuant to Rule 84.16(b).


text:
    Brion CARROLL, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85165.
    Missouri Court of Appeals, Eastern District, Division Two.
    Sept. 13, 2005.
    Craig Johnston, Assistant State Public Defender, Columbia, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Alison K. Brown, Deborah Daniels, Jefferson City, MO, for respondent.
    Before: GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Defendant Brion Carroll (“Carroll”) appeals from the judgment entered by the Circuit Court of St. Louis County finding him guilty of five counts of First-Degree Assault (one count class A; four counts class B), in violation of Section 565.050 RSMo, and five counts of Armed Criminal Action, in violation of Section 571.015.

Carroll challenges the sufficiency of the evidence for four of the five first-degree assault convictions. Furthermore, Carroll argues that if these four assault convictions are overturned, then the corresponding armed criminal action charges should also be overturned, where each requires the commission of an underlying felony.

We have reviewed the briefs of the parties and the Record on Appeal, and we find no error of law in this case. Thus, an opinion would have no precedential value. The parties have been given a memorandum for their information only, setting forth the reasons for this order. The judgment is affirmed pursuant, to Rule 30.25(b).


text:
    STATE of Missouri, Respondent v. Phillip GOODWIN, Appellant.
    No. ED 84936.
    Missouri Court of Appeals, Eastern District, Division Four.
    Sept. 13, 2005.
    Michelle M. Rivera, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Ronald S. Ribaudo, Jefferson City, MO, for respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Defendant, Phillip Goodwin, appeals from the judgment entered after a jury found him guilty of robbery in the second degree. The trial court sentenced defendant, as a prior and persistent offender, to twenty-two years imprisonment.

In his sole point on appeal, defendant argues that the trial court erred in not taking action sua sponte to exclude certain improper questions by the prosecutor. No jurisprudential purpose would be served by a written opinion. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. The judgment is affirmed. Rule 30.25(b).


author: NANCY STEFFEN RAHMEYER, Judge.

text:
    In the Matter of The Care and Treatment of Jamin SHAFER, Respondent-Appellant.
    No. 26431.
    Missouri Court of Appeals, Southern District, Division One.
    Sept. 14, 2005.

      Emmett D. Queener, Columbia, for appellant.
    Jeremiah W.(Jay) Nixon, Atty. General, Sarah G. Madden, Asst. Atty. General, Jefferson City, for respondent.
   NANCY STEFFEN RAHMEYER, Judge.

Jamin Shafer (“Appellant”) was convicted of rape with armed criminal action in 1995; the victim was a 17 year-old woman. While serving his eight-year sentence for the rape conviction, Appellant participated three times in the Missouri Sexual Offender Program (MOSOP). MOSOP is cognitive behavior therapy which requires the participation of a group of sexual offenders. If members of the group do not believe the statement of one of the partid-pants, the members will challenge that participant until he shares truthfully. Twice, Appellant failed to complete the program.

On November 3, 1998, Appellant received notice that he must successfully complete the MOSOP, or he would be subject to commitment as a sexually violent predator (SVP). Appellant began his third attempt at MOSOP and managed to complete it. During this last attempt at MO-SOP, Appellant admitted to his therapist and other participants that he had raped five girls from the time he was sixteen until the age of eighteen. Prior to his release, Mr. Hoeflein, a licensed professional counselor working for the Missouri Department of Corrections, conducted an end of confinement evaluation on Appellant. During this evaluation, Appellant again admitted the five rapes. Hoeflein admitted at trial that he found it “rather odd” that Appellant would have withheld this information on the five rapes in his first two attempts at MOSOP and through most of the third. Upon request, Mr. Hoeflein re-interviewed Appellant three days after the first interview in order to confirm the report of these five rapes. Appellant again admitted the five rapes to Hoeflein. Appellant subsequently recanted on his admission that he had committed five rapes.

Prior to Appellant completing his sentence in the Department of Corrections, on May 17, 1999, the State filed a petition seeking to have Appellant committed as a SVP. The jury found Appellant to be a SVP. Appellant appealed that decision, and the judgment was reversed and remanded due to an improper jury instruction. In re Care and Treatment of Shafer, 100 S.W.3d 819, 820 (Mo. banc 2003). The case was retried in 2004, and in April 2004, Appellant was committed as a SVP.

At trial, the State introduced the testimony of Dr. Terry Davis, a Nebraska psychiatrist, who evaluated Appellant and based his opinions on “a couple thousand pages of records,” because Appellant declined a face-to-face evaluation with Dr. Davis. Over the objections of Appellant, Dr. Davis testified that Appellant suffered from antisocial personality disorder (APD). A diagnosis of APD must include evidence of a conduct disorder at or around the age of fifteen, and this evidence can include aggression, property damage, deceitfulness, thefts, or serious violations of rules; Dr. Davis testified that he had found such evidence in Appellant. Dr. Davis listed the facts in Appellant’s history supporting this evidence: reports of physical fights, both in and away from school; a juvenile court charge for either maliciously killing or injuring a dog when he was 17; a history of dishonesty before and during treatment; incidents of stealing; and probation violations when he was 16. He testified a diagnosis of APD served as a “mental abnormality” under Missouri’s SVP law, section 632.480(2).

Dr. Davis testified that Appellant’s APD predisposed him to commit sexual violence because of his history of sexual assaults. At the same time, Dr. Davis stated that without the existence of the five rapes Appellant would not meet the definition of a SVP, although he would probably still be diagnosed as having APD. In terms of Appellant’s dangerousness and likelihood of re-offending, Dr. Davis testified, “those five rapes are key [to] predicting what his future behavior would be.” In other words, his opinion regarding Appellant’s ability to control his behavior was based on the five rapes. Dr. Davis claimed Appellant was likely to re-offend and pointed to several factors: (1) the number of sexual offenses or convictions; (2) whether the victims were strangers; (3) the presence of APD; and (4) Appellant’s lack of success during treatment.

Although Appellant had since recanted his admission of the five rapes and Dr. Davis acknowledged the recantation, he still considered Appellant’s admission of the five rapes reliable because, in his words:

It’s my opinion, and my experience has been that individuals with an antisocial personality will deny things that they have done, but they generally don’t admit to things they haven’t done.... It is unlikely, in my opinion, that he would admit to these if they didn’t, in fact, occur.

At the same time, Dr. Davis also testified:

It is somewhat difficult to get a real accurate picture of [Appellant’s] history. Frankly, the reason being that he says he — he lies all the time, essentially all the time, from age — well, starting as a child, on, he has said that he lies. He has given numerous stories about various aspects of his history. So it’s difficult to tell exactly what’s accurate or what’s not.

Ultimately, Dr. Davis stated at trial that Appellant suffered from APD, a mental abnormality under section 632.480(2), this mental abnormality predisposed Appellant to commit sexual violence, and that because of this abnormality and predisposition, Appellant has serious difficulty controlling his behavior.

In the first Point Relied On, Appellant argues that the probate court abused its discretion in admitting evidence that Appellant suffers from APD because a diagnosis of APD cannot satisfy the statutory requirement of a “mental abnormality” as it fails to distinguish a condition predisposing a person to commit a sexually violent offense from a personality disposed to criminal conduct in general. He argues that the definition of mental abnormality, which is detailed in section 632.480(2), defines mental abnormality as “a congenital or acquired condition affecting the emotional or volitional capacity which predisposes the person to commit sexually violent offenses in a degree constituting such person a menace to the health and safety of others.”

The analysis concerning whether a personality disorder can serve as a mental abnormality is set forth in In re Care and Treatment of Pate, 137 S.W.3d 492 (Mo.App. E.D.2004). “First, we look to see if [Appellant’s] personality disorder qualifies as a[sic] ‘a congenital or acquired condition.’ ” Id. at 497. APD qualifies as an acquired condition. Next, the acquired condition must affect the emotional or volitional capacity which would predispose the person to commit sexually violent crimes. Id.; see also In re Care and Treatment of Burgess, 147 S.W.3d 822, 831-32 (Mo.App. S.D.2004) (stating that in terms of a mental abnormality under the sexually violent predator statute in Missouri, “... part of [the] consideration is whether a relationship exists between a particular disorder and the sexual offenses committed by the alleged sexually violent predator.”)

In fact, Appellant concedes that APD can be a mental abnormality under section 632.480(2) if coupled with a sexual component, which would make him dangerous as a sexual offender. Because of this concession, Appellant, for all intents and purpose, has abandoned his First Point Relied On. What he is actually contending is the expert testimony regarding the sexual component of Appellant’s disorder was not reliable; consequently, without this testimony, the State cannot show that Appellant is a sexual predator under section 632.480. The remaining argument and cases in this point support Appellant’s belief that “[i]nvoluntary civil commitment of so-called sexual predators is only permissible when it commits a distinct group of criminals who present a very specific danger to the safety of others”; such commitments are “an aberration of ■ the law, permissible in only very narrow circumstances.” Appellant concludes:

The probate court abused its discretion in admitting evidence that [Appellant] suffers APD. Because this was the only evidence establishing the element of a “mental abnormality” necessary for [Appellant’s] commitment as a sexually violent predator, the judgment of the probate court committing [Appellant] to the custody of the DMH must be reversed and [Appellant] must be released.

Appellant does not even argue that the diagnosis of APD was in error. He misses the mark by combining his challenge to the evidence that he has an acquired condition, APD, with this claim that APD alone fails to distinguish a condition predisposing a person to commit a sexually violent offense from a condition predisposing a person to criminal conduct in general. Appellant’s second Point Relied On argues that Dr. Davis, the State’s expert, relied upon improper and unreliable evidence that Appellant had committed five rapes between the ages of sixteen and eighteen. Therefore, the actual arguments and concerns of Point I will be addressed in the discussion of his second Point Relied On. Appellant argues in his second point that the trial court abused its discretion in admitting the expert testimony of Dr. Davis because Dr. Davis relied on Appellant’s admission of the five rapes, which Appellant contends are unreliable under section 490.065.3:

The facts or data in a particular case upon which an expert bases an opinion or inference may be those perceived by or made known to him at or before the hearing and must be of a type reasonably relied upon by experts in the field in forming opinions or inferences upon the subject and must be otherwise reasonably reliable.

In support of his argument, Appellant cites to Goddard v. State, 144 S.W.3d 848 (Mo.App. S.D.2004), which holds the trial judge must determine independently whether the facts and, data are otherwise reasonably reliable according to the mandates of section 490.065.3. Id. at 854. Appellant contends the trial court erred in accepting the testimony of Dr. Davis because the facts upon which Dr. Davis based his testimony were not “otherwise reasonably reliable.” Appellant believes that the admission was obviously unreliable because of the circumstances surrounding the admission: (1) he was twice terminated from the MOSOP for failing to adopt the principles and report honestly; (2) he was in a group which generally refuses to accept that a sex offender has committed only one crime; (3) he was given a stern warning from his therapist that he was not meeting expectations and was at risk of being terminated from the program; and (4) only after these previous failed attempts and a stern warning did Appellant report the other rapes, at which point he received positive feedback from the therapist and group.

In addition, Dr. Davis agreed it was reasonable to assume that Appellant’s fear of being committed would increase his motivation to complete the program and he also agreed that it was certainly possible that Appellant would do whatever he thought was necessary to get through the program in his last opportunity. Appellant again points to Dr. Davis’s testimony:

It is somewhat difficult to get a real accurate picture of [Appellant’s] history. Frankly, the reason being that he says he — he lies all the time, essentially all the time, from age — well, starting as a child, on, he has said that he lies. He has given numerous stories about various aspects of his history. So it’s difficult to tell exactly what’s accurate or what’s not.

Finally, Appellant cites to his own expert’s testimony, which disputes the testimony of Dr. Davis.

Appellant has pointed to several factors, which cause one to question the veracity of Appellant’s admission concerning the rapes and, consequently, the reliability of the State’s testimony; however, the trial court is only mandated to exclude testimony in those cases where the source upon which the expert relies is so slight as to be fundamentally unsupported. Goddard, 144 S.W.3d at 854. Furthermore, a disagreement between experts does not require the exclusion of either expert. Alcorn v. Union Pacific R.R. Co., 50 S.W.3d 226, 246 (Mo. banc 2001). Dr. Davis, while noting Appellant’s tendency to lie, also stated:

It’s my opinion, and my experience has been that individuals with an antisocial personality will deny things that they have done, but they generally don’t admit to things that they haven’t done.... It is unlikely, in my opinion, that he would admit to these if they didn’t, in fact, occur.

The weaknesses in Dr. Davis’s testimony go only to the weight the testimony should have been given and not its admissibility. See id. (“Any weakness in the factual underpinnings of the expert’s opinion or in the expert’s knowledge goes to the weight that testimony should be given and not its admissibility.”).

When abuse of discretion is raised, the reviewing court determines whether a trial court’s ruling is clearly against the logic of the circumstances before the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration. Nelson v. Waxman, 9 S.W.3d 601, 604 (Mo. banc 2000). The trial court does not abuse its discretion if reasonable persons can differ as to the propriety of the trial court’s action. Hancock v. Shook, 100 S.W.3d 786, 795 (Mo. banc 2003).

We do not find an abuse of discretion in the admission of the testimony of Dr. Davis. The jury was apprised of the recantation by Appellant and Dr. Davis was extensively cross-examined about the possible motives of Appellant to make such a claim. We cannot determine that Appellant’s statements that he committed five rapes prior to his conviction are not reasonably reliable or would not be reasonably relied upon by experts in the field. Appellant’s second point is denied.

The judgment is affirmed.

PREWITT, P.J., and PARRISH, J., concur.

      . All references to statutes are to RSMo 2000, unless otherwise specified.


text:
    Brent ANDERSON and Gina Anderson, his wife, Thomas Matthews and Mary K. Matthews, his wife, and Dickie Anderson, Plaintiffs-Appellants-Respondents, v. Robert R. MANTEL, Virgil A. Hammack and Madyln R. Hammack, Doreen Grogan and Wayne Grogan, Charlotte Talbert and Roger Talbert, and Douglas R. Nickell, Trustee for Mercantile Bank of Willow Springs, Defendants, Dorothy M. Mantel, Defendant-Respondent-Cross Appellant.
    Nos. 26284, 26289.
    Missouri Court of Appeals, Southern District, Division One.
    Sept. 19, 2005.

      David G. Neal, Eminence, MO, for Appellants-Respondents.

      Harvey S. Allen, Thayer, MO, for Respondent-Cross Appellant.
   NANCY STEFFEN RAHMEYER, Judge.

This is the second time this action for the declaration of a private road by strict necessity has been before this Court. See Anderson v. Mantel, 49 S.W.3d 760 (Mo. App. S.D.2001). The facts are more fully developed in that opinion, however, we will provide a brief synopsis for review of the issues pertinent to this case. Brent Anderson, Gina Anderson, Thomas Matthews, Mary K. Matthews, and Dickie Anderson (“Plaintiffs”) brought suit against Robert R. Mantel and Dorothy M. Mantel (“Defendants”) to establish a private road by strict necessity. Id. at 762. The land was purchased because of the good timber and the plan was for it to be logged; the owners intended to use pole trailers to haul tree-length logs. The trial court entered a judgment establishing a private roadway; however, this Court reversed due to Defendants’ claim of error in réfusing to receive into evidence two proposed, alternate routes for Plaintiffs’ use. Id. at 764-66. This Court, however, denied Defendants’ contention that there was insufficient evidence to support the court’s finding that Plaintiffs were entitled to a “way of necessity” leading from their landlocked tract of land through some portion of Defendants’ land to a public thoroughfare. Id. at 764.

On remand, the trial court filed a pretrial order directing the parties to file by October 1, 2001, a written disclosure of each of their suggestions for an alternative route to the route previously ordered. The disclosure was to list the following: (1) a distinct popular name for the route; (2) a written statement describing the route; (3) a detailed legal description of the route; and (4) the name and contact information of each person claiming any interest in any part of the route and a statement of the willingness of each such person to permit the right of way or easement and the conditions thereon, if any. Defendants filed a response proposing three alternative passages, referred to as the “NN Route,” the “East Route,” and the “West Route,” each to be forty feet in width. Plaintiffs did not file an initial response to the order and presumably requested that the judge stay with its original selection.

At the trial date of July 30, 2002, Defendants offered an amended response to the pretrial order asking that the proposed routes be decreased in width to fifteen or twenty feet, but the court refused to allow the amendment. Plaintiffs also filed a pleading requesting that the original route be increased in width from fifteen to thirty feet; that request was also denied. After a trial delay in order to allow Defendants to file an application for a writ, the trial commenced on October 1, 2002. At trial, Plaintiffs conceded the West Route offered by Defendants was more appropriate than the initial route or any other route.

In a Memorandum and Findings of Fact and an Order Determining Location of Private Road dated October 21, 2002, the court agreed that the West Route, with a width of forty feet, was the most appropriate; it further stated that Defendants would not be required to assist in either the construction or maintenance of the road, nor would they be permitted to use it. Defendants filed a motion challenging the forty-foot width of the road on November 20, 2002, but did not challenge the finding that Defendants would not be permitted to use the road. After an additional survey determined that Defendants did not own much of what they had described as owning in the West Route, Plaintiffs petitioned to change the description so as to not conflict with that part of the described road claimed by neighbors.

After the trial and post trial motions, the trial judge, who was present for the trial, recused himself and was replaced by the second judge, who appointed Commissioners to assess Defendants’ damages. A Report of Commissioners was filed on December 6, 2002, establishing Defendants’ damages in the amount of $17,500.00. After the assessment of damages by the Commissioners, Plaintiffs filed exceptions and requested the matter of Defendants’ true loss be placed before a jury for determination; Defendants did not file any exceptions to the assessment of damages by the Commissioners. Plaintiffs subsequently withdrew a request for a jury trial, accepted the Commissioners’ award, and entered "written Confessions of Judgment. The court accepted the Confessions, entered a final judgment awarding to Plaintiffs the West Route at the forty-foot width, but omitted the language of the interlocutory judgment that Defendants would not be given a right to use the private road. The judgment simply stated, “Defendants shall not have a duty to construct or maintain the private road described above.” It is from this judgment that both sides appeal.

Plaintiffs appeal the omission of the language which proscribed the use of the road by Defendants; Defendant appeals the forty-foot width, the refusal of the court to require Plaintiffs to maintain a fence along the private road, the denial of her attempt to amend her response to the pre-trial order, and claims the West Route does not satisfy the requirements to situate the road so as to do as little damage or injury to Defendant.

This Court will sustain the judgment of the trial court unless there is no substantial evidence to support the judgment, the judgment is against the weight of the evidence, or it erroneously declares or applies the law. Moore v. Quirk, 81 S.W.3d 717, 719 (Mo.App. S.D.2002). We review all evidence and all inferences in the light most favorable to the judgment, ignoring all contrary evidence and inferences. Id. We defer to the trial court’s ability to view the witnesses and determine credibility, keeping in mind that the trial court is free to believe or disbelieve all, part, or none of the testimony of any witness. Vaughn v. Willard, 37 S.W.3d 413, 415 (Mo.App. S.D.2001).

We begin with Plaintiffs’ claim that the trial court erred in refusing to incorporate in its entirety all the provisions of the first judge’s interlocutory order into the final judgment, specifically, the restriction against the Defendants’ use of the private road. As noted earlier, after the hearing on the appropriate route, the trial judge entered an interlocutory judgment, which designated Plaintiffs as the parties who were to construct and maintain the road and further stated:

Consistent with such an expectation [that the Court would select the West Route], Defendants make no request to use a private road on the West Route. At a forty[-]foot width they will not own land bordering the private road. Therefore, Defendants will not be granted a right to use or be given a duty to construct and maintain the private road.
Plaintiffs[’] concerns that the Southern portion of the West Route is encumbered by two thirty[-]foot easements presently enjoyed by non-parties to this action have been considered by the Court. Those easements were established by written grants and are not exclusive. Thus, an additional easement could be established by the fee owner at any time without objection. An order for a private road excluding Defendants from the use of the private road will establish an exclusive use, subject to all existing easements of record, including existing utility and non-exclusive road easements. If an easement holder successfully prevents the practical use of the private road a procedure for widening a private road is available. See Section 228.342, RSMo[.]
The Defendants^] motion to add the holders of the easements on the Southern portions and to file a Third Party Petition as to them are denied. It is not necessary they be parties. The Court believes an agreement as to the maintaining of the existing road surface in the area of the existing easements can be reached easily by reasonable people. If necessary, a separate action is available to resolve that issue. Such an action will not require Defendants. Thus, no orders regarding construction and maintenance will be made except those stated.
NOW, THEREFORE, the Defendants [’] motions to add the holders of the easements on the Southern portions of the West Route and to file a Third Party Petition as to them are denied. The Court also will make an order for a forty[-]foot private road using the entire legal description suggested by Defendants in their Pre-Trial Response and repeated in “Defendantsf] Exhibit V” received into evidence at trial on October 1, 2002. The order will exclude Defendants from any right to use the private road and from any duty to construct or maintain the private road.

Plaintiffs appeal the trial court’s omission in the final order of the language of the interlocutory order “prohibiting Defendant from using the private road.” Specifically, Plaintiffs maintain that section 228.358 requires all the provisions of the interlocutory order to be included in the final judgment and section 228.352 specifically requires the court to include in an interlocutory judgment a determination of the nature and scope of the parties’ rights to the use and the enjoyment of the private road. Defendant counters section 228.358 provides that should no exceptions to the Commissioners’ report exist or if Plaintiffs withdraw any exceptions, then the final judgment need not include language from the interlocutory judgment.

Both parties then admit that the construction of sections 228.352 and 228.358 is a question of law. As such, we conduct an independent review of the trial court’s statutory interpretation without deference to the trial court’s ruling. State v. Laplante, 148 S.W.3d 347, 348-49 (Mo.App. S.D.2004). Where the language of the statute is clear and unambiguous, there is no room for statutory construction and the language will be given its plain and ordinary meaning. Reeves v. Snider, 115 S.W.3d 375, 382 (Mo.App. S.D.2003).

The statutory scheme for obtaining a “way of strict necessity” divides the proceedings into several distinct phases. The first, provided by section 228.352, states:

After the time for filing the answer to the petition has expired and after the parties have had a reasonable time for discovery, the court shall conduct a non-jury hearing during which the parties may submit evidence pertaining to the allegations of the petition and to the proposed location of the private road. If the court determines upon a petition to establish a private road that there is access to a public road or that the way sought is not a way of strict necessity, then the petition shall be dismissed. If the court determines that there is no access to a public road and the way sought is a way of strict necessity, then it shall further determine the location of a private road that is situated so as to do as little damage or injury and cause as little inconvenience as practicable to the defendants.... The court shall then enter an interlocutory order for the establishment or widening of the private road at the location determined by the court. As part of such interlocutory order, the court shall also designate which party or parties shall be responsible for the construction, maintenance and repair of the private road and shall set out the nature and scope of the parties’ rights to the use and the enjoyment of the private road. However, the court shall not order the defendants to share responsibility for the construction, maintenance or repair of the private road if, under the court order, the defendants are not granted any rights to the use and enjoyment of the private road, or if any such rights are granted and the defendants waive such rights.

The court complied with the provisions of section 228.352. The trial court held a nonjury hearing, determined that a road was necessary as a way of strict necessity, and entered an interlocutory order designating Plaintiffs to be responsible for the construction, maintenance and repair of the private road and specifically stating that Defendants would not be granted any rights to the use and enjoyment of the private road.

After the interlocutory order is entered, damages must be assessed. Section 228.355 sets out the process for the appointment of Commissioners to determine damages:

When an order establishing or widening a private road is entered according to section 228.352, the court shall appoint three disinterested citizens of the county where the private road is to be located as commissioners to view the location of the private road and the real property affected and to assess damages to the defendants.... After the commissioners view the location of the private road and the real property affected, they shall report to the court and make an assessment of the damages sustained by each defendant. Upon the filing of such report of the commissioners, the clerk of the court shall immediately notify the parties of the filing of the report.

The language of 228.355 was clearly followed. The Commissioners entered their report as follows:

Now on this day comes JERRY HALL, KEVIN McEWEN, and RON WEBB, who were heretofore duly appointed Commissioners in the above-entitled cause, and report that they forthwith accepted the appointment, that they met together, took and filed in this case their qualifying oath, that all three together viewed all the property owned by Defendants to be affected by the roadway and have located and examined the general course and distance of said roadway, that they considered and weighed the damages, if any, which the Defendants will sustain by reason of the appropriation set out in the Petition, and took into consideration the benefits to be derived by the owners as well as the damages sustained thereby, as is required by law, and that they do herein and hereby forthwith return, under oath, to the Circuit Clerk of Howell County their report in duplicate, setting forth: (1) the amount of net damages, if any, together with, and immediately following, (2) a specific description of the property, for the taking or use of which the damages are assessed.

It should be noted that the Commissioners located and examined the general course and distance of the roadway and “took into consideration the benefits to be derived by the owners.” After the Commissioners enter their report, section 228.358 designates the process for filing exceptions to the Commissioners’ report and requesting a jury trial:

Within ten days after notification of the commissioners’ report, either party may file exceptions to the report and assessment of damages. If no exceptions are filed, the court shall enter a judgment establishing or widening the private road and assessing the damages as set forth in the commissioners’ report to be paid by the plaintiffs to the defendants. If either party files exceptions, the court shall impanel a jury and conduct a trial to determine the amount of damages to be paid by the plaintiffs to the defendants. Thereafter, the court shall enter a judgment establishing or widening the private road and assessing the damages as set forth in the jury’s verdict, and the provisions of the interlocutory order as provided in section 228.352 shall be included in such judgment. The private road so established or .widened shall be a permanent easement appurtenant to the plaintiffs’ real property.

It is this provision which is the subject of dispute between the parties. Defendant argues there are two distinct procedures for entering final judgment once the damages have been determined, one, if damages are assessed by the Commissioners or the second, if damages are assessed by a jury. If the damages have been determined by the Commissioners and no exceptions are filed, Defendant contends only the second sentence applies: “[T]he court shall enter a judgment establishing or widening the private road and assessing the damages as set forth in the commissioners’ report to be paid by the plaintiffs to the defendants.” Defendant contends the result of Plaintiffs withdrawing their exceptions is the same as if no exceptions had been filed. In other words, the court has no obligation to include all of the provisions of the interlocutory order in the final order if no exceptions are filed to the Commissioners’ report and the damages are assessed by the Commissioners. If exceptions are filed to the Commissioners’ report and damages are assessed by a jury, then, and only then, must the provisions of the interlocutory order be contained in the final order per the fourth sentence of section 228.358.

We find Defendant’s argument to be untenable. To accept her argument would allow a final judgment establishing or widening a private road that had significant changes to the private road as submitted to the Commissioners for an assessment of damages. The Commissioners’ assessment of damages may have no correlation to the actual damages provided for in the final judgment. For instance, in this case, the Commissioners could have assessed damages for a forty-foot road but the court could have entered a judgment for a twenty-foot road. That is not a logical or plain reading of the statute.

The statute clearly envisions the provisions of the interlocutory order to be included in either judgment. Section 228.352 supports that analysis in that it specifically provides that the Defendants shall not be ordered to share responsibility for the construction, maintenance or repair of a private road if, under the court order, they are not granted any right to the use and enjoyment of the private road, or if such rights are granted and the Defendants waive them. The plain, clear language of the statutes, when read in harmony, clearly allows the court to grant or deny the use and enjoyment of a private road. The interlocutory order in this case made such a provision for the rights for the use and enjoyment of the private road.

We find the language of the interlocutory order should have been included in the final order; however, contrary to the assertion of Plaintiffs, the language of the interlocutory order did not prohibit Defendants from using the private road. Instead, the language ordered, “Defendants shall not have a right to use the private road.” That is a significant difference of language, particularly in the case before this Court because a review of the West Route indicates that Defendants did not own land throughout much of the private road. In fact, in the interlocutory order, the trial court addressed the issue of the southern portion of the West Route being encumbered by two thirty-foot easements presently enjoyed by non-parties:

Those easements were established by written grants and are not exclusive. Thus, an additional easement could be established by the fee owner at any time without objection. An order for a private road excluding Defendants from the use of the private road will establish an exclusive use, subject to all existing easements of record, including existing utility and non-exclusive road easements. If an easement holder successfully prevents the practical use of the private road a procedure for widening a private road is available. See Section 228.342[J

An Order which goes one step further than refusing to grant Defendants a right to use the road and instead prohibiting Defendants from using the road, regardless of any other easements or rights, would be an inappropriate infringement on any other prior easements. We are obligated under rule 84.14 to finally dispose of a case on appeal, unless justice otherwise requires, and to “give such judgment as the court ought to give.” In re Marriage of Reese, 155 S.W.3d 862, 876 (Mo.App. S.D.2005) (citing rule 84.14 as proper authority to render final judgment). Although the trial court erred in failing to set forth the provisions of the interlocutory order, we will render the appropriate judgment and amend paragraph 2 of the judgment to read, “Defendants shall not have a right to use the private road and shall not have a duty to construct or maintain the private road.”

We shall now discuss what is designated Defendant’s Point V, the issue of whether the designation of the West Route is a misapplication of law for failure to comply with the requirements of sections 228.345 and 228.352. Defendant contends that, although the West Route was proposed by her, that in fact she preferred the NN Route. Defendant bases her contentions on the following testimony of Robert Mantel, Sr.:

Question: Now, if the Court were to grant an easement to the Plaintiffs across this NN route, would that reduce the inconvenience to you?
Answer: It sure would.
Question: Would the NN route be the least inconvenient route for your purposes?
Answer: Yes, it would.

There is no further explanation by the owner of the property for the court to base a judgment that the NN Route would be the least inconvenient to the property owners. It provides only the conclusion and opinion of the property owner that the NN Route would be the least inconvenient.

The testimony of Defendant’s son, Robert Mantel, Jr., does little to assist in determining the convenience of the routes. Robert Mantel, Jr. testified that though the NN Route was passable only by a tractor or a pretty good-sized four-wheel drive vehicle because of the brush, that it was the route that caused the least inconvenience to the cattle operation. He testified the NN Route was off to one side of the operation which was not used very often and the choice of the NN Route would reestablish good will with the neighbors on the west side of the property. He did not explain at all how the West Route interfered in any way with the cattle operation, nor did he explain how the neighbors’ good will was imperiled by the choice of any other route.

None of Defendant’s explanations suffices to establish a misapplication of the law with the choice of the West Route, especially since the court had contrary expert testimony, which indicated that the NN Route contained severe terrain that could not be developed into a reliable roadway that was reasonably practical to construct and maintain. When coupled with the evidence that Robert Mantel, Sr. acknowledged to Plaintiffs’ expert that the NN Route was not constructible, we can find no error in the choice of the West Route. Defendant’s Point V is denied.

Finding no error that the West Route was the appropriate route for the road, we next turn to Defendant’s Points II and III as they are entwined on the issue of whether the West Route should have been limited to a twenty-foot width as opposed to the designated forty-foot width. Specifically, Point II challenges the trial court’s refusal to allow Defendants to amend their response to the pre-trial order to change their initial response that a forty-foot road was acceptable whereas Point III challenges the determination that the road should be forty-feet wide. Amendments are allowed very liberally when justice requires, however, the trial court is given broad discretion whether to allow such amendments. Southwestern Bell Yellow Pages, Inc. v. Wilkins, 920 S.W.2d 544, 550 (Mo.App. E.D.1996). We will not disturb a decision not to allow amendments absent an abuse of discretion. Id. The trial court, although refusing to allow Defendants to amend their response to the pretrial order, did allow testimony regarding the appropriateness of a forty-foot road versus a twenty-foot road. Therefore, the court had before it evidence on that issue. Furthermore, in its judgment, the court found “that the private road on the West Route should be forty-feet wide. That finding is reached independently of the Defendants!’] Response to the PreTrial Order and Defendants!]] trial exhibit, ‘Defendants!’] Exhibit V.’ ” We find no abuse of discretion in the refusal of the trial court to allow an amendment to the pretrial order on the day set for trial because we find no prejudice to Defendants. Point II is denied.

As to the issue of whether the establishment of the forty-foot private road was against the weight of the evidence and not supported by substantial evidence, we note the trial court’s detailed findings:

[The forty-foot width] is based upon the evidence of the anticipated usage, the existing easements, the terrain, the several ninety degree turns and the believable and credible expert testimony.
The Court finds that: (A) Forty foot width is necessary to practically accommodate shared usage of the portion encumbered with the two thirty[-]foot easements for ingress and egress; (B) forty[-]foot width is necessary to permit practical usage at the numerous turns; (C) forty[-]foot width is necessary to permit grading and filling on the portions with side slopes and the sink hole to construct a practical private road; And, (D) forty foot is necessary to accommodate meeting trucks on such a lengthy private road.
Plaintiffs presented evidence of usages contemplated for the private road not mentioned in the first trial in 2000. The movement of lengthy trucks and an occasional mobile home also requires a forty[-]foot width, especially on the turns.
The only other route, which could be made practical by widening, is the Middle Route. That route is not convenient to Defendants because it goes through Defendants!’] pastures. Defendants obtained a deed in their name describing the West Route at forty feet wide to avoid a route through their pasture. They also obtained and offered a forty foot wide NN Route. The determination of a forty[-]foot width for the West Route appears to have been anticipated.
Consistent with such an expectation, Defendants make no request to use a private road on the West Route. At a forty[-]foot width they will not own land bordering the private road. Therefore, Defendants will not be granted a right to use or be given a duty to construct and maintain the private road.

Defendant contends in her point relied on that “both experts” testified that the standards they used for the design of a road of this type designated a width of less than forty feet; Defendant then argues that the route should range from a twenty-foot radius at corners to fifteen feet for the rest of the route. Defendant cites the testimony of her expert, Mr. Scott, to support a conclusion that a fifteen-foot easement would have been sufficient to build the recommended size of roadway for a road with 100 vehicles or less per day based on standards set in a national design guide; however, Defendant’s expert acknowledged that the road would have to have a thirty or thirty-five-foot inside radius for an 18-wheeler-type vehicle to make the corners. Furthermore, he testified the roadway must have a passing lane every 1000 feet and must be widened to thirty feet in width at a distance of sixty feet away from the corners.

Plaintiff, Mike Matthews, contradicted the conclusions of Defendants’ experts by stating that the logging business would use large trucks to cut, remove and market logs; he stated he would need a full forty feet in width for the road in order to get the trucks around the several corners and to be able to pass each other because there will be only a single passage in and out. Plaintiffs’ expert, David Nelson, while using the same “Green Book” produced by the American Association of State Highway Officials, Transportation Officials to arrive at his conclusions, testified a fourteen-foot wide driving surface with one-foot ditches on the side would normally be adequate for a logging road; however, if the road was to be used by large trucks and possibly for the passage of one or more mobile homes and considering there would be four ninety-degree turns to negotiate, the full forty feet was necessary to accommodate the traffic.

As noted above, Defendants first proposed the forty-foot roadway, which was subsequently adopted by the court, and never submitted a description of a proposed route that would have been wide enough at the corners to permit the passage of the large trucks and mobile homes yet narrowed in straight stretches of road. Defendants simply wanted the roadway to be limited to fifteen to twenty feet, which was not feasible by the testimony of any expert. Giving deference to the trial court to assess the credibility of the witnesses, we find sufficient evidence supports the trial court finding forty feet to be the appropriate width of the private road. Defendant’s Point III is denied.

Defendant finally contends that the trial court erred in its application of the law when it refused in its final order to require Plaintiffs to maintain a fence along the private road. Defendant claims the determination of the necessity of gates and fencing along the private road was not considered by the Commissioners as damages because the fencing was not addressed in the interlocutory order nor were any instructions on fencing responsibilities given to the Commissioners prior to the award of damages. Defendant further argues that pursuant to section 228.352, the court should have determined the responsibilities of the parties as to fencing and cites to the language in that section which provides that the court shall designate which party or parties shall be responsible for the construction, maintenance and repair of the private road and sets out the nature and scope of the parties’ rights to the use of the enjoyment of the private road as authority that the court must set out the rights and responsibilities of the parties as to appurtenances connected to the road, such as fences and gates.

The trial judge noted the Commissioners’ award of damages made allowance for those concerns. Indeed, the Commissioners specifically stated they considered the benefit to be derived by the owner as well as damages sustained. Moreover, Defendant fails to cite any case to support her proposition that the trial court had a duty to determine where fences and gates should be located and who should pay for them. Equally troubling is that Defendants failed to present any evidence at trial that would have supported any orders of the trial court to provide for fences and gates, thus, the trial court would have based such orders ■ on pure speculation. The first time this issue appears to have been addressed by Defendants was after trial and after the interlocutory order was entered, and after the Commissioners had assessed damages. Prior to the entry of the final judgment, Defendants filed a Motion to Amend Order Determining Location of Private Road requesting that the trial court include a provision in the order for the construction of gates and fences. Defendants’ motion to amend the order to include an order for the construction of gates and fences did not include any specific requests and was, in effect, a motion to take evidence after the trial on that issue. We cannot convict the trial court of any error for matters not properly brought to its attention. Williams v. Greene County Sheriff’s Dept., 94 S.W.3d 450, 454 (Mo.App. S.D.2003). In essence, Defendants were requesting a new trial on this issue.

A trial court is allowed broad discretion in deciding whether to reopen a case to allow the admission of additional evidence. Foster v. Village of Brownington, 76 S.W.3d 281, 287 (Mo.App. W.D.2002). It is an abuse of discretion when the trial court refuses to reopen the case for material evidence; evidence which would substantially affect not only the merits of the action, but the trial court’s decision as well. Hill v. Boyer, 72 S.W.3d 284, 286 (Mo.App. S.D.2002). The court’s denial of Defendants’ motion to amend the order for a determination of the construction of gates and fences filed after the trial of this case was not in error. Point V is denied.

We reverse the judgment of the trial court and amend paragraph 2 of the judgment to read, “Defendants shall not have a right to use the private road and shall not have a duty to construct or maintain the private road.” In all other respects, the judgment is affirmed.

PREWITT, J., concurs.

GARRISON, P.J., concurs in result only.

      . The description of the roadway is not being disputed by either party in this appeal and those issues have been resolved with the neighboring owners.

      . Defendant Robert R. Mantel passed away in November 2003 and the parties stipulated that his wife and co-defendant, Dorothy M. Mantel, has become his successor in interest to any rights and claims arising under this suit. A Memorandum was filed in the trial court on January 23, 2004, which stated, "Robert Mantel is to be removed from the proceedings as a Defendant.” Mrs. Mantel is the only original defendant who is a party to this appeal.

      . All references to statutes are to RSMo 2000, unless otherwise specified.

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

      . Section 228.345 states in pertinent part:
      The proposed private road as established or widened shall not exceed forty feet in width and shall be situated so as to do as little damage or injury and cause as little inconvenience as practicable to the owner or owners of the real property over which the private road shall pass.
      Section 228.352 states in pertinent part:
      If the court determines that there is no access to a public road and the way sought is a way of strict necessity, then it shall further determine the location of a private road that is situated so as to do as little damage or injury and cause as little inconvenience as practicable to the defendants.

      . We note that prior to the repeal of section 228.370 in 1991, the statute did provide that the Commissioners were to file a report, including an assessment of the items of damages sustained by each person through whose land said proposed road passed, including the erection of fences and the kinds of fences to be erected.


author: VICTOR C. HOWARD, Presiding Judge.

text:
    Allen BOLDEN, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64016.
    Missouri Court of Appeals, Western District.
    Sept. 20, 2005.

      Rosemary E. Percival, Assistant Public Defender, Kansas City, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Attorney General, Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before HOWARD, P.J., and SMART and NEWTON, JJ.
   VICTOR C. HOWARD, Presiding Judge.

Allen Bolden appeals from a judgment denying his Rule 29.15 motion for postcon-viction relief. Bolden claims that the motion court clearly erred when it found that he was not denied effective assistance of counsel at his trial. We reverse the judgment and remand to the motion court to vacate Bolden’s convictions and sentences and afford him a new trial. •

Facts and Procedural History

The facts and circumstances of this case are quite unique. This is the second time we have addressed an appeal regarding the denial of Bolden’s motion for postcon-viction relief. In the first case, Bolden v. State of Missouri, 106 S.W.3d 579, 580 (Mo.App. W.D.2003), we summarized the factual and procedural background of this case as follows:

Bolden was convicted by a jury of assault in the first degree, § 565.050, [RSMo 1994,] and armed criminal action, § 571.015, [RSMo 1994], He was sentenced to consecutive terms of thirty years for .assault and ninety years for armed criminal action, for a total sentence of 120 years. His convictions and sentences were affirmed on direct appeal. State v. Bolden, 39 S.W.3d 114 (Mo.App. W.D.1999).
Bolden timely filed his pro se Rule 29.15 and, after appointment of counsel, an amended motion was timely filed on August 2, 2000. On March 2, 2001, following an evidentiary hearing, the circuit court granted the motion for post-conviction relief and vacated Bolden’s convictions and sentences. The circuit court also determined Bolden was mentally incompetent for retrial on the charges and committed him to the Department of Mental Health for evaluation.
Six months later, the Department of Mental Health found Bolden’s unfitness to proceed “no longer endures” and declared him to have the capacity to understand the proceedings against him and assist in his own defense. The State filed a Motion for Reconsideration of the circuit court’s order of March 2, 2001, which had granted the postconviction relief motion and vacated Bolden’s convictions and sentences. Pursuant to Rule 74.06(b), the State argued the prior order was void and irregular because the circuit court did not issue findings of fact and conclusions of law in granting postconviction relief, as required by Rule 29.15(j).
On March 7, 2002, the circuit court granted the State’s Motion for Reconsideration and set aside its order of March 2, 2001, which had sustained the Rule 29.15 Motion. Bolden promptly filed Writs of Prohibition in this court and then the Missouri Supreme Court to challenge the circuit court’s reconsideration of the postconviction relief earlier granted. Both writs were denied.
Bolden now appeals the order of March 7, 2002, wherein he contends the circuit court erroneously denied his Rule 29.15 Motion. The State has filed a Motion to Dismiss the Appeal, asserting no final judgment has been entered on the postconviction motion and, thus, this court lacks appellate jurisdiction.

(Footnote omitted.) We granted the State’s motion and dismissed Bolden’s first appeal because although the motion court set aside its previous Rule 29.15 order, it had not entered a final judgment sustaining or overruling Bolden’s Rule 29.15 motion. Id. at 581.

The motion court then conducted another hearing and issued a new judgment overruling Bolden’s motion. We now address the merits of Bolden’s appeal from that judgment.

Standard of Review

We review a denial of a postconviction relief motion to determine whether the motion court’s findings of fact and conclusions of law are “clearly erroneous.” Rule 29.15(k); Moss v. State, 10 S.W.3d 508, 511 (Mo. banc 2000). The motion court’s “[flindings and conclusions are clearly erroneous if, after a review of the entire record, the court is left with the definite and firm impression that a mistake has been made.” Moss, 10 S.W.3d at 511. As the movant, Bolden “has the burden of proving [his] claims for relief by a preponderance of the evidence.” Rule 29.15(f).

Discussion

Bolden claims that the motion court erred in denying his Rule 29.15 motion, because he established that he was denied effective assistance of counsel at his trial, in that he was incompetent at the time of his trial, but his trial counsel failed to ask for an inpatient mental examination, waived the issue of competency on the record, and proceeded to trial despite his being unable to assist in his own defense.

To prevail on his claim of ineffective assistance of counsel, Bolden must show first that “counsel’s representation fell below an objective standard of reasonableness,” and second that his counsel’s deficient performance prejudiced his defense such that, but for the ineffective representation, the result would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). “The attorney’s conduct must be so egregious that it undermines the proper functioning of the adversarial process to such an extent that the original trial cannot be relied on as producing a just result.” Clayton v. State, 63 S.W.3d 201, 206 (Mo. banc 2001).

Prior to trial, Bolden’s counsel became concerned about Bolden’s competency to stand trial. Both counsel and the trial court received letters from Bolden containing random numbers and letters that made no sense. One letter appeared to be smeared 'with feces. At pre-trial appearances, Bolden acted erratically and strangely. During at least one hearing, Bolden urinated in the courtroom. At another appearance, Bolden took a swing at counsel. During his testimony at a motion to suppress hearing, Bolden referred to a conspiracy regarding activist Louis Farrakhan.

Bolden’s trial counsel also had concerns about Bolden’s ability to follow her advice or assist in his defense. • Counsel had received a twenty-year plea offer from the State, but she was not able to effectively communicate it to Bolden and did not believe he understood the offer. Bolden refused to allow counsel to speak with his family and would not respond to her questions and comments. Instead, Bolden would suggest ways for counsel to kill herself.

Counsel requested and received a mental examination for Bolden that was conducted by Dr. Birmingham. Dr. Birmingham found Bolden competent but warned counsel to watch for any deterioration of his condition over time. Counsel then requested a second examination by Dr. Van-denberg. Bolden refused to speak with Dr. Vandenberg. However, after reviewing Bolden’s records, Dr. Vandenberg concluded that Bolden needed to be observed as an inpatient to further explore and evaluate Bolden’s seriously disordered thinking. Subsequently, Dr. Birmingham again saw Bolden and also suggested the need for an inpatient evaluation.

On September 8, 1997, Bolden appeared in court, expressed his frustration with efforts to have him evaluated further, and announced that he was competent and ready for trial. The trial court asked Bol-den’s trial counsel how she wanted to proceed regarding the mental issues. Counsel told the court that the psychologists were concerned about Bolden’s mental condition and had suggested an inpatient evaluation, but Bolden would not cooperate with them and was opposed to further evaluation. When Bolden insisted to the court that he was competent, counsel replied, “I guess by this Mr. Bolden is waiving any mental issues.... [I]f he’s going to waive his mental defense, then we just as well go ahead and proceed to trial.” Counsel then let the case go to trial without requesting any further evaluations of Bolden.

At the postconviction hearings, counsel said she was not planning on waiving the mental issues, but she instead was planning on asking for an inpatient evaluation. However, counsel was surprised when Bol-den told the trial court he wanted to waive the mental issues, so “at that time, [she] just waived.”

The case proceeded to a jury trial on October 7, 1997, and Bolden’s bizarre behavior continued. Bolden made both sexual and threatening statements to witnesses in the presence of the. jury. Counsel sat Bolden with his back to the jury to minimize the jury’s ability to observe his conduct.

At sentencing, Bolden made a number of bizarre statements, including that America would be destroyed in 1999. During the pre-sentence investigation, Bolden told the investigator that his treatment plan should be to send him to Saudi Arabia to be educated and become King and that he was a Mend of King Fayed. Bolden also told the investigator that “he did away with his emotions and feelings through astro-rejection, metaphysics, telepathic powers, telekinetics, and psychokinesis” and that he “was both psychic and clairvoyant.”

After his convictions were affirmed on direct appeal, Bolden filed his Rule 29.15 motion claiming that his trial counsel was ineffective for failing to ask the court for further mental evaluation and instead agreeing to proceed to trial. Bolden argued that his counsel had a duty to ensure he was capable of making a knowing, voluntary, and intelligent decision to forego the State’s plea offer and proceed to a jury trial.

At the motion hearing, counsel recounted Bolden’s bizarre behavior and her concern before trial about his mental fitness. Counsel did not feel that Bolden understood her attempts to explain the plea offer, nor did she believe Bolden was capable of assisting in his own defense. Despite the two psychologists’ recommendations for an inpatient evaluation, counsel said she waived the competency issue not out of trial strategy but because Bolden wanted her to. Dr. Vandenberg testified at the motion hearing that Bolden was not competent at the time of his trial due to mental disease and defect, specifically paranoid schizophrenia.

Of course, the motion court was not required to believe any of the testimony regarding Bolden’s incompetence, but the record indicates that the motion court did believe it. At the conclusion of the hearing, the motion court (which also conducted the trial) said: “I’m a lot of things but fair being the most one. Mr. Bolden had no idea what was going on. He wouldn’t cooperate. No doubt in my military mind he was schizoid. And I was here when he did those things so nobody is lying about it.”

On March 2, 2001, the motion court sustained Bolden’s Rule 29.15 motion and vacated Bolden’s convictions and sentences. The motion court found that Bolden was suffering from paranoid schizophrenia, and, following Dr. Vandenberg’s recommendation, it ordered Bolden committed to the Department of Mental Health pursuant to section 552.020 RSMo, 2000, because he lacked the capacity to understand the proceedings against him and to assist in his own defense. The motion court’s order notes that the attorneys for the State and Bolden agreed to all aspects of the order.

On October 19, 2001, the State filed a “Motion for Reconsideration,” asking the court to reconsider its March 2, 2001, order because it did not comply with Rule 29.15’s requirement for findings of fact and conclusions of law. The State, in a subsequent motion, also argued that the motion court could reconsider its Rule 29.15 ruling under Rule 74.06(b)(3), which allows a court to relieve a party from a final judgment or order when it is irregular.

On March 7, 2002, citing Rule 74.06, the motion court granted the State’s motion. The court set aside its March 2, 2001, order and reinstated Mr. Bolden’s convictions and sentences.

After this court dismissed Bolden’s appeal from the March 7, 2002, order for lack of a final judgment, the motion court conducted another hearing on Bolden’s Rule 29.15 motion with essentially the same evidence being introduced. Dr. Vandenberg also explained that a person who is psychotic might have moments of lucidity, appearing to be coherent, but still be incompetent to stand trial.

The motion court issued a new judgment, this time overruling Bolden’s Rule 29.15 motion. The judgment pointed to the fact that one doctor had found Bolden competent and Bolden refused to cooperate with the other. The judgment also noted that Bolden cogently waived the competency issue in open court and that counsel had done everything she could do given the circumstances. This brings us full circle back to the summary we began with above.

“No person who as a result of mental disease or defect lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted or sentenced for the commission of an offense so long as the incapacity endures.” § 552.020 RSMo, 2000. “Due process requires that a defendant may not be tried unless he is competent to stand trial.” State v. Tokar, 918 S.W.2d 753, 762 (Mo. banc), cert. denied, 519 U.S. 933, 117 S.Ct. 307, 136 L.Ed.2d 224 (1996) (citing Medina v. California, 505 U.S. 437, 112 S.Ct. 2572, 2574, 120 L.Ed.2d 353 (1992)). “ ‘The principle which will not tolerate conviction of an accused who lacks capacity to consult with counsel and to understand the proceedings rests on values of public conscience — quite apart from considerations of guilt or innocence.’ ” State v. Petty, 856 S.W.2d 351, 353 (Mo.App. S.D.1993) (quoting State v. Clark, 546 S.W.2d 455, 467-68 (Mo.App.1976)).

Counsel had serious concerns about Bolden’s competency. She had observed his bizarre behavior and was unable to get him to understand the State’s plea offer. She secured two psychologists to evaluate her client. One psychologist found Bol-den competent but warned counsel that Bolden would need observation due to possible deterioration in his condition. Bolden refused to cooperate with the second psychologist, but he was able to make a recommendation based upon a review of Bolden’s records. Both psychologists ultimately recommended inpatient evaluation of Bolden to determine his competency to stand trial because his capacity was so questionable. In spite of this, counsel waived the competency issue and proceeded to trial even though, as she admitted at the evidentiary hearing, Bolden was unable to assist in his own defense.

When Bolden, pro se, wanted to waive the competency issue, the trial court even invited counsel to tell the court what she wanted to do. Counsel replied, “I guess by this Mr. Bolden is waiving any mental issues,” and she proceeded to trial without requesting an inpatient mental evaluation as recommended by the psychologists.

Counsel’s concerns were validated during Bolden’s trial. At the first evidentiary hearing, the trial court even commented on Bolden’s behavior at trial and said, “[n]o doubt in my military mind he was schizoid.” Additionally, the State and Bolden’s postconviction counsel agreed to the first Rule 29.15 order, which found Bolden incompetent.

We find that Bolden’s trial counsel’s performance constituted ineffective assistance of counsel and that Bolden established prejudice because there is a reasonable probability that the result would have been different if an inpatient evaluation had been requested. The motion court, after the first evidentiary hearing, even commented that had Bolden received further mental evaluation “he probably would have had a 552 NGRI out of the deal.”

We are left with the definite and firm impression that a mistake has been made. The judgment denying postconviction relief is reversed, and the case is remanded with directions to vacate Bolden’s convictions and sentences and place the case on the trial docket.

SMART and NEWTON, JJ., concur.

      . Bolden raised another issue in his appeal, but our disposition of the case does not require addressing it.

      . See § 552.030.1, which states, "A person is not responsible for criminal conduct if, at the time of such conduct, as a result of mental disease or defect such person was incapable of knowing and appreciating the nature, quality, or wrongfulness of such person's conduct.”


text:
    STATE of Missouri, Respondent, v. Mark L. DUDLEY, Appellant.
    No. WD 64322.
    Missouri Court of Appeals, Western District.
    Sept. 20, 2005.
    Ellen H. Flottman, Columbia, MO, for appellant.
    Deborah Daniels, Assistant Attorney General, Jefferson City, MO, for respondent.
    Before JOSEPH M. ELLIS, Presiding Judge, PAUL M. SPINDEN, Judge and VICTOR C. HOWARD, Judge.
   ORDER

PER CURIAM.

Mark L. Dudley appeals from his conviction by jury of one count of felony murder in the second degree, § 565.021, one count of burglary in the second degree, § 569.170, and one count of armed criminal action, § 571.015. Appellant was sentenced as a prior and persistent offender to consecutive terms of life imprisonment on the felony murder count, fifteen years on the burglary count, and twenty-five years on the armed criminal action count. No jurisprudential purpose would be served by a formal written opinion; however, a memorandum explaining the reasons for our decision has been provided to the parties.

Judgment affirmed. Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Hector CARDENAS, Appellant.
    No. WD 64315.
    Missouri Court of Appeals, Western District.
    Sept. 20, 2005.
    Margaret Mueller Johnston, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Attorney General, Alison K. Brown, Asst. Attorney General, Jefferson City, MO, joins on the briefs, for Respondent.
    Before JAMES M. SMART, JR., P.J., RONALD R. HOLLIGER, and LISA WHITE HARDWICK, JJ.
   Order

PER CURIAM.

Hector Cardenas appeals his jury convictions on two counts of first-degree assault, two counts of armed criminal action, and two counts of first-degree tampering. 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).