text:
    STATE of Missouri, Respondent, v. Cherry CAGE, Appellant.
    No. ED 85909.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 20, 2005.
    John K. Tucci, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Ron S. Ribaudo, 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.

Appellant Cherry Cage (“Cage”) appeals from the judgment of the circuit court, after she was convicted of one count of First Degree Assault, in violation of Section 565.050 RSMo. (2000), and one count of Armed Criminal Action, in violation of Section 571.015. Cage waived her right to a jury trial, and she was convicted after a bench trial before the Honorable James Hartenbach. Cage was sentenced to concurrent terms of fifteen years imprisonment.

In her sole claim of error, Cage argues that the trial court erred in admitting her admissions to the police that she doused her husband with flaming gasoline, over her objection, because she did not knowingly, voluntarily, and intelligently waive her Miranda rights.

We have thoroughly reviewed the record and the briefs of the parties, and no error of law appears. Therefore, an opinion would have no precedential value. The judgment is affirmed pursuant to Rule 30.25(b).

      . All Statutory references are to RSMo. (2000).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Russell Dean RANKIN, Appellant, v. STATE of Missouri, Respondent.
    No. ED 85900.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 20, 2005.
    Amanda E. Schehr, Assistant Public Defender, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Attorney General, Alison K. Brown, Assistant Attorney General, 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.

Appellant, Russell Dean Rankin (“Mov-ant”), appeals the judgment of the Circuit Court of St. Louis County denying his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. Mov-ant was convicted of two counts of assault in the first degree, section 565.050, RSMo 2000, and two counts of possession with intent to distribute a controlled substance, section 195.211. Movant was sentenced to concurrent terms of six years imprisonment on each count. We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the judgment pursuant to Rule 84.16(b).

      . All statutory references are to RSMo 2000, unless otherwise indicated.


text:
    Sonja GADO, Appellant, v. Mokhtar GADO, Respondent.
    No. ED 86162.
    Missouri Court of Appeals, Eastern District, Division Four.
    Dec. 20, 2005.
    Jack F. Allen, Clayton, MO, for appellant.

      Randall D. Grady, St. Louis, MO, for respondent.
    Before NANNETTE A. BAKER, P.J., ROBERT G. DOWD, JR., J., and SHERRI B. SULLIVAN, J.
   ORDER

PER CURIAM.

Sonja Gado (“Wife”) appeals from judgment of the trial court sustaining Mokhtar Gado’s (“Husband”) motion to dismiss her petition in equity. Sonja claims that the trial court erred in dismissing her petition in equity with prejudice because it relied on an order from January 1982 that was not supported by any evidence. She further argues that the trial court erred in dismissing with prejudice her petition in equity because it failed to recognize that the 1980 decree was complete when issued and that the 1982 decree was a nullity because it was not supported by any evidence. We find no error and affirm.

No jurisprudential purpose would be served by a written opinion reciting the detailed facts and restating the principles of law. The parties have been furnished with a memorandum opinion for their information only, which sets forth the facts and reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b).

      . This court has reviewed Husband’s Motion for Damages against Wife for Frivolous Appeal Filing [sic] taken with the case. The motion is denied.


text:
    Floyd J. MAYHORN, Appellant, v. STATE of Missouri, Respondent.
    No. ED 86158.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 20, 2005.
    Kent Denzel, Assistant Public Defender, Columbia, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before MARY K. HOFF, P.J. and CLIFFORD H. AHRENS, J. and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

A jury convicted Movant of one count of second-degree drug trafficking, in violation of Section 195.223 RSMo 2000. The trial court sentenced Movant, as a prior offender, to five years’ imprisonment in the Missouri Department of Corrections. Movant appealed the judgment of his conviction and sentence in case number ED84116 but subsequently voluntarily dismissed his appeal. Movant thereafter timely filed his pro se and amended motions, pursuant to Rule 29.15, and waived an evidentiary hearing.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. The motion court’s findings of fact are not clearly erroneous. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would have no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    Belinda WILLIAMS, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 85990.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 20, 2005.
    Lisa M. Stroup, St. Louis, MO, for appellant.
    Deborah Daniels, St. Louis, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Movant, Belinda Williams, appeals from the judgment denying her Rule 29.15 motion without an evidentiary hearing. On appeal, movant argues that her trial counsel rendered ineffective assistance during cross-examination of movant’s daughter.

The motion court’s findings and conclusions are not clearly erroneous. Rule 29.15(k). An opinion would have no prece-dential value. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. The judgment is affirmed. Rule 84.16(b).


author: NANCY STEFFEN RAHMEYER, Judge.

text:
    Brian K. THOMAS, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26952.
    Missouri Court of Appeals, Southern District, Division One.
    Dec. 20, 2005.

      Ellen H. Flottman, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Ronald S. Ribaudo, Asst. Atty. Gen., Jefferson City, for Respondent.
   NANCY STEFFEN RAHMEYER, Judge.

Brian K. Thomas (“Movant”) brings this appeal from the denial without a hearing of his Rule 24.035 motion. His claim to the motion court was that his plea counsel failed to advise him that he would not get the benefit of his plea agreement if the State of Missouri (“the State”) did not promptly deliver him to the State of Arkansas for disposition of charges in Arkansas because the plea bargain and the sentence provided that Movant’s Missouri sentence would be concurrent to any sentence in Arkansas. The motion court denied his motion without conducting an evi-dentiary hearing. We find the denial to be proper; however, first, we address the claim by the State that Movant’s appeal was not timely filed.

The State claims Movant’s notice of appeal was not timely because the time provisions of Rule 75.01 and Rule 81.05(a) do not apply to a Rule 24.035 motion; specifically, the State claims per Rule 81.04(a) that an appeal must be brought within ten days from the denial of a Rule 24.035 motion and not forty days. The State arrives at this conclusion by an analysis of the language in Rule 24.035(k), which provides that a denial of a motion is “deemed a final judgment for purposes of appeal.” While acknowledging numerous cases which “assume — not hold — ” that the denial of the Rule 24.035 motion does not become final until thirty days after its entry, the State argues that Rule 75.01 does not apply to Rule 24.035 for purposes of determining a final judgment because Rule 24.035(k) explicitly states when a final judgment occurs, thus making it more specific than Rule 75.01. Although the State admits that the trial court would retain jurisdiction under Rule 75.01 to reopen a Rule 24.035 proceeding at any time during the thirty days following its ruling, it claims that it is illogical for Rule 75.01 to govern when an order on a 24.035 motion becomes final because that would in essence require two finalities — (1) the order becoming a “final” judgment per Rule 24.035(k), and then (2) that order becoming a final judgment again thirty days later per Rule 81.05. The State cites Rule 30.03 as further corroboration of its interpretation of Rules 24.035 and 81.04; Rule 30.03 operates when the “notice of appeal is not filed with the clerk of the trial court within ten days after the judgment becomes final.”

Finally, the State claims that Rule 75.01 refers to a “new trial” whereas Rule 24.035 refers to a “hearing” as a rationale for differentiating between when a final judgment is entered under Rule 24.035 and Rule 75.01. The State argues that “many in the legal community believe, consistent with the caselaw’s [sic] assumption, that after the disposition of a post[-]conviction motion the aggrieved party has 40 days during which to file a notice of appeal” and indicates fairness might dictate allowing Movant to appeal, but to hold that future notices of appeal must be filed within ten days of the motion court’s disposition of the post-conviction motion.

Regardless of the State’s willingness to allow this particular appeal as a fairness option, the timely filing of a notice of appeal is a jurisdictional requirement. McGee v. Allen, 929 S.W.2d 278, 280 (Mo.App. S.D.1996). If the appeal is not timely filed, we are without jurisdiction and must dismiss the appeal. State v. Lawrence, 139 S.W.3d 573, 576 (Mo.App. E.D.2004). Movant’s 24.035 motion was denied on March 16, 2005; the notice of appeal was filed on April 22, 2005, thirty-seven days after judgment was entered. We must ascertain whether the appeal was timely filed.

Rule 24.035(a) states, in pertinent part, “The procedure to be followed for motions filed pursuant to this Rule 24.035 is governed by the rules of civil procedure insofar as applicable.”

To determine whether a particular rule of civil procedure applies in the context of post-conviction review, the essential inquiry is whether the rule in question enhances, conflicts with, or is of neutral consequence to the purposes of the post-conviction rule. Nicholson v. State, 151 S.W.3d 369, 371 (Mo.banc 2004); Thomas v. State, 808 S.W.2d 364, 366 (Mo. banc 1991). If the civil rule enhances the purposes of the post-conviction rule or bears a neutral consequence, it applies. Id. If the rule hinders the purposes of the post-conviction rule, it should not apply. Id.

Lung v. State, 179 S.W.3d 337 (Mo.App. S.D., 2005).

As we noted in Lung, in a similar analysis of Rule 29.15,

The purpose of Rule 29.15 is to permit a person convicted of a felony, after trial, to challenge the conviction’s validity on the bases of claims that the conviction or sentence imposed violated the constitution and laws of this state or the constitution of the United States. Rule 29.15(a).... Post-convictions are not steps in criminal proceedings, but are means of testing the validity of a person’s detention after conviction. State v. Floyd, 403 S.W.2d 613, 614 (Mo.1966).

Id.

We conclude, as we did in Lung, that an application of Rules 75.01 and 81.05(a) to a Rule 24.035 proceeding enhances the purpose of Rule 24.035 in that

[I]t affords the same opportunity for review of a motion court’s ruling as is provided in other types of civil cases. It affords an opportunity for due process to litigants in post-conviction cases that is akin to other civil litigants. As such, it enhances the purposes of the post-conviction proceeding and bears neutral consequences on the merits of those cases.

Id. at 340. To hold that a movant must appeal the court’s order within ten days, and before the decision of the court is truly a final judgment, would not enhance the post conviction rule. Movant’s notice of appeal was timely filed in that it was filed within ten days following the judgment that denied Movant’s motion becoming final.

To be entitled to a hearing on a post-conviction motion, Movant must allege facts, not conclusions, that, if true, would entitle Movant to relief, the record must not refute these factual allegations, and Movant must have been prejudiced by the alleged error. White v. State, 939 S.W.2d 887, 893 (Mo. banc 1997).

The motion to vacate shall include every claim known to the movant for vacating, setting aside, or correcting the judgment or sentence. The movant shall declare in the motion that the movant has listed all claims for relief known to the movant and acknowledging the movant’s understanding that the movant waives any claim for relief known to the movant that is not listed in the motion.

Rule 24.035(d).

Movant claimed in his amended motion that his guilty plea was involuntary, unknowing, and unintelligent because (1) his plea counsel failed to investigate and advise him that by receiving an executed prison sentence in Missouri, he would be ineligible for a special “Boot Camp” program upon his plea of guilty to his pending charges in Arkansas and (2) his plea counsel failed to investigate and advise him that by being sentenced to prison in Missouri without inclusion of a provision for a timely return to Arkansas for disposition of his charges there, Movant would in effect be receiving a partial consecutive sentence. In short, the amended motion argues that post-conviction relief was warranted because Movant’s plea counsel was ineffective because he “failed” to properly advise Movant of the adverse effects of his guilty plea on his prison sentence. The amended motion never claimed that Mov-ant’s plea counsel misadvised him on the effects of his guilty plea and prison sentence in Missouri.

Movant’s point relied on in this Court, however, alleges that he was “misadvised” by counsel as to the effect of his guilty plea on his Arkansas charges and the concurrent Missouri and Arkansas sentences were material to the plea agreement. In his argument, Movant reverts to his claim to the motion court that “counsel did not tell him that without a provision for a timely return to Arkansas for disposition, the sentence there would not actually run concurrently.” He further states “[y]et no one told appellant, or even seemed to realize themselves, that while a sentence can be made to run concurrently with one that has not yet been imposed, Section 558.026.3, the judge has no authority over the foreign jurisdiction.”

There is a distinction between claiming ineffective assistance of counsel as it relates to a failure to advise as opposed to affirmatively providing misinformation. In Redeemer v. State, 979 S.W.2d 565 (Mo.App. W.D.1998), the court explained the dichotomy in the ineffective counsel claims when a plea counsel fails to advise his client as opposed to when he provides misinformation. A plea counsel has a duty to explain the possible consequences involved in a case with the defendant. Id. at 572. The counsel is, however, only obligated to inform the defendant of the “direct consequences” of a guilty plea. Id. The counsel has no obligation to inform the defendant of “collateral consequences” of the guilty plea. Id. Thus a counsel’s failure to advise the defendant of collateral consequences of a guilty plea does not rise to the level of ineffective assistance of counsel. Id.

A different rule applies when a defendant inquires as to a collateral consequence of his guilty plea and the plea counsel misinforms him. Id. Ineffective assistance of counsel may be present when a defendant inquires as to a collateral consequence of his guilty plea, his counsel misinforms him regarding that consequence, and the defendant relies upon the misrepresentation in deciding to plead guilty. Id.; see also, Fogle v. State, 124 S.W.3d 509, 511-12 (Mo.App. S.D.2004) (stating that whenever counsel misinforms a defendant regarding a consequence of a guilty plea and the defendant relies on that misrepresentation in deciding to plead guilty, the distinction between direct and collateral consequences of the guilty plea is not important).

Movant’s amended 24.035 motion claimed that his plea counsel was ineffective for failing to advise and failing to investigate all of the consequences of Mov-ant’s guilty plea. Nowhere in Movant’s amended motion does he claim that his plea counsel provided misinformation or misadvised him regarding a consequence of his guilty plea. Therefore, the motion court was only presented with the claim of failure to advise. The motion court had to take into consideration only the “direct consequences” of the plea in determining whether Movant should be granted a hearing on his amended 24.035 motion. We find that failing to advise Movant that he would not be eligible for a special boot camp program in Missouri and the effect of not having a provision in the plea agreement for the timely return of Movant to Arkansas to dispose of pending charges there were collateral consequences of Mov-ant’s guilty plea.

Furthermore, whether characterized as a direct or a collateral consequence of his plea, Movant’s allegations regarding the consequences of his guilty plea are clearly rebutted by the record. The following exchange occurred between the court and the attorneys after an extensive recitation by the court of Movant’s legal rights and Movant’s acknowledgement of those rights and a factual basis for the plea:

The Court: [Defense Counsel], do you know of any legal reason why the Court should not impose sentence today?
[Defense Counsel]: No, Your Honor, but I would like a small discussion on that before we do sentencing.
The Court: Very well.
[Defense Counsel]: It’s not an argument for sentencing or against sentencing.
[Movant] has currently pending charges in Arkansas. That Arkansas case does have a plea agreement. He just needs to get down there and take care of that. I know the State wouldn’t impose any kind of release on [Movant]. I would ask that you impose sentence, but I’m not sure how to get him down there the quickest to get it taken care of. I don’t know if that could happen before he goes into DOC or once he gets to DOC.
The Court: I’m not sure that I have any better information than you, [Defense counsel], on that. But we’ll certainly be happy to talk to the sheriffs department and find out if they are prepared to transport.
Or, [Prosecutor], wouldn’t you think that if we notified the Arkansas authorities that they’d probably send someone up to get [Movant]?
[Prosecutor]: It’s my understanding, Your Honor, that the Arkansas authorities have placed a hold on [Movant]. The Court: Right.
[Prosecutor]: And so whether he goes to the Department of Corrections or stays in our jail, it would be my understanding that they would come up and get him or writ him back from the Missouri Department of Corrections to the appropriate jurisdiction in Arkansas. I
don’t know that there’s anything that this Court or, really to be honest, anyone here in this room can do to assist [Movant] in that regard.
The Court: I think it’s up to the Arkansas folks.

(emphasis added).

It is clear from the proceedings that there is no merit to Movant’s claim, whether Movant characterizes it as misadvice or a failure to advise. Movant was fully advised by everyone present at the plea hearing that the Missouri court had no control over the decision by Arkansas authorities to return movant to Arkansas for disposition of Arkansas charges. Any alleged deficiency in this regard could not have affected the voluntariness of Mov-ant’s plea. The judgment denying Mov-ant’s Rule 24.035 motion is affirmed.

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

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

      . Rule 75.01 states:
      The trial court retains control over judgments during the thirty-day period after entry of judgment and may, after giving the parties an opportunity to be heard and for good cause, vacate, reopen, correct, amend, or modify its judgment within that time. Not later than thirty days after entry of judgment the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party, and every order granting a new trial shall specify the grounds therefor. After the filing of notice of appeal and before the filing of the record on appeal in the appellate court, the trial court, after the expiration of such thirty-day period, may still vacate, amend or modify its judgment upon stipulation of the parties accompanied by a withdrawal of the appeal.
      The thirty-day period after entry of judgment for granting a new trial of the court's own initiative is not shortened by the filing of a notice of appeal but is terminated when the record on appeal is filed in the appellate court.

      . Rule 81.05(a) states:
      (a) Finality as Affected by After-Trial Motions. For the purpose of ascertaining the time within which an appeal may be taken:
      (1) A judgment becomes final at the expiration of thirty days after its entry if no timely authorized after-trial motion is filed.
      (2) If a party timely files an authorized after-trial motion, the judgment becomes final at the earlier of the following:
      (A) Ninety days from the date the last timely motion was filed, on which date all motions not ruled shall be deemed overruled; or
      (B) If all motions have been ruled, then the date of ruling of the last motion to be ruled or thirty days after entry of judgment, whichever is later.
      (3)The filing and disposition of such motions has the same effect on time for appeal in all cases whether or not the motion has any function other than to seek relief in the trial court.

      . The State cites Rule 81.04(a) for its argument that Movant only had ten days to file his appeal; however, Rule 81.05(a) determines when a judgment is final. The finality of the judgment is the ultimate issue in this case.

      . See, e.g., State v. Mackin, 927 S.W.2d 553, 557 (Mo.App. S.D.1996); Swiney v. State, 27 S.W.3d 498, 499-500 (Mo.App. E.D.2000); Bell v. State, 164 S.W.3d 97 (Mo.App. E.D.2005); Bolden v. State, 106 S.W.3d 579, 580-81 (Mo.App. W.D.2003).

      . Rules 29.15 and 24.035 are interpreted in pari materia. Brown v. State, 66 S.W.3d 721, 730 (Mo.banc 2002). "It is a canon of construction that statutes that are in pari materia may be construed together, so that inconsistencies in one statute may be resolved by looking at another statute on the same subject.” Black’s Law Dictionary 807 (8th ed.2004).

      . A simple example of hindering the purposes of Rule 24.035 would be the situation where a moving court granted the Rule 24.035 motion; Movant would not file a notice of appeal if his motion had been granted. If the moving court had the authority to amend or change its judgment, on the eleventh day, the trial court could deny the motion and Movant would have no avenue of appeal.


text:
    STATE of Missouri, Respondent, v. Donald WARE, Appellant.
    No. ED 85146.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 20, 2005.
    Donald Ware, Charleston, MO, pro se.

      Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun J. Maekelprang, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before MARY K. HOFF, P.J. and CLIFFORD H. AHRENS, J. and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

Donald Ware (Defendant) appeals from the trial court’s order denying his post-conviction motion for DNA testing, pursuant to Section 547.045, RSMo Cum.Supp. 2004.

We have reviewed the briefs of the parties, the legal file, and the record on appeal and find the claims of error to be without merit. No error of law appears. An extended opinion reciting the detailed facts and restating the principles of law applicable to this case would serve no precedential value. The parties have been furnished with a memorandum for their information only, setting forth the reasons for our decision. We affirm the judgment pursuant to Rule 84.16(b).


text:
    Stanley L. WILLIAMS, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64423.
    Missouri Court of Appeals, Western District.
    Dec. 20, 2005.
    Susan L. Hogan, Appellate Defender, Kansas City, MO, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Lacey R. Searfoss, Assistant Attorney General, Jefferson City, MO, for Respondent.
    Before HOWARD, P.J., EDWIN H. SMITH, C.J., and NEWTON, J.
   Order

PER CURIAM.

Stanley L. Williams appeals from the denial, without an evidentiary hearing, of his Rule 29.15 motion for post-conviction relief, alleging ineffective assistance of counsel. After a jury trial in the Circuit Court of Jackson County, the appellant was convicted of one count of burglary in the first degree, in violation of § 569.160; one count of victim tampering, in violation of § 575.270.2; and one count of violating an order of protection, in violation of § 455.085. Pursuant to § 558.016, the appellant was sentenced as a prior and persistent offender to concurrent terms of imprisonment in the Missouri Department of Corrections of fifteen years and ten years on the burglary and victim tampering counts. On the conviction for violation of an order of protection, he was sentenced to one year in the Jackson County Department of Corrections, to be served concurrently with his sentences on the burglary and victim tampering counts.

The appellant raises what he asserts are two points on appeal. However, in reality, he raises four points, all of which claim that the motion court clearly erred in denying his Rule 29.15 motion, without an evidentiary hearing, alleging ineffective assistance of counsel. The appellant claims that the motion court clearly erred in denying his Rule 29.15 motion, without an evidentiary hearing, because the appellant alleged, in his motion, facts not refuted by the record, which clearly establish that he received ineffective assistance of counsel for his trial counsel’s failure: (1) to object to inadmissible hearsay testimony of a detective of the Kansas City Police Department concerning a conversation he had with the victim about death threats made against her by the appellant; (2) to object to the State’s opening statement referring to the fact that the victim had “a special phone for victims of domestic violence”; (3) to object to the State’s closing argument, with respect to the State’s proof as to an element of the tampering charge, concerning the trial court’s having taken judicial notice of the fact that the appellant had been charged with burglary; and, (4) to object to the State’s rebuttal closing argument concerning the appellant’s “propensity to commit the offenses charged, based on his prior convictions and arrests.”

We affirm pursuant to Rule 84.16(b).


text:
    STATE of Missouri, Respondent, v. Romell BRIDGES, Appellant.
    No. ED 84329.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 20, 2005.
    Michelle Murphy Rivera, St. Louis, MO, for Appellant.
    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.

Romell Bridges (hereinafter, “Defendant”) appeals from the trial court’s judgment after a jury convicted him of one count of robbery in the first degree, Section 569.020 RSMo (2000), one count of assault in the first degree, Section 565.050, two counts of armed criminal action, Section 571.015, and one count of possession of a controlled substance, Section 195.202. Defendant was sentenced to serve a total of thirteen years’ imprisonment on the robbery, assault, and armed criminal action charges, and seven years’ imprisonment on the possession of a controlled substance charge, running concurrently.

Defendant raises one point on appeal. Defendant argues the trial court erred in sustaining the State’s objection to his question to a police officer during cross-examination regarding the State’s failure to test Defendant for gunpowder residue.

We have reviewed the briefs of the parties, the legal file, and the transcript on appeal and find the trial court did not abuse its discretion. State v. Rutter, 93 S.W.3d 714, 729 (Mo. banc 2002). An opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. We have, however, provided a memorandum opinion, only for the use of the parties, setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 30.25(b).

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


text:
    STATE of Missouri, Respondent, v. Hardy Allen GRIFFIN, Appellant.
    No. ED 85675.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 20, 2005.
    Margaret Mueller Johnston, Columbia, MO, for Appellant.
    Deborah Daniels, 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.

Hardy Allen Griffin (hereinafter, “Defendant”) appeals from the trial court’s judgment after a jury found him guilty of murder in the first degree, Section 565.020 RSMo (2000), and armed criminal action, Section 571.015 RSMo (2000). Defendant was sentenced to serve life imprisonment without the possibility of parole for the murder charge and a life sentence on the armed criminal action charge, to run consecutively.

We have reviewed the briefs of the parties, the legal file, and the transcript on appeal and find the trial court did not abuse its discretion. State v. Rutter, 93 S.W.3d 714, 729 (Mo. banc 2002). An opinion reciting the detailed facts and restating the principles of law would have no prece-dential value. We have, however, provided a memorandum opinion, only for the use of the parties, setting forth the reasons for our decision. The judgment is affirmed pursuant to Rule 30.25(b).


author: PHILLIP R. GARRISON, Judge.

text:
    Gary Lynn BAKER, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26638.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 21, 2005.

      Margaret M. Johnston, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen. and Daniel N. McPherson, Assistant Attorney General, Jefferson City, for Respondent.
   PHILLIP R. GARRISON, Judge.

Gary Lynn Baker (“Movant”) was convicted by a jury of the class C felony of possession of a chemical with the intent to create a controlled substance in violation of Section 195.420, and was sentenced, as a prior and persistent offender, to twenty years imprisonment. The judgment was affirmed on direct appeal in State v. Baker, 103 S.W.3d 711 (Mo. banc 2003). Movant subsequently filed a pro se motion under Rule 29.15 to vacate, set aside or correct the judgment and sentence, which was later amended by appointed counsel, claiming ineffective assistance of both trial and appellate counsel. The motion court denied Movant’s claims following an eviden-tiary hearing. This appeal followed.

Appellate review of the denial of a Rule 29.15 motion is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 29.15(k); Knese v. State, 85 S.W.3d 628, 631 (Mo. banc 2002); Bewley v. State, 151 S.W.3d 151, 153 (Mo.App. S.D.2004). The findings and conclusions of the motion court are clearly erroneous only if, after a thorough review of the record, we are left with the definite and firm impression that a mistake has been made. Shockley v. State, 147 S.W.3d 189, 191 (Mo.App. S.D.2004).

The pertinent facts of the case are summarized as follows: On March 10, 2000, employees of a store in Clinton, Missouri, informed Officer Amy Huber of the South Central Drug Task Force that Movant had purchased a large quantity of matchbooks. The striker plates on matchbooks are a source of red phosphorous, a substance needed to produce methamphetamine. Sergeant James Wingo, a narcotics investigator with the Missouri Highway Patrol Division of Crime and Drug Control, requested and was granted a warrant to search the residence where Movant was living.

The warrant was executed on March 10, 2000, at a two-story building formerly used as a restaurant and which had been partially converted into a residence. Entry into the building was initially attempted by Corporal Bruce Houston with a battering ram while yelling that it was the Highway Patrol, but when this was not successful, he gained entry through a window and unlocked a door permitting other officers to enter.

The officers found two individuals in the building, including Vicki Gary, the owner of the residence. They did not initially find Movant, however. When they searched an upstairs bedroom they found the lights on; a small glass jar with a white powder and liquid solution, which was later identified as pseudoephedrine; a bottle of ephedrine pills; a bottle of pills containing pseudoephedrine; a receipt from Wal-Mart dated February 24, 2000, for four packages of pseudoephedrine; a bag of matchbook strike plates; a bottle of Heet; a pocket propane torch; a razor blade; a plastic bag; a can of butane; funnels; two bottles of Coleman propane; a bottle of muriatic acid; two bottles of Red Devil lye; triple beam scales which are used to measure grams; a bottle of Vitablend that is often used as a cutting agent to cut drugs; several small Ziploc bags on top of the scale; funnel filters; disposable gloves; small glass bottle of acid in a refrigerator; a hot plate or skillet that was turned on and was hot with a can of acetone beside it; and a microwave. There was testimony that hot plates and microwaves are sometimes used in the production of drugs as heat sources for the evaporation of solvents and liquids. There was testimony that these items could be, and often were, used in the making of methamphetamine. Also found in the upstairs room was a dresser with men’s underwear, camouflage clothing similar to that which Movant had recently been seen wearing, and a letter addressed to Movant at that address. Additional items commonly used in the production of methamphetamine were found in other parts of the residence.

The officers also noticed what appeared to be a “cubbyhole” cover in the ceiling of the upstairs room with rungs sticking out of the wall like steps next to the electric skillet. Noticing that the “cubbyhole” cover was not squarely on, and suspecting that Movant was hiding there, officers threw a lighting device up into the “cubbyhole” at which time Movant acknowledged his presence and eventually came down where he was arrested. He was subsequently charged with the class C felony of creation of a controlled substance in violation of Sections 558.011.1(3) and 560.011 in that he knowingly possessed specified precursor ingredients, with the intent to create methamphetamine, a controlled substance.

Prior to trial (October 19, 2000) the State filed a motion to endorse additional witnesses, including Sarah Brewer (“Brewer”). That motion was taken up by the trial court on the morning of the first day of trial on December 12, 2000. The trial court sustained the motion after Movant’s counsel stated that he was aware of what her testimony would be, but that he was objecting to her endorsement because the matters she would testify to occurred over a year before the incident with which Mov-ant was charged, and was so remote in time that it would be “totally irrelevant.”

Brewer testified at trial, without objection from Movant’s counsel. She had pled guilty to possession of methamphetamine as a result of an incident in March 1999 when her house was searched and another person was found to be manufacturing methamphetamine there. She had agreed to testify against Movant in exchange for a reduction in the charge against her from manufacturing to possession. She testified that she had known Movant for about four years and that he was knowledgeable about methamphetamine and had told her that he knew how to make it or was in the process of learning how to do so. She said that on the day she was arrested in 1999, Movant had been to her house and, knowing that it was used in making methamphetamine, had brought five or six boxes of pseudoephredrine to trade for some methamphetamine. •

In his first of two points on appeal, Movant contends that the motion court erred in denying his claim that his trial counsel was ineffective for failing to object to, or move to exclude, the testimony of Brewer “in that Brewer’s testimony that [Movant] bought methamphetamine and was learning how to make it in March 1999 did not show motive and intent, plan or scheme, or lack of mistake on March 10, 2000, and was highly prejudicial evidence of other crimes.”

Trial counsel’s performance is presumed to be effective and therefore, Movant bears the burden of overcoming that presumption by a preponderance of the evidence. Rule 29.15(i); Nicklasson v. State, 105 S.W.3d 482, 484 (Mo. banc 2003); State v. Tokar, 918 S.W.2d 753, 761 (Mo. banc 1996). In order for Movant to prevail on his ineffective assistance of counsel claim, he must first demonstrate that his trial counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances. Crooks v. State, 131 S.W.3d 407, 409 (Mo.App. S.D.2004). Second, he must demonstrate that not only was his trial counsel ineffective, but that he was prejudiced by trial counsel’s poor performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984). “Prejudice is shown where ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ ” Crooks, 131 S.W.3d at 409 (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052). If Movant fails to satisfy either prong, relief will be denied. State v. Simmons, 955 S.W.2d 752, 772 (Mo. banc 1997); Wright v. State, 125 S.W.3d 861, 866 (Mo.App. S.D.2003).

Movant cannot base a claim of ineffective assistance on reasonable choices of trial strategy. Knese, 85 S.W.3d at 631. Therefore, in attempting to satisfy the first prong of the test, Movant must overcome the presumption that the challenged action was a decision appropriately made in the exercise of professional judgment. Jameson v. State, 125 S.W.3d 885, 890 (Mo.App. E.D.2004). “Strategic choices made after a thorough investigation of the law and the facts relevant to plausible opinions are virtually unchallengeable.” Tokar, 918 S.W.2d at 761, (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052). In reviewing trial strategy, we evaluate the conduct of counsel from his perspective at the time of the conduct. State v. Light, 835 S.W.2d 933, 940 (Mo.App. E.D.1992).

Movant had alleged, in his Rule 29.15 motion that counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would have exercised under similar circumstances by not objecting to or moving to exclude Brewer’s testimony, and that as a result, he was prejudiced. He argued that the testimony about what Movant said to Brewer was “remote in time and unreliable”; that its prejudicial effect outweighed its probative value; that had counsel made a proper objection to the testimony, a reasonable probability existed that the trial court would have sustained the objection; and if the jury had not been exposed to the testimony, there was a reasonable probability that it would have found reasonable doubt about Movant’s intent to manufacture methamphetamine.

In denying Movant’s claim after an evi-dentiary hearing, the motion court acknowledged that evidence of other crimes is generally not admissible to prove commission of the crime charged, but the evidence went to Movant’s motive and intent, his plan or scheme, and lack of mistake. It also held that the probative value of the evidence outweighed the prejudicial effect.

Initially, we note that while evidence of uncharged crimes, wrongs or acts is inadmissible to show a propensity to commit such crimes, evidence of other uncharged misconduct has a legitimate tendency to prove the specific crime charged when it tends to establish motive, intent, absence of mistake or accident, a common scheme or plan, or identity. State v. Bernard, 849 S.W.2d 10, 13 (Mo. banc 1993). Here, Movant argues that Brewer’s testimony did not establish that he possessed a chemical with the intent to manufacture methamphetamine in March 2000, and that “[t]he real issue was not what [he] intended to do with the chemicals, but whether he even possessed them in the first place.” Intent, however, was an element of the offense with which Movant was charged and which was submitted to the jury.

Additionally, as indicated earlier, Movant had the burden of overcoming the presumption that counsel’s actions at trial were in the exercise of appropriate professional judgment. Here, Movant presented no evidence at the evidentiary hearing concerning counsel’s alleged ineffectiveness in failing to object or move to strike Brewer’s testimony. Allegations in a Rule 29.15 motion are not self-proving, and a movant has the burden of proving the grounds asserted. State v. Vincent, 785 S.W.2d 805, 812 (Mo.App. S.D.1990). Where a movant fails to offer evidence at the post-conviction evidentiary hearing as to why counsel failed to object, he has failed to demonstrate that the failure was not valid trial strategy. State v. Kreutzer, 928 S.W.2d 854, 874-75 (Mo. banc 1996). This point is without merit and is denied.

In his final point on appeal, Mov-ant contends that the motion court clearly erred in denying his post-conviction claim that his appellate counsel was ineffective for failing to raise on appeal the trial court’s error in overruling his motion for new trial allegation that there was insufficient evidence to convict him of possession of a chemical with the intent to create a controlled substance. He argues that the evidence at trial was that three people lived in the residence, chemicals were found throughout the residence, and there was no evidence that he consciously and intentionally possessed the chemicals or intended to manufacture methamphetamine with them. He says that a competent and effective lawyer would have recognized that there was insufficient evidence to support his conviction and would have raised that issue on direct appeal.

The standard for establishing ineffectiveness of appellate counsel is high. Middleton v. State, 80 S.W.3d 799, 808 (Mo. banc 2002). To support a Rule 29.15 motion on that basis, strong grounds must exist showing that counsel failed to assert a claim of error that would have required reversal had it been asserted and that was so obvious from the record that a competent and effective lawyer would have recognized it and asserted it. Id. The right to relief for ineffective assistance of appellate counsel tracks the plain error rule requiring that error that was not raised on appeal was so substantial as to amount to a manifest injustice or miscarriage of justice. Id.

Movant first challenges the finding of the motion court that the issue raised in his 29.15 motion was not raised in his motion for new trial, hence there was no error in failing to grant a new trial on a ground not presented. His motion for new trial alleged that the trial court erred in denying his motion for a directed verdict at the close of the State’s case and at the close of all the evidence because there was insufficient evidence presented that he possessed methanol, hydrogen peroxide, lighter fluid, naphtha, muriatic acid, pseu-doephrediine, ephedrine, or acetone. He also alleged that “[j]oint or multiple control of premises requires further evidence connecting [Movant] with the items alleged to be in his possession.” One of the allegations in Movant’s amended 29.15 motion was that counsel failed to raise on appeal, the trial court’s error in denying the motion for new trial “in that the evidence was insufficient to convict [MJovant of creation of a controlled substance.” In overruling Movant’s 29.15 motion, the motion court held that Movant did not raise that issue in the motion for new trial, hence there was no error in not granting a new trial on a ground not presented.

The discrepancy between the allegations in the motion for new trial and those in the amended 29.15 motion is not dispositive of the issue raised in this point. Rule 29.11(d) provides that in a jury-tried case, to be preserved for appellate review, a motion for new trial need not include questions as to the sufficiency of the evidence to sustain the conviction. Accordingly, the sufficiency of the evidence could have been raised on appeal even if it had not been raised in the motion for new trial.

Beyond that, however, Movant’s complaint in his amended 29.15 motion related to the insufficiency of the evidence to convict him of “creation of a controlled substance.” In contrast, his point on this appeal complains of counsel’s failure to raise an issue on appeal about the insufficiency of the evidence to convict him “of possession of a chemical with the intent to create a controlled substance.” “Claims that have not been presented to the motion court cannot be raised for the first time on appeal.” Rhodes v. State, 157 S.W.3d 309, 314 (Mo.App. S.D.2005) (quoting Dean v. State, 950 S.W.2d 873, 877 (Mo.App. W.D.1997)).

This point is without merit for additional reasons. Like the prior point, no evidence was presented at the evidentiary hearing in support of this contention. The failure to do so results in a movant not meeting his burden of showing that counsel was ineffective under the Strickland standard. Kreutzer, 928 S.W.2d at 874-75.

Finally, in addition to the above reasons why this point is without merit, we note that had the issue been raised on appeal, the appellate court would have been bound, in reviewing for the sufficiency of the evidence, to consider the evidence most favorable to the verdict, accepting as true any evidence supporting the verdict while disregarding any contrary evidence of inferences. Hill v. State, 160 S.W.3d 855, 859 (Mo.App. S.D.2005). Under that standard and considering the evidence outlined at the beginning of this opinion, we are unable to conclude that had the matter been raised on appeal, it would have required a reversal. Accordingly, we are unable to find prejudice from the deficiency alleged by Movant. This point is denied.

The judgment is affirmed.

BATES, C.J., and SHRUM, P.J., concur.

      . All references to statutes are to RSMo (2000) and all rule references are to Missouri Rules of Criminal Procedure (2004), unless otherwise indicated.


author: JEFFREY W. BATES, Chief Judge.

text:
    Robert SHEEDY, Jr. and Sharon Sheedy, Husband and Wife, Plaintiffs-Appellants, v. MISSOURI HIGHWAYS AND TRANSPORTATION COMMISSION, Defendant-Respondent.
    No. 26893.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 21, 2005.

      John M. Albright, Poplar Bluff, MO, for Appellants.
    Michael L. Jackson, John W. Koenig, Jr. and Rich Tiemeyer, Sikeston, MO, for Respondent.
   JEFFREY W. BATES, Chief Judge.

Plaintiffs Robert and Sharon Sheedy (“the Sheedys”) appeal from a summary judgment in favor of Defendant Missouri Highways and Transportation Commission (“the Commission”). The instant lawsuit arose after the Commission brought an action to condemn some of the Sheedys’ real estate for an expansion of Highway 60. The area to be condemned excluded a parcel of land, approximately 1.2 acres in size, which the Sheedys’ predecessors in title had conveyed to the Commission by quit-claim deed in 1929 to serve as a highway right-of-way. Based on this prior conveyance, the Commission contended that it was not required to condemn the 1.2 acre tract because it had already purchased, and continued to possess, an easement interest in this land.

In response, the Sheedys filed a lawsuit challenging the Commission’s position that it currently possessed an easement over the 1.2 acre tract. Relying on § 228.190, the Sheedys claimed the Commission had abandoned its easement through five years of nonuse. The Commission and the Sheedys filed cross-motions for summary judgment. The trial court decided § 228.190 does not apply to state highways and granted summary judgment to the Commission. On appeal, the Sheedys challenge that ruling; alternatively, they request that the ease be remanded so they can proceed on a theory of common law abandonment. Finding no merit in either argument, we affirm the trial court’s judgment.

I. Facts and Procedural History

This case involves a segment of Highway 60 in Carter County, Missouri, that was constructed over seventy years ago. On June 29, 1929, the Commission paid $550 to the Sheedys’ predecessors in title to purchase a right-of-way for a state highway. The Commission’s right-of-way interest in this land was conveyed by way of a quit-claim deed. The deed, which was titled “CONVEYANCE OF RIGHT OF WAY,” granted the Commission an easement interest in this 1.2 acre tract of land. See Ogg v. Mediacom, L.L.C., 142 S.W.3d 801, 811-12 (Mo.App.2004) (quitclaim deed titled “RIGHT OF WAY DEED” conveyed an easement for state highway right-of-way purposes); Hartman v. J & A Dev. Co., 672 S.W.2d 364, 365 (Mo.App.1984) (the use of terms such as “right of way,” “road,” or “roadway” as a limitation on the use of land is a strong, almost conclusive indication that the interest conveyed is an easement).

At some point in time prior to 1986, the intersection of Highway 60 and Highway A was rebuilt in such a fashion that the disputed 1.2 acre tract became an unused roadbed. This portion of the old highway ran about 200 feet from Highway A to a dead end about 75 feet from the new location of Highway 60. In 1986, the Sheedys purchased the property on which the roadbed lies. The public has not used the old roadbed at any time since the Sheedys acquired the property. Robert Sheedy, who makes his living as a truck driver, utilized the roadbed as a place to park his tractor-trailer unit when he was not on the road.

In 2003, Defendant filed an action to condemn other portions of the Sheedys’ property for the purpose of expanding Highway 60 into a four-lane highway. The Commission did not seek to condemn the 1.2 acres on which the unused roadbed lies. The Commission claimed it still had the right to use the easement it purchased in 1929 for the same purpose; i.e., a highway right-of-way. Thereafter, the Sheedys filed a multi-count lawsuit against the Commission. The Sheedys’ petition included counts for declaratory relief, ejectment, inverse condemnation, quiet title and trespass. All of the requests for relief in the Sheedys’ petition were based on the premise that the Commission had abandoned its easement by operation of law pursuant to § 228.190, which states:

All roads in this state that have been established by any order of the county commission, and have been used as public highways for a period of ten years or more, shall be deemed legally established public roads; and all roads that have been used as such by the public for ten years continuously, and upon which there shall have been expended public money or labor for such period, shall be deemed legally established roads; and nonuse by the public for five years continuously of any public road shall be deemed an abandonment and vacation of same.

Although the first sentence of this statute limits its application to roads established by order of a county commission, the Sheedys claimed the five-year nonuser provision contained therein applies to state highways. The Sheedys’ contention was based on § 227.090, which states:

All laws of this state relating to the construction, maintenance or obstruction of roads, which do not conflict with the provisions of chapters 226 and 227, RSMo, and are consistent with the provisions of said chapters, shall apply to the construction, maintenance and obstruction of all state highways, and the duties and powers imposed by such laws on certain officials shall devolve upon the engineer, or other officer of the highways and transportation commission designated by the commission.

The Commission disputed the Sheedys’ contention that § 228.190 applies to state highways.

The Commission and the Sheedys filed cross-motions for summary judgment presenting this legal, issue for the trial court to resolve. In the Sheedys’ response to the Commission’s motion, they admitted that “their claims in each count of the petition are only dependent of the application of § 228.190 to the property and/or property rights owned by [the Commission].” In the Sheedys’ suggestions opposing the Commission’s motion, they agreed that “the entire case hinges on whether § 227.090 makes § 228.190 applicable to State highways.” In the Sheedys’ own motion, they stated that “the undisputed facts as set forth below establish that they are entitled to judgment as a matter of law as the road on their property was abandoned by non-use by the public for five years as provided for in § 228.190.” They repeated their admission that they were not entitled to relief on any count of their petition unless § 228.190 applies to state highways.

The judge ruled that issue against the Sheedys. The court decided § 228.190 did not apply to state highways because this statute was not a law “relating to the construction, maintenance or obstruction of roads.” The court entered summary judgment for the Commission, and the Sheedys appealed.

II. Standard of Review

In the Sheedys’ lawsuit, the Commission was the defending party as that term is defined by Rule 74.04(b). A defending party “may establish a right to summary judgment by showing: (1) facts negating any one of the claimant’s elements; (2) that the party opposing the motion has presented insufficient evidence to allow the finding of the existence of any one of the claimant’s elements; or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support a properly pleaded affirmative defense.” Ameristar Jet Charter, Inc. v. Dodson Intern. Parts, Inc., 155 S.W.3d 50, 58-59 (Mo. banc 2005).

The Commission moved for summary judgment on the ground that it had not abandoned its easement interest in the 1.2 acre tract of land. The Sheedys’ response to that motion admitted they were not entitled to relief on any of the five counts in their petition unless § 228.190 applies to state highways, resulting in an abandonment of the Commission’s easement interest by operation of law. Thus, the Commission sought to establish its right to summary judgment by the first method listed above: negating the essential element of abandonment. The material facts relevant to this legal issue are not in dispute. The trial court decided the issue in favor of the Commission.

For reasons to be stated anon, the only question properly presented by the Sheedys’ appeal is whether § 228.190 applies to state highways. Since there is no genuine issue as to any material fact pertinent to this question, we are presented with an issue of law to decide. See City of Springfield v. Gee, 149 S.W.3d 609, 612 (Mo.App.2004). We review the trial court’s determination of that legal issue de novo without any deference to how the question was decided below. Bumm v. Olde Ivy Development, LLC, 142 S.W.3d 895, 896-97 (Mo.App.2004). Our task is to determine whether the Commission, as the party moving for summary judgment, was entitled to judgment as a matter of law. Rule 74.04(c)(6); A & E Enterprises, Inc. v. Clairsin, Inc., 169 S.W.3d 884, 886 (Mo.App.2005).

III. Discussion and Decision

In the court below, the Sheedys presented only one theory for the trial court’s consideration. They argued that § 228.190 applies to state highways as well as county roads; consequently, by not using the easement for five years, the Commission abandoned its interest in that property by operation of law. On appeal, the Sheedys have substantially modified their position. The Sheedys’ point relied on asserts that, even if the trial court was correct in concluding that § 228.190 does not apply to state highways, we should remand the case so they can proceed anew on a theory of common law abandonment. Accordingly, our first task in treading out the grain of this appeal is to decide whether the Sheedys may rely on a new theory, advanced for the first time on appeal, to overturn the trial court’s judgment.

We begin by noting that appellate review of a decision to grant summary judgment is limited to the issues put before the trial court. Barner v. The Missouri Gaming Co., 48 S.W.3d 46, 50 (Mo.App.2001); Country Mut. Ins. Co. v. Matney, 25 S.W.3d 651, 654 (Mo.App.2000). “An issue not presented to the trial court is not preserved for appellate review.” Barner, 48 S.W.3d at 50. Thus, a party is bound by the position he or she took in the trial court, and we can review the case only upon those theories. City of Cuba v. Williams, 17 S.W.3d 630, 632 (Mo.App.2000); Scott v. Edwards Transp. Co., 889 S.W.2d 144, 147 (Mo.App.1994). On review, an appellate court will not convict a trial court of error based on an issue which was not put before it to decide. Lincoln Credit Co. v. Peach, 636 S.W.2d 31, 36 (Mo. banc 1982); Sisk v. McIlroy and Associates, 934 S.W.2d 567, 574 (Mo.App.1996).

The Sheedys’ argument is based on a fundamental misconception of what the trial court did when it granted the Commission’s motion for summary judgment. According to the Sheedys, all the trial court did was dismiss their petition. Ergo, remand is required so they can proceed on a theory of common law abandonment since the allegations of their petition are broad enough to encompass this additional legal theory. We reject this assertion. In McGlothin v. Eidelman & Traub, Inc., 733 S.W.2d 851 (Mo.App.1987), the plaintiffs sued a group of dentists and their attorney for wrongful garnishment and abuse of process. After the defendants were granted summary judgment, plaintiffs appealed. They argued that the trial court should not have granted summary judgment because the plaintiffs’ petition was broad enough to state a cause of action for prima facie tort. The summary judgment in favor of defendants was affirmed because the plaintiffs’ prima facie tort theory of recovery was not raised or decided below:

We first address the procedural aspects of plaintiffs’ allegation of error. At the hearing on the motions for summary judgment, plaintiffs took the position that they were proceeding solely on a wrongful garnishment theory. Based on that, the trial court granted summary judgment in favor of defendants. A hearing on a motion for summary judgment is a trial before the court without a jury. Summary judgment constitutes a final judgment on the merits and constitutes a bar to future litigation on the same cause of action. Further, having pursued a remedial right to judgment on one theory, a party is barred from subsequently pursuing an inconsistent remedial theory. On appeal, a party is bound by the position he took in trial court; and the appellate court can review the case only upon the theory tried. In the present case, plaintiffs elected to proceed in the trial court only on the theory of wrongful garnishment. On appeal, they disavow any other theory except prima facie tort. The prima facie tort theory was not raised or considered by the trial court. Plaintiffs are foreclosed from now raising a theory different from the theory considered and rejected by the trial court.

Id. at 853 (citations omitted). McGlothin is directly on point and forecloses appellate review of the Sheedys’ argument that the case should be remanded so they can proceed on a theory of common law abandonment.

The threshing process is further complicated by the fact that the Commission also seeks to present a new defensive theory for the first time on appeal. The Commission, however, does so for the purpose of advancing a new ground to affirm the trial court’s judgment. Unlike an appellant, a respondent in a court-tried case is permitted to raise a new theory on appeal, but only for the purpose of sustaining a favorable judgment. See, e.g., American Standard Ins. Co. of Wisconsin v. May, 972 S.W.2d 595, 601 (Mo.App.1998) (in a court-tried case, an appellate court is required to affirm the trial court’s judgment if it is correct on any reasonable theory which is consistent with the pleadings and is supported by the evidence, regardless of the theory of recovery or defense relied upon by the respondent at trial); McKnight v. Midwest Eye Institute of Kansas City, Inc., 799 S.W.2d 909, 919 (Mo.App.1990) (a respondent who does not cross-appeal may defend the favorable judgment with any argument supported by the record). Therefore, we will consider the Commission’s argument.

The Commission correctly points out that the warranty deed conveying the property to the Sheedys granted them fee simple ownership of the real estate “excepting therefrom 1.2 acres, more or less, for easement for Right-of-way for old U.S. Highway NO. 60-” The Commission contended this language means the Sheed-ys did not own the reversionary interest in the 1.2 acre tract. We find no merit in this assertion. The aforementioned exception simply means the Sheedys acquired a fee simple interest in that 1.2 acres, subject to the easement held by the Commission. See Cravens v. Jolly, 623 S.W.2d 569, 572 (Mo.App.1981) (holding that “a grant of land with full covenants of warranty, which definitely describes the land conveyed, and then excepts or reserves a roadway for the use of the public, or a railroad or other right of way, as such, occupying a mere easement on, over, or across the land conveyed, conveys the fee to the entire tract subject to the easement reserved”); 26A C.J.S. Deeds § 277 (2001). Therefore, the Sheedys do own the rever-sionary interest in the 1.2 acre tract that is burdened by the Commission’s easement.

Having winnowed out the chaff from the wheat, we now turn to the dispos-itive question in this appeal: whether § 227.090 makes the provisions of § 228.190 applicable to state highways. Construction of this statute presents a question of law, which we review de novo. Delta Air Lines, Inc. v. Director of Revenue, 908 S.W.2d 353, 355 (Mo. banc 1995); Hadel v. Board of Educ. of School Dist. of Springfield, R-12, 990 S.W.2d 107, 111 (Mo.App.1999). The purpose of statutory construction is to ascertain the legislature’s intent from the language used and to give effect to that intent. State ex rel. Riordan v. Dierker, 956 S.W.2d 258, 260 (Mo. banc 1997); Hadel, 990 S.W.2d at 111; City of Ellisville v. Lohman, 972 S.W.2d 527, 534 (Mo.App.1998). We read statutes in their plain, ordinary and usual sense. Bosworth v. Sewell, 918 S.W.2d 773, 777 (Mo. banc 1996). Where there is no ambiguity, we will not resort to statutory construction. Id. In addition, “[t]his Court must avoid interpretations that are unjust, absurd, or unreasonable. Accordingly, we consider the statute in the context of the entire statutory scheme on the same subject in order to discern legislative intent.” Benoit v. Missouri Highway and Transp. Comm’n, 33 S.W.3d 663, 673-74 (Mo.App.2000) (citations omitted).

Our analysis commences, as it must, with an examination of the text of § 227.090. It states:

All laws of this state relating to the construction, maintenance or obstruction of roads, which do not conflict with the provisions of chapters 226 and 227, RSMo, and are consistent with the provisions of said chapters, shall apply to the construction, maintenance and obstruction of all state highways, and the duties and powers imposed by such laws on certain officials shall devolve upon the engineer, or other officer of the highways and transportation commission designated by the commission.

It is immediately apparent that § 228.190 does not apply to state highways unless two prerequisites are met: (1) this law must relate to “the construction, maintenance or obstruction of roads”; and (2) this law must not conflict or be inconsistent with the provisions of Chapters 226 and 227. To evaluate the Sheedys’ argument, we must see whether each prerequisite is satisfied in the case at bar.

We note that the terms “construction,” “maintenance” or “obstruction” are not statutorily defined in § 227.090 or elsewhere in Chapter 227. “When a term is undefined, the legislature is presumed to intend that the term be used in its plain and ordinary meaning according to the dictionary.” Tendai v. Missouri State Bd. of Registration for Healing Arts, 161 S.W.Sd 358, 366 (Mo. banc 2005); Asbury v. Lombardi, 846 S.W.2d 196, 201 (Mo. banc 1993). In the respects pertinent here, Black’s Law Dictionary (8th ed.2004) defines these terms in the following way:

construction: “The act of building by combining or arranging parts or elements; the thing so built.” Id. at 332.
maintenance: “The care and work put into property to keep it operating and productive; general repair and upkeep.” Id. at 973.
obstruction: “Something that impedes or hinders, as in a street, river, or design; an obstacle. The act of impeding or hindering something; interference.” Id. at 1107.

As these definitions make clear, § 227.090 makes applicable to state highways only those statutes dealing with the physical processes of building, keeping up and clearing roads. An examination of the text of § 228.190 demonstrates that it is not this type of statute at all. It states:

All roads in this state that have been established by any order of the county commission, and have been used as public highways for a period of ten years or more, shall be deemed legally established public roads; and all roads that have been used as such by the public for ten years continuously, and upon which there shall have been expended public money or labor for such period, shall be deemed legally established roads; and nonuse by the public for five years continuously of any public road shall be deemed an abandonment and vacation of same.

As used in this statute, the word “established” refers to the location and boundaries of the road. See § 228.010. The words “abandonment” and “vacation” are undefined in § 228.190 or in Chapter 228, so we look again to the definitions of those words found in Blaok’s Law DiCtionaey. See Spradlin v. City of Fulton, 982 S.W.2d 255, 262 (Mo. banc 1998); Hadel v. Board of Educ. of School Dist. of Springfield, R-12, 990 S.W.2d 107, 112 (Mo.App.1999). In the respect pertinent here, “abandonment” means “[t]he relinquishing of a right or interest with the intention of never again claiming it.” Black’s Law Dictionary 2 (8th ed.2004). “Vacation” is defined by the same source as “[t]he act of vacating.” Id. at 1584. In the respect pertinent here, “vacate” means “[t]o surrender occupancy or possession; to move out or leave.” Id. Thus, § 228.190 is solely concerned with the legal means by which a county road can be established, vacated or abandoned. Like the trial court, we conclude that § 228.190 is not a law “relating to the construction, maintenance or obstruction of roads.”

The result we reach today was foreshadowed by our discussion of this same issue in Harrison v. State Highways and Transp. Comm’n, 732 S.W.2d 214 (Mo.App.1987). There, the appellants argued that the Commission had abandoned its easement interest in a temporary borrow pit through almost 25 years of nonuse. To support that argument, the appellants contended that § 228.190 would govern the time frame for abandoning an easement interest in a state highway, and the same five-year time frame should be applied to the temporary borrow pit. We held that § 228.190 did not apply to the borrow pit because it did not constitute a public road. In dicta, we also made the following observation which we find apropos to the case at bar:

Plaintiffs have cited no case where § 228.190 has been held applicable to the abandonment of a state highway. Plaintiffs claim that § 227.090 has the effect of making the five-year nonuser portion of § 228.190 applicable to a state highway. It is at least arguable that § 227.090 does not have that effect. That statute deals with all laws of this state relating to the “construction, maintenance or obstruction of roads....” It is arguable that nonuser of a highway is not “construction” or “maintenance” or “obstruction” of a highway.

Id. at 220 (emphasis in original). Since Harrison was decided, there still has been no Missouri appellate decision holding that § 228.190 applies to the abandonment of an easement interest in a state highway. Further, for the reasons already discussed, we agree with Judge Flanigan’s view that the nonuser provision in § 228.190 does not relate at all to the construction, maintenance or obstruction of roads.

The Sheedys’ argument that § 228.190 applies to state highways fails for a second reason as well. In reviewing the trial court’s grant of summary judgment to the Commission, we are required to affirm the judgment if it is sustainable as a matter of law on any reasonable theory. Harmon v. Headley, 95 S.W.3d 154, 157 (Mo.App.2003); S & P Oyster Co., Inc. v. U.S. Fidelity and Guar. Co., 865 S.W.2d 379, 381 (Mo.App.1993); Baker v. Baker, 813 S.W.2d 116, 119 (Mo.App.1991). Although not addressed by the trial court, we find merit in the Commission’s alternative argument that the nonuser provision in § 228.190 cannot apply to a state highway because it conflicts with Chapter 227.

As previously mentioned, § 227.090 does not authorize another law to be applied to a state highway if doing so would be in conflict or inconsistent with Chapters 226 or 227. The gist of the Sheedys’ argument is that § 228.190 would permit the Commission’s state highway easement interest to be abandoned by operation of law after five years of nonuse. This interpretation of § 228.190 would place it in conflict with the provisions of Chapter 227.

Chapter 227, which established the state highway system, specifically prescribes the location of state highways in each county of the state. See § 227.020. The state is only permitted to abandon a portion of a prescribed state highway when “the construction or operation of any waterpower and/or hydroelectric project results in the inundation of any portion of a state highway....” § 227.270. We also note that § 227.290 generally requires the sale of interests in land previously acquired by the Commission that are no longer useful:

Whenever in the opinion of the state highways and transportation commission the advantageous use of any interest in land or any leasehold which has heretofore or may hereafter be acquired by the commission has ceased, the state highways and transportation commission shall have authority to convey the same for the best available cash price by deed signed by its chairman or vice chairman and attested by its secretary; provided, however, that before any sale shall be consummated under this section, the grantor to the state of the property offered for sale, if real estate, and if such grantor shall at the time be in possession of the adjoining land, shall be notified by written notice of the state transportation department, of such contemplated sale; provided, that all moneys received from the disposal of any such interest in land or leasehold shall be deposited in the state treasury to the credit of the state road fund; provided further, that when any land or leasehold herein described has been donated without charge whatsoever, by the owner and grantor of said property to the purpose of state highway construction or maintenance and such grantor is still in possession of contiguous property, the same shall revert to such original owner without cost to him if and when relinquished by the state.

Thus, if a previously-acquired interest in land is no longer useful, this statute gives the Commission the discretionary authority to sell that interest for the best available cash price. A & E Enterprises, Inc. v. Clairsin, Inc., 169 S.W.3d 884, 886-87 (Mo.App.2005); Miller v. Missouri Dept. of Transp., 97 S.W.3d 478, 482 (Mo.App.2002). The money derived from such a sale is deposited in the state road fund. Sale of the interest is prohibited only if the owner donated the land and such owner is still in possession of contiguous property. In that instance alone, the interest reverts without cost to the original owner. § 227.290. Applying § 228.190 so as to authorize abandonment of a state highway easement due to nonuse would, therefore, be in direct conflict with the provisions of § 227.270 and § 227.290. In particular, such a construction of § 228.190 would emasculate the discretionary authority § 227.290 gives the Commission to decide whether to hold or sell interests in land that are not currently useful. For this additional reason, the trial court did not err in holding that § 228.190 does not apply to state highways.

We reject the Sheedys’ argument that § 227.090 is rendered meaningless if § 228.190 does not apply to state highways. One example will suffice. Section 229.030 states, in pertinent part, that “[pjublic roads shall be cleared of all obstructions therein that hinder or interfere with travel or traffic thereon.... ” Quite plainly, § 229.030 deals with the obstruction of roads. We perceive no reason why this statute would be in conflict with the provisions of Chapters 226 and 227. Accordingly, § 227.090 makes § 229.030 applicable to state highways. This refutes the Sheedys’ argument that the trial court’s construction of § 227.090 renders the statute meaningless.

The trial court concluded that § 228.190 does not apply to state highways. For the reasons stated above, we agree with that conclusion. Accordingly, the Sheedys’ point on appeal is denied, and the trial court’s entry of summary judgment in favor of the Commission is affirmed.

SHRUM, P.J., and BARNEY, J„ concur.

      . All statutory references are to RSMo (2000).

      . A state highway system with prescribed routes in and through each county was created by statute. See § 227.020.

      . All references to rules are to the Missouri Court Rules (2005).

      . An easement is an interest in real property that runs with the land and is binding on successive owners. See Riverside-Quindaro Bend Levee Dist., Platte County, Missouri v. Missouri American Water Co., 117 S.W.3d 140, 155 (Mo.App.2003); Borton v. Forest Hills Country Club, 926 S.W.2d 232, 234 (Mo.App.1996).


text:
    Darin Richard MENDEZ, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26712.
    Missouri Court of Appeals, Southern District, Division Two.
    Dec. 22, 2005.

      Irene Karns, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen. and Karen L. Kramer, Assistant Attorney General, Jefferson City, for Respondent.
   PHILLIP R. GARRISON, Judge.

Darin Richard Mendez (“Movant”) appeals the denial of his post-conviction relief motion filed pursuant to Rule 24.035 contending that his pleas of guilty were involuntary as a result of ineffective assistance of counsel. We affirm.

Movant was charged with the class A felony of robbery in the first degree, in violation of Section 569.020, two counts of armed criminal action, in violation of Section 571.015, the class B felony of assault in the first degree, in violation of Section 565.050, and the class D felony of resisting arrest, in violation of Section 575.150. Those charges stemmed from the robbery of a convenience store in Branson, Missouri, on November 22, 2001, when Movant threatened a clerk with an eight inch knife while stealing a bottle of tequila. He was later chased by police officers, and was arrested following a high-speed chase which ended when his car was forced off the road and collided with a parked car.

On the day the cases were set for trial before the court, Movant’s attorney, Day-rell Scrivner (“Attorney Serivner”), told the court that Movant wanted to plead guilty to first-degree robbery, one count of armed criminal action, and resisting arrest. This was part of a plea bargain in which the State agreed to dismiss the other two counts (assault in the first degree and one count of armed criminal action). Movant signed a Petition to Enter Plea of Guilty in which he stated that he stole tequila while holding a knife and that he resisted arrest. In that petition, Movant acknowledged that his attorney had discussed the ranges of punishment for the offenses; that he understood that the sentence he would receive was solely a matter within the control of the judge; if anyone made any promises or suggestions other than as noted in the petition, they had no authority to do so; and that he had not been coerced or forced in any manner to get him to plead guilty and that no promises, inducements or representations had been made except the assurance that the State would dismiss the two counts referred to earlier.

At the plea hearing, Movant assured the court that he had read and understood the petition to plead guilty. He also acknowledged knowing that the range of punishment for first-degree robbery was ten to thirty years or life; the minimum punishment for armed criminal action was three years with no maximum and no opportunity for probation; and for resisting arrest he could receive a maximum of five years and a $5,000 fine. He was asked if, other than the plea agreement, there had been any other kind of promises that induced him to plead guilty, and after a conference with his attorney, he told the court that there had not been. The court accepted Movant’s pleas of guilty and set the case for sentencing.

Sentencing was set for March 6, 2003, at which time Movant appeared with Attorney Scrivner. Attorney Scrivner, however, informed the court that since the pleas had been entered in Movant’s cases, he had started a position with the Stone County Prosecuting Attorney’s Office, but that after discussions with Movant, they both thought that since the pleas had been entered prior to counsel’s new employment, he should continue with the sentencing. Although informed that Movant had no objection to him serving as counsel at sentencing, the court held that the conflict could not be waived, Attorney Scrivner was permitted to withdraw, and the matter was continued.

When the matter came up again for sentencing on May 1, 2003, Movant appeared with attorney Marc Edmondson (“Attorney Edmondson”). The court sentenced Movant to concurrent terms of twelve years for first-degree robbery, five years for armed criminal action, and five years for resisting arrest. Upon questioning by the court, Movant said that except for Attorney Scrivner, he was satisfied with the attorneys who had represented him. Movant said that he believed that at some point Attorney Scrivner knew that he had applied for a job with the Stone County Prosecutor, but said nothing to him about it until a couple of days before he was set to appear for sentencing. According to Movant, Attorney Scrivner told him he would get him an attorney, but on the day sentencing was scheduled, told him that he had not been able to find anyone. Consequently, Movant said he had not looked for another attorney. He also said, with reference to Attorney Scrivner:

He also led me to — well, there was no promise of anything, but he led me to believe that just plead guilty to this because obviously the Judge will see that you had a mental breakdown and he’ll have leniency on you. That was exactly what he gave me, that impression, of that — just go ahead and do this, and not that things are going to be all right. He said “He can go crazy and give you 30 years”, okay? He says “But, surely he’s going to see what has happened and not do that to you.”

Movant said, “That would be my only complaint,” and “[h]e just misguided me.” When the court said he understood Mov-ant’s complaint to be that Attorney Scriv-ner withdrew because he took a job as a prosecutor in another county and didn’t get him a substitute lawyer soon enough, Movant said:

That just made me look bad. No, Your Honor, that’s not my complaint. My complaint is that he knew he had the application in for prosecutor, and he indeed decided to represent me, and I believed him until the very end, the very day that he would help me. I believe I was misrepresented. I believe that I was in a way deceived.

When the court said that he was having trouble following what Movant believed Attorney Scrivner’s ineffectiveness was, and asked if Movant was saying that Attorney Scrivner was trying to represent him but did not have his interests at heart because he also wanted to be a prosecutor somewhere, Movant said, “Quite possibly.” Movant also said:

He led me to believe that everything would be gone over thoroughly and that we would see exactly what happened that day, and again that was the only thing I requested was to feel that feeling.

The court then made the finding that probable cause to believe that ineffective assistance of counsel did not exist.

Movant filed a pro se motion for post-conviction relief pursuant to Rule 24.035, which was amended by appointed counsel. One of Movant’s allegations in that proceeding was that “[p]lea counsel erroneously assured [M]ovant that he would receive a suspended imposition of sentence for the robbery charge, three to five years on the armed criminal action charge, and probation on the resisting arrest charge.” An evidentiary hearing was held, and the motion court entered findings of fact and conclusions of law denying the motions. This appeal followed.

In his sole point on appeal, Movant contends that the motion court clearly erred in denying his Rule 24.035 motion “because [his] plea was unknowing and involuntary in that he pled in reliance on counsel’s mistaken advice that he would receive a suspended imposition of sentence for the charge of first-degree robbery, a sentence of three to five years on the armed criminal action charge, and be put on probation for the charge of resisting arrest.” He says that had he “not been incorrectly advised about what sentences he could expect, he would have insisted on proceeding to trial.”

We review the denial of a motion for post-conviction relief only to determine whether the findings of fact and conclusions of law of the motion court were clearly erroneous. Schuerenberg v. State, 98 S.W.3d 922, 923 (Mo.App. S.D.2003); Rule 24.035(k). “Findings 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.” Schuerenberg, 98 S.W.3d at 923.

“A criminal defendant seeking post-conviction relief based on ineffective assistance of counsel must demonstrate that his counsel failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise under substantially similar circumstances and that he was thereby prejudiced.” Graham v. State, 11 S.W.3d 807, 810 (Mo.App. S.D.1999) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674, 693 (1984)). When a movant’s conviction was the result of a guilty plea, “a claim of ineffective assistance of counsel is immaterial except to the extent that it infringes upon the volun-tariness and knowledge with which the guilty plea was made.” Id. (citing Wilkins v. State, 802 S.W.2d 491, 497 (Mo. banc 1991), cert. denied, 502 U.S. 841, 112 S.Ct. 131, 116 L.Ed.2d 98 (1991)). Movant must show that the guilty plea “was not the product of an intelligent or knowing act.” Cole v. State, 2 S.W.3d 833, 835 (Mo.App. S.D.1999).

‘When a defendant claims to have pleaded guilty based on a mistaken belief about his sentence, the test is whether a reasonable basis exists in the record for such belief.” Morehead v. State, 145 S.W.3d 922, 931 (Mo.App. S.D.2004) (quoting McNeal v. State, 910 S.W.2d 767, 769 (Mo.App. E.D.1995)). Only when it appears that a movant’s belief is based upon positive representations on which he is entitled to rely will we conclude a movant’s mistaken belief is reasonable. Id. A disappointed expectation of a lesser sentence does not make a guilty plea involuntary. Talley v. State, 146 S.W.3d 465, 467 (Mo.App. S.D.2004). Additionally, mere pre dictions by plea counsel as to sentencing will not lead to a finding of legal coercion rendering a guilty plea involuntary. Id. A claim that a movant was misled by counsel is tested by whether any such belief was reasonable. State v. Rice, 887 S.W.2d 425, 428 (Mo.App. W.D.1994). “[W]here there is no reasonable basis for the belief in light of the guilty plea record, movant is not entitled to relief.” Id. (quoting McMahon v. State, 569 S.W.2d 753, 758 (Mo. banc 1978)).

The motion court concluded that Mov-ant’s belief as to an anticipated sentence was subjective, and that the plea record contained no evidence that he was promised any sentence on any of the three charges to which he pled guilty. The court noted that Attorney Scrivner successfully negotiated the dismissal of two serious felony charges; and that Movant indicated during his plea that he was not promised any particular sentence. It concluded that “[Attorney Scrivner], never promised Movant a particular sentence or probation and as the plea record suggests Movant was clearly informed that he was not promised any particular sentence in exchange for his plea of guilty. This Court, considering the entire record and the testimony of [Attorney Scrivner] and the Movant find no believable basis for Movant’s alleged claim in his petition.”

Attorney Scrivner testified at the evi-dentiary hearing that he never told Mov-ant that he was going to receive a suspended imposition of sentence on the robbery charge, that he merely told him that the minimum sentence on the armed criminal action charge was three years, and that he did not tell him that he would receive probation on the resisting arrest charge. Determinations concerning credibility are exclusively for the motion court which is free to believe or disbelieve any evidence, whether contradicted or undisputed. Anderson v. State, 84 S.W.3d 501, 505 (Mo.App. S.D.2002). The appellate courts defer to the credibility determinations of the motion court. Kenney v. State, 46 S.W.3d 123, 128 (Mo.App. W.D.2001).

Based on the record outlined earlier in this opinion, we are unable to conclude that the motion court clearly erred as alleged by Movant on this appeal. His point is denied.

The judgment is affirmed.

BATES, C.J., and BARNEY, J., concur.

      . All rule references are to Missouri Rules of Criminal Procedure (2004) and all references to statutes are to RSMo (2000), unless otherwise indicated.

      . Movant had previously waived jury trial.

      . The charges against Movant were filed, and he entered his pleas, in the Circuit Court of Taney County.


text:
    David BYERS, Appellant, v. KUNA MEAT COMPANY, INC., Respondent.
    No. ED 86219.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 27, 2005.
    David Byers, St. Louis, MO, for appellant.
    Larry R. Ruhmann, St. Louis, MO, Bryan M. Kaemmerer, Chesterfield, MO, for respondent.
    Before MARY K. HOFF, P.J., CLIFFORD H. AHRENS, J., and PATRICIA L. COHEN, J.
   ORDER

PER CURIAM.

David Byers (“Byers”) appeals the order of the Labor and Industrial Relations Commission (“LIRC”) affirming the decision of the appeals tribunal of the Division of Employment Security denying his claim for unemployment benefits. Byers claims the LIRC erred in finding that he voluntarily left employment without good cause attributable to the employer.

We have reviewed the briefs of the parties and the record on appeal and find no error of law. No jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The order of the LIRC affirming the decision of the appeals tribunal is affirmed in accordance with Rule 84.16(b).


text:
    STATE of Missouri, Plaintiff/Respondent, v. William D. DAVIS, Defendant/Appellant.
    No. ED 85744.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 27, 2005.
    Victor J. Melenbrink, Assistant Attorney General, Jefferson City, MO, for respondent.
    Timothy Forneris, Assistant Public Defender, Office of the Missouri Public Defender, St. Louis, MO, for appellant.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Defendant, William D. Davis, appeals from the judgment entered on a jury verdict finding him guilty of attempted forcible rape, in violation of section 566.030 RSMo (2000), forcible sodomy, in violation of Section 566.060 RSMo (2000), and kidnapping, in violation of Section 565.110 RSMo (2000). The trial court found defendant to be a prior and persistent offender and sentenced him to fifteen years imprisonment on the rape and sodomy counts, to be served concurrently, and ten years imprisonment on the kidnapping count, to be served consecutively.

No error of law appears and no jurisprudential purpose would be served by a written opinion. However, the parties have been furnished with a memorandum opinion for their information only, setting forth the facts and reasons for this order.

The judgment is affirmed in accordance with Rule 30.25(b).


text:
    Herbert BETTS, Appellant, v. TREASURER of the STATE OF MISSOURI as CUSTODIAN of the SECOND INJURY FUND, Respondent.
    No. ED 86550.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 27, 2005.
    Susan K. Roach, Shaun M. Falvey, Attorneys at Law, Clayton, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Kareitha A. Osborne, Asst. Atty. Gen., St. Louis, MO, for respondent.
    Before GARY M. GAERTNER SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Appellant, Herbert Betts (“Claimant”), appeals the decision of the Labor and Industrial Relations Commission (“the Commission”) denying Claimant both permanent total disability benefits and permanent partial disability benefits. Claimant had filed a workers’ compensation claim against Respondent, Treasurer of the State of Missouri as Custodian of the Second Injury Fund (“the Second Injury Fund”), and Sears, Roebuck and Company (“Sears”). We affirm.

We have reviewed the briefs of the parties and the record on appeal. As an extended opinion would serve no jurisprudential purpose, we affirm the Commission’s decision pursuant to Rule 84.16(b). We have, however, provided a memorandum opinion for the use of the parties only setting forth the reasons for our decision.

      . Claimant has already reached a settlement agreement with Sears.


text:
    Scharad T. HUTCHINS, Appellant, v. BELLEFONTAINE HABILITATION CENTER, Respondent.
    No. ED 86271.
    Missouri Court of Appeals, Eastern District, Division Two.
    Dec. 27, 2005.
    Gregory F. Quinn, Manchester, MO, for appellant.
    Yvette G. Hipskind, St. Louis, MO, for respondent.
    Before GARY M. GAERTNER, SR., P.J., GEORGE W. DRAPER III, J., and KENNETH M. ROMINES, J.
   ORDER

PER CURIAM.

Scharad T. Hutchins (hereinafter, “Hutchins”) appeals from the trial court’s judgment affirming the decision of the Missouri Personnel Advisory Board (“the Board”), which affirmed Hutchins’ dismissal from his employer Bellefontaine Habili-tation Center. Hutchins raises two points on appeal, claiming the Board’s decision was: (1) arbitrary, capricious, and unreasonable because its inferences from the evidence are contrary to the undisputed facts; and (2) unsupported by competent and substantial evidence and is contrary to the overwhelming weight of the evidence when viewed in light of the entire record.

We have reviewed the parties’ briefs and the record on appeal. No error of law appears. A written opinion would serve no jurisprudential purpose. We have, however, prepared a memorandum for the use of the parties only, setting forth the reasons for our decision.

We affirm the judgment pursuant to Rule 84.16(b).


text:
    Jason WHITE, Movant/Appellant, v. STATE of Missouri, Respondent/Respondent.
    No. ED 84748.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 27, 2005.
    Scott Thompson, St. Louis, MO, for appellant.
    Karen L. Kramer, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY, J., and BOOKER T. SHAW, J.
   ORDER

PER CURIAM.

Movant, Jason White, appeals from the judgment denying on the merits his Rule 24.035 motion for post-conviction relief without an evidentiary hearing. The findings and conclusions of the motion court are based on findings of fact that are not clearly erroneous. Rule 24.035(k). No error of law appears. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. However, the parties have been provided with a memorandum for their information only, setting forth the reasons for this order.

We affirm the judgment pursuant to Rule 84.16(b).


author: LAWRENCE E. MOONEY, Judge.

text:
    STATE ex rel. Julius ACOFF, et al., Appellants, v. The CITY OF UNIVERSITY CITY, Respondent.
    No. ED 86145.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 27, 2005.

      Althea P. Johns, St. Louis, MO, for appellants.
    Gregg M. Lemley, St. Louis, MO, for respondent.
   LAWRENCE E. MOONEY, Judge.

The appellants, all firefighters for the City of University City, appeal from the dismissal of their petition for writ of mandamus. The sole relief requested by the appellants in their petition was an order in mandamus directing the City to cancel a promotional examination for the position of battalion chief, which was scheduled for February 7, 2005. The trial court issued an ex parte preliminary order in mandamus ordering the City to cancel the exam until further order, and to file an answer. The City filed a motion to quash the preliminary writ of mandamus, and to dismiss the appellants’ petition for failure to state a claim. The City’s motion was called and heard, and the trial court granted the City’s motion. The firefighters appeal, alleging the trial court erred in dismissing their petition. We dismiss the appeal as moot.

“ ‘A threshold question in any appellate review is the mootness of the controversy.’ ” State ex rel. Reed v. Reardon, 41 S.W.3d 470, 473 (Mo. banc 2001) quoting Armstrong v. Elmore, 990 S.W.2d 62, 64 (Mo.App.1999). It is settled law that the courts of this State do not decide moot cases. Kinsky v. Steiger, 109 S.W.3d 194, 195 (Mo.App. E.D.2003). Because mootness implicates the justiciability of a case, we may dismiss a case for mootness sua sponte. Reed, 41 S.W.3d at 473. “ ‘When an event occurs that makes a court’s decision unnecessary or makes granting effectual relief by the court impossible, the case is moot and generally should be dismissed.’ ” Id.

This case is moot. The appellants sought to prevent the City from proceeding with a promotional examination for the position of battalion chief. Yet, the City has filed an affidavit showing that, once the mandamus order was lifted and the petition for writ of mandamus dismissed, the City rescheduled and proceeded with its battalion-chief exam, which took place in March of 2005. A new battalion chief was later selected and began serving in that position on April 6, 2005. Because the examination and selection have already occurred, we cannot grant any effectual relief. Accordingly, we dismiss this appeal as moot.

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

      . The appellants and the City both acknowledge that one of the appellants, Julius Acoff, has died. No claim has been advanced that any interest he has in this litigation survives his death. Accordingly, the cause of action as to the deceased appellant, Julius Acoff, is dismissed.