author: MINTON, Judge. GUIDUGLI, Judge,

text:
    C.M.C. and C.L.C., Appellants, v. A.L.W.; P.L.S.; and B.R.C.S., A Minor, Appellees. S.A.S. and T.L.S., Appellants, v. A.L.W.; P.L.S.; and M.P.W., A Minor, Appellees. S.A.S. and T.L.S., Appellants, v. A.L.W.; P.L.S.; and A.L.W. II, A Minor, Appellees. G.A.C. Sr. and D.D.C., Appellants, v. P.L.S.; G.A.C. Jr.; and G.A.C. III, A Minor, Appellees.
    Nos. 2004-CA-002015-ME to 2004-CA-002018-ME.
    Court of Appeals of Kentucky.
    Nov. 23, 2005.

      Susan M. Meschler, Shelbyville, KY, Phyllis Deeb (Lohman), Louisville, KY, for appellants.

      Annette C. Karem, Louisville, KY, for appellee P.L.S.
    Before GUIDUGLI and MINTON, Judges; ROSENBLUM, Senior Judge.

      . Senior Judge Paul W. Rosenblum sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.

      .It is uncontested that A.L.W. sexually abused J.K.S.

   OPINION

MINTON, Judge.

I. INTRODUCTION.

These combined appeals arise out of the family court’s denial of petitions to adopt four children without the consent of their biological mother, an action that placed in issue the involuntary termination of the biological mother’s parental rights. The first question we must answer here is whether these appeals may proceed in light of the statutory prohibition against appeals from orders denying the involuntary termination of parental rights. We conclude that a conflicting, but more specific, statute allowing appeals from adoptions must prevail. So appeals may proceed. On the merits of the appeals, we hold that the family court did not err in denying the adoptions because we find substantial evidence exists in the record to support the family court’s decision.

II. THE PARTIES AND THE BACKGROUND OF THE CASES BELO W.

P.L.S. is the mother of five children: J.K.S., G.A.C. III, M.P.W., A.L.W. II, and B.R.C.S. J.K.S., born in 1992 to P.L.S. and S.B., is not a subject of this action. G.A.C. III was born in 1996 to P.L.S. and G.A.C. Jr., an appellee who has voluntarily consented to termination of his parental rights. G.A.C. III resides with his paternal grandfather and step-grandmother, G.A.C. Sr. and D.D.C., who were awarded permanent custody of G.A.C. III in 2001.

Appellee A.L.W. is the father of M.P.W., A.L.W. II, and B.R.C.S. Á.L.W. has filed a consent to adoption as to all three children. M.P.W., who was born in 1998, and A.L.W. II, who was born in 1999, reside with their paternal grandmother and step-grandfather, S.A.S. and T.L.S., who were granted permanent custody of M.P.W. and A.L.W. II in 2001.

Appellant C.M.C. is the paternal aunt of B.R.C.S., who was born in 2001. C.M.C. and her husband, C.L.C., were awarded permanent custody of B.R.C.S. in 2001.

The family court’s detailed orders on the petitions for adoption relate the unfortunate circumstances leading to this appeal. P.L.S. married G.A.C. Jr. in 1996, and they were divorced in 2001. In 1999, while P.L.S. was still legally married to G.A.C. Jr., Child Protective Services filed a petition alleging that A.L.W., who was P.L.S.’s boyfriend, had abused J.K.S., G.A.C. III, and M.P.W. After further petitions were filed, P.L.S. entered into a stipulation of facts as to two counts of neglect of J.K.S., G.A.C. III, and M.P.W. and one count of neglect and risk of abuse as to G.A.C. III and M.P.W. Furthermore, P.L.S. stipulated to one count of neglect and sexual abuse of J.K.S. In addition, P.L.S. admitted that she had violated an order requiring her to have no contact with A.L.W. As a result of those admissions, the family court found that G.A.C. III, M.P.W., and A.L.W. II were abused children; and their custody was taken from P.L.S., and she was ultimately ordered to pay $479.22 per month in child support, effective February 8, 2001.

In December 1999, Child Protective Services filed a petition alleging that A.L.W. II was in danger of serious physical injury. As a result, the Cabinet for Health and Family Services was granted emergency custody of A.L.W. II. But shortly thereafter, P.L.S. was awarded temporary custody of A.L.W. II by agreement with the stipulation that she have no contact with A.L.W. However, less than a year later, Child Protective Services filed another petition alleging that A.L.W. II had suffered a skull fracture. That petition resulted in the Cabinet again being granted emergency custody of A.L.W. II, who was placed with S.A.S. and T.L.S. P.L.S. ultimately stipulated to one count of abuse toward A.L.W. II, and S.A.S. and T.L.S. were awarded permanent custody of A.L.W. II.

In flagrant violation of the no-contact order, P.L.S. and A.L.W. conceived B.R.C.S. during the no-contact period. The day after B.R.C.S. was born, Child Protective Services filed a petition alleging that B.R.C.S. was in danger of imminent death or serious bodily injury, based upon the lengthy list of earlier petitions. C.M.C. and C.L.C. were granted emergency custody of B.R.C.S. P.L.S. later entered into a stipulation of fact as to one count of risk of abuse toward B.R.C.S., and C.M.C. and C.L.C. were awarded permanent custody of B.R.C.S. in October 2001. In May 2002, P.L.S. was ordered to pay $122.52 per month in child support for B.R.C.S.

Although custody of these children had been taken from her, P.L.S. had been granted one hour per week of supervised visitation with them. In September 2003, P.L.S. filed motions to increase her visitation with her minor children. Soon after those motions were filed, S.A.S. and T.L.S., C.M.C. and C.L.C., and G.A.C. Sr. and D.D.C. filed their petitions to adopt the children. In March 2004, the family court conducted a three-day bench trial on those adoption petitions, as well as P.L.S.’s motion for increased visitation. In August 2004, the family court issued orders denying each adoption petition and granting P.L.S.’s motion for increased visitation. These appeals followed.

III. ANALYSIS OF THE ISSUES ON APPEAL.

A. Does KRS 625.110 Require Dismissing These Appeals?

KRS 625.110 provides, in its entirety, that “[a]ny order for the involuntary termination of parental rights shall be conclusive and binding on all parties, except that an appeal may be taken from a judgment or order of the Circuit Court involuntarily terminating parental rights in accordance with the Kentucky Rules of Civil Procedure.” Neither side mentioned this statute in the briefs submitted to this Court. Because an adoption proceeding is a de facto proceeding for the termination of parental rights, we asked the parties to submit supplemental briefs on what effect they perceived KRS 625.110 to have on these appeals. The Appellees’ supplemental brief predictably argued that KRS 625.110 requires these appeals to be dismissed.

On the other hand, Appellants argued in their supplemental brief that KRS 625.110 had no bearing on this matter for two basic reasons. First, Appellants contended that they proceeded under KRS Chapter 199, which they assert is entirely separate from KRS Chapter 625. But this argument is unavailing since an adoption without consent of the living biological parents is, by its very nature, a proceeding seeking the termination of parental rights. The General Assembly obviously did not envision KRS Chapter 199 to be wholly separated and discrete from KRS Chapter 625 since KRS 199.500 specifically references KRS 625.090. In the cases at hand, the family court’s orders denying Appellants’ adoption petitions are also orders denying the termination of parental rights. These orders fall squarely under KRS 625.110.

Appellants’ second argument has more merit. That argument revolves around KRS 199.560, which says that “[a]ny party to any adoption proceeding shall have the same right of appeal to the Court of Appeals of Kentucky as in other equity actions.” As these appeals clearly involve adoption proceedings to which Appellants are parties, KRS 199.560 purports to vest Appellants with the right to bring these appeals.

We are faced with one statute that clearly prohibits Appellants from filing these appeals and another statute that just as clearly permits them to file these appeals. The parties have not suggested, nor have we independently found, any way to harmonize these two conflicting statutes. Our efforts are further hampered because we have not found any case law that attempts to resolve the inherent conflict between these statutes that arises when one attempts to appeal from the denial of an adoption petition brought without the consent of the living biological parents. We must resort to the canons of statutory construction to resolve this perplexity.

KRS 625.110 deals with the involuntary termination of parental rights in all of its forms. As we have already discussed, an adoption proceeding to which a biological parent does not consent is one action by which a biological parent’s parental rights may be involuntarily terminated. Other methods do exist, however, for involuntarily terminating parental rights. Thus, since a petition seeking adoption of a child against the child’s biological parent’s wishes is a discrete subset of involuntary termination of parental rights cases, then the statute allowing appeals from adoption proceedings (KRS 199.560) is controlling because it is more narrowly focused than is the general statute forbidding appeals of orders denying involuntary termination of parental rights petitions (KRS 625.110). Furthermore, the general policy in this state is to permit any party aggrieved by a decision of a lower court an appeal with a higher court. Next, although the decision is factually distinguishable and contains no discussion of KRS 625.110, we note that the Kentucky Supreme Court permitted an appeal from the dismissal of an adoption petition in Day v. Day. Finally, we prefer to decide a case on its merits whenever possible. So we believe that KRS 199.560 takes precedence over KRS 625,110, meaning that this appeal need not be dismissed.

B. Did the Family Court Properly Exclude Certain Evidence of P.L.S.’s Alleged Abuse of Other Children?

Before we address the ultimate issue in these appeals, namely, whether the family court erred in denying the Appellants’ adoption petitions, we must first address Appellants’ contention that the family court erred by refusing to consider evidence of child abuse P.L.S. allegedly inflicted on other children who are not the subject of these appeals.

Since P.L.S. contested the Appellants’ adoption petitions, the petitions were governed by KRS 199.500(4). As noted previously, that subsection provides that “an adoption may be granted without the consent of the biological living parents of a child if it is pleaded and proved as a part of the adoption proceedings that any of the provisions of KRS 625.090 exist with respect to the child.” KRS 625.090, which governs the grounds for involuntary termination of parental rights, provides that in order for such a termination to occur, the Court must find by clear and convincing evidence that the child either is an abused or neglected child or was previously adjudged to be an abused or neglected child and that termination of the biological parents’ parental rights is in the best interest of the child. That statute later sets forth the factors that the Court must consider in determining the best interest of the child. Among those factors is one relating to “[a]cts of abuse or neglect as defined in KRS 600.020(1) toward any child in the family[J”

Appellants contend that the family court improperly excluded evidence that P.L.S. sexually abused other members of the family of the children involved in this appeal. More specifically, Appellants contend that the trial court should have permitted them to introduce evidence showing that P.L.S. physically abused I.W., a child whose father is A.L.W. but whose mother is not P.L.S. According to Appellants, the Jefferson Family Court issued an order requiring P.L.S. to avoid having any contact with I.W. (and his full sister, P.W.) due to the physical abuse P.L.S. subjected I.W. to while P.L.S. and A.L.W. cohabited.

In response, Appellees first argue that any evidence of P.L.S.’s alleged abuse of I.W. and/or P.W. was properly excluded because they are not members of P.L.S.’s family, as required by KRS 625.090(3)(b). Although Appellees are correct in that P.L.S. is not related to I.W. or P.W., either by blood or marriage, they ignore the more salient point: I.W. and P.W. are half-siblings of some of the children involved in this appeal by virtue of the fact that A.L.W. is the father of M.P.W., A.L.W. II, and B.R.C.S., as well as I.W. and P.W. Thus, I.W. and P.W. are clearly members of the family of M.P.W., A.L.W. II, and B.R.C.S.

However, contrary to the tenor of Appellants’ briefs, the family court did not issue a general prohibition on testimony regarding I.W.’s and P.W.’s dependency actions. As noted by Appellees, the trial court did permit general testimony regarding the fact that I.W. and P.W. were the subjects of dependency actions while they were residing with P.L.S. The trial court only barred testimony that was confusing and unclear (due to the large number of children involved in this case, as well as I.W. and P.W.). Furthermore, contrary to Appellants’ arguments, the family court did not issue a blanket prohibition of any testimony regarding documents from the dependency actions of I.W. and P.W. Rather, the family court simply ruled that S.A.S. could not testify as to those documents. This ruling was correct because Appellants did not submit certified copies of the record of the dependency actions, nor did they elicit testimony regarding those records by the records’ custodian. In addition, for whatever reason, Appellants’ counsel did not argue below that the contents of the records of I.W.’s and P.W.’s dependency actions were within S.A.S.’s personal knowledge (by virtue of the fact that those children resided with her as a result of the dependency actions), nor did Appellants’ counsel seek later to introduce the records through another competent witness.

Similarly, the trial court’s decision to disallow testimony regarding P.L.S.’s alleged abuse of R.H. must be affirmed. R.H. alleged that P.L.S. placed her finger in R.H.’s vagina and anus while babysitting. Eventually, a person involved with R.H.’s care stipulated that P.L.S. had abused R.H.; and, apparently, P.L.S. was ordered to have no contact with R.H. However, P.L.S. was not charged with a crime arising from her alleged sexual abuse of R.H. Thus, any evidence regarding that alleged abuse would appear to fall under Kentucky Rules of Evidence (KRE) 404(b).

One of the most important inquiries in assessing whether evidence of prior bad acts should be admissible under KRE 404(b) is the relevance of the prior bad acts. In other words, the question is whether the evidence is relevant “for some purpose other than to prove criminal disposition of the accused[.]” In the cases at hand, Appellants clearly sought to introduce the evidence regarding P.L.S.’s alleged abuse of R.H. for the truth of the matter asserted. In other words, the Appellants wanted to introduce that evidence to show that P.L.S. did, in fact, abuse R.H. The introduction of such “bad character” evidence falls squarely within the exclusionary properties of KRE 404(b). Thus, we find no error in the trial court’s decision to exclude the evidence regarding P.L.S.’s alleged abuse of R.H.

C. Did the Family Court Err When It Denied Appellants’ Adoption Petitions?

Having determined that the family court correctly resolved the evidentiary issues argued by Appellants, we now turn our attention to the correctness of its ultimate conclusions. In doing so, we are mindful of the fact that “[t]his Court’s standard of review in a termination of parental rights action is confined to the clearly erroneous standard in CR [Kentucky Rules of Civil Procedure] 52.01 based upon clear and convincing evidence, and the findings of the trial court will not be disturbed unless there- exists no substantial evidence in the record to support its findings.”

As stated above, in order to grant Appellants’ involuntary adoption petitions, the family court was required to find that “any of the provisions of KRS 625.090 exist with respect to the child.” KRS 625.090 provides that a parent’s parental rights may be terminated only if the child is found to be (or has previously been found to be) an abused or neglected child and if the termination is found to be in the child’s best interests. The family court’s orders denying Appellants’ termination petitions set forth a finding that the children involved in these cases are abused and neglected, Appellants’ arguments to the contrary notwithstanding. Thus, boiled to its essence, the issue before us is whether the family court erred in concluding that terminating P.L.S.’s parental rights would not be in the best interest of these children.

As is typical in these types of emotional, difficult cases, each side presented the family court with an abundance of evidence. Predictably, each side, on appeal, also highlights large volumes of evidence that could be used to support its position. Given our limited standard of review, we need not belabor this opinion by examining each argument and piece of evidence in the record because our ultimate concern is whether the family court’s decisions are supported by substantial evidence.

The record does contain evidence that supports the family court’s decisions. For example, the record reflects that, for at least some amount of time, P.L.S. did attend parenting classes. P.L.S. also received counseling regarding domestic violence and recognizing the warning signs of abuse. That counseling has apparently borne at least some fruit as P.L.S. has been in a relationship free from abuse for several years. P.L.S. also is employed and has earned three associate degrees and is working toward her bachelor’s degree. Furthermore, P.L.S. has made regular child support payments since December 2002 and helps to pay the bills in a home she shares with another. Finally, the visitation center supervisor at the location where P.L.S.’s supervised visits with her children occur testified that P.L.S.’s children have a wonderful time during their visits and that the children run to P.L.S. when they see her. Thus, it appears as if P.L.S. has continued to have at least some measure of a parental bond with her children.

Obviously, the record contains plenty of evidence that would support a decision contrary to that reached by the family court. In fact, were we to consider this matter afresh, we may well have arrived at a different conclusion. But the fact that the record contains evidence that would support a different result does not mean that the family court’s decision must be reversed. As noted above, the record contains evidence in support of the family court’s ultimate conclusions. Thus, although the Appellants have, by all indications in the record, done an admirable job of lovingly caring for all of the children involved in these appeals, we are duty-bound to affirm.

IY. DISPOSITION.

For the foregoing reasons, the orders of the Jefferson Family Court are affirmed as to all four children herein.

ROSENBLUM, Senior Judge, concurs.

GUIDUGLI, Judge, concurs in result only and files separate opinion.

GUIDUGLI, Judge,

concurring in result only.

I believe the appeal should be dismissed based upon KRS 625.110. KRS 625.110 clearly states that the denial of an involuntary termination of parental rights cannot be appealed. If parental rights are not terminated, then an adoption cannot proceed. In this case, the family court refused to terminate P.L.S.’s parental rights and that simply is the end of the matter. I concur in result only because by affirming the family court’s order, the result is the same as if the appeal had been dismissed based upon KRS 625.110.

      . Although the full names of the children are, unfortunately, utilized in the parties’ briefs, we will refer to them and all other parties by their initials. See Kentucky Revised Statutes (KRS) 199.570 (mandating that adoption records be confidential).

      .KRS 600.020(1) defines an abused or neglected child. Such a child is one whose health or welfare is harmed or is threatened with harm due to a parent, inter alia, committing sexual abuse upon the child or allowing the child to be sexually abused; inflicting physical or emotional injury upon the child or permitting another to do so; creating a risk of physical or emotional injury to the child, or permitting another to do so; or creating a risk that an act of sexual abuse or exploitation will be committed upon the child, or permitting another to do so.

      . P.L.S. contends that the skull fracture occurred when P.L.S.’s cousin was watching A.L.W. II. No criminal charges were filed against anyone as a result of A.L.W. II's skull fracture.

      . S.A.S. and T.L.S. and C.M.C. and C.L.C. reside in the same home or, at least, did so at the time of the family court's hearings.

      . Kentucky Revised Statutes.

      . See, e.g., Moore v. Asente, 110 S.W.3d 336, 351 (Ky.2003) (“Like the final order in a TPR [termination of parental rights] proceeding, a valid adoption judgment terminates the parental rights of the birth parent.”).

      . Id.

      . KRS 199.500(4) provides that “[n]otwith-standing the provisions of subsection (1) of this section, an adoption may be granted without the consent of the biological living parents of a child if it is pleaded and proved as a part of the adoption proceedings that any of the provisions of KRS 625.090 exist with respect to the child.”

      . There is a dearth of cases interpreting KRS 625.110. And there is no legislative history for that statute available for us to examine. So we do not know why KRS 625.110 was enacted, or how the General Assembly believed that KRS 625.110 could comport with KRS Chapter 199, which governs adoptions.

      . Moore, 110 S.W.3d at 351; KRS 199.520(2) ("Upon granting an adoption, all legal relationship between the adopted child and the biological parents shall be terminated except the relationship of a biological parent who is the spouse of an adoptive parent.”).

      . For example, KRS 625.050(3) provides that “[p]roceedings for involuntary termination of parental rights may be initiated upon petition by the cabinet, any child-placing agency licensed by the cabinet, any county or Commonwealth’s attorney or parent.”

      . DeStock No. 14, Inc. v. Logsdon, 993 S.W.2d 952, 959 (Ky.1999) ("When two statutes deal with the same subject matter, one in a broad, general way and the other specifically, the specific statute prevails”); 73 Am. Jur.2d Statutes § 170 (2001) ("Similarly, with respect to a conflict arising between a statute dealing generally with a subject and another dealing specifically with a certain phase of it, the specific legislation controls in a proper case.”).

      . See Ky. Const. § 115 ("In all cases, civil and criminal, there shall be allowed as a matter of right at least one appeal to another court....”). However, we express no opinion as to whether KRS 625.110 runs afoul of Section 115 of the Kentucky Constitution because none of the parties raised that issue. See Preston v. Clements, 313 Ky. 479, 483, 232 S.W.2d 85, 88 (Ky.1950) ("The prevailing rule seems to be that the courts will avoid the question of constitutionality unless necessary to a proper determination of the merits of the cause under consideration.”); 5 Am.Jur.2d. Appellate Review % 703 (1995) ("Generally, an appellate court is not inclined to examine the constitutionality of a statute if a determination of the constitutional issue is not required in order to dispose of the case.”).

      . 937 S.W.2d 717 (Ky.1997).

      . See 5 Am.Jur.2d Appellate Review § 862 (1995) ("it is preferred that an appellate court address the merits of an appeal whenever possible, so that any doubt should be resolved in allowing, rather than dismissing, an appeal.”).

      . We are cognizant of the fact that KRS 625.110 was enacted later than KRS 199.560. We are also mindful of the fact that generally speaking, "if two statutes involving the same subject matter are in irreconcilable conflict, the later statute controls.” Logsdon, 993 S.W.2d at 958. But because "an earlier enacted specific, special, or local statute prevails over a later enacted general statute[,]” we believe that KRS 199.560's specificity prevails over the general nature of KRS 625.110. 73 AmJur.2d Statutes § 169 (2001).

      . Such a finding must be made in accordance with KRS 600.020(1), previously quoted herein.

      . The text of KRS 625.090(1) reads as follows:
      The Circuit Court may involuntarily terminate all parental rights of a parent of a named child, if the Circuit Court finds from the pleadings and by clear and convincing evidence that:
      (a) 1. The child has been adjudged to be an abused or neglected child, as defined in KRS 600.020(1), by a court of competent jurisdiction;
      2. The child is found to be an abused or neglected child, as defined in KRS 600.020(1), by the Circuit Court in this proceeding; [and]

      (b) Termination would be in the best interest of the child.

      . KRS 625.090(3).

      . KRS 625.090(3)(b).

      . Again, although the names of these other allegedly abused children are utilized freely in the parties’ briefs, in order to protect the children’s privacy, perhaps belatedly, we will refer to them only by their initials.

      . Cf., e.g., Skimmerhorn v. Commonwealth, 998 S.W.2d 771, 776-777 (Ky.App.1998) (holding that public records are admissible if certified copies of the records are offered, or if a person who has compared a copy with the original testifies that the copy is authentic).

      . The testimony was unclear as to whether the person was R.H.’s father or another party responsible for R.H.’s care.

      . In relevant part, KRE 404(b) provides that "[ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.”

      . Bell v. Commonwealth, 875 S.W.2d 882, 889 (Ky.1994).

      . Lawson, The Kentucky Evidence Law Handbook, 4th Ed., Sec. 2.25[3][b] (2003).

      . Such evidence could not be used to show a pattern or "signature crime” because R.H. is the only child who P.L.S. is alleged to have personally sexually abused.

      . The family court did not base its ruling on KRE 404(b). However, we may affirm for reasons not discussed by the trial court. See, e.g., Cooksey Bros. Disposal Co., Inc. v. Boyd County, 973 S.W.2d 64, 70 n. 3 (Ky.App.1997).

        . M.P.S. v. Cabinet for Human Resources, 979 S.W.2d 114, 116 (Ky.App.1998). See also Boone v. Department of Welfare, 310 Ky. 568, 221 S.W.2d 454, 456 (Ky.1949) (holding that in adoption proceedings, an appellate court can only determine whether a trial court acted within its discretion); 2 Ralph S. Petrilli, Kentucky Family Law § 29.19 (1988) ("The same test is used on appellate review of an adoption case as in many other areas of family law. The court will be affirmed unless the decision was clearly erroneous or an abuse of judicial discretion.”).

      . KRS 199.500(4).

      . See KRS 625.090(l)(a) and (b).

      . For example, page 15 of the trial court’s order concerning G.A.C. Ill states that "[t]his Court found in the dependency action in Case No. 99-FY-0870 that [G.A.C. Ill] was an abused and neglected child, which the Court in this action also finds.”

      . M.P.S., 979 S.W.2d at 116.


source: Caselaw Access Project

author: VANMETER, Judge.

license: Public Domain

text:
    James Ray JOHNSON, Appellant v. COMMONWEALTH of Kentucky, Appellee.
    No. 2004-CA-001960-MR.
    Court of Appeals of Kentucky.
    Dec. 2, 2005.

      James Ray Johnson, Central City, KY, for appellant.
    Gregory D. Stumbo, Attorney General of Kentucky, Dennis W. Shepherd, Assistant Attorney General, Frankfort, KY, for ap-pellee.
    Before HENRY and VANMETER, Judges; MILLER, Senior Judge.

      .Senior Judge John D. Miller sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.

   OPINION

VANMETER, Judge.

James Ray Johnson appeals from the Ohio Circuit Court’s denial of his motion to vacate its judgment of conviction and sentence pursuant to RCr 11.42 and his motion for the trial judge’s recusal. For the following reasons, we affirm.

Pursuant to a search warrant, the Ohio County Sheriffs Department searched Johnson’s home. Based upon several items seized during the search, Johnson was indicted on August 10, 2000 of the following counts: possession of drug paraphernalia, possession of marijuana, trafficking in a controlled substance (methamphetamine), possession of a handgun by a convicted felon, and trafficking in marijuana within 1000 yards of a school. A trial commenced on June 26, 2001, and at the close of all of the proof, the court dismissed the count of trafficking in marijuana within 1000 yards of a school. Ultimately, the jury found Johnson not guilty of trafficking in methamphetamine but guilty of the lesser-included offense of possession of methamphetamine, as well as the remaining indicted counts. The court accepted the jury’s recommended sentence and sentenced Johnson to serve five years for possession of marijuana, five years for possession of drug paraphernalia, and ten years for possession of methamphetamine, to run consecutively, for a total of twenty years. Johnson appealed to the Kentucky Supreme Court, which affirmed after reviewing the following issues:

(1) failing to instruct the jury on the “beyond a reasonable doubt” standard with respect to the firearm enhancement issue; (2) failing to dismiss the enhancement issue because of insufficiency of the evidence to prove his possession of a firearm; (3) allowing the Commonwealth to play a videotape of the execution of the search warrant and his arrest; (4) failing to sufficiently cure the Commonwealth’s reference to his prior guilty plea in another case; (5) failing to properly instruct the jury on the drug paraphernalia charge; and (6) allowing the Commonwealth to amend the indictment with respect to the charge of trafficking in methamphetamine.

On August 18, 2004, Johnson filed pro se motions to vacate the court’s judgment of conviction and sentence pursuant to RCr 11.42, and to recuse the trial judge, the Honorable Ronnie C. Dortch. The trial court overruled Johnson’s RCr 11.42 motion, stating that his “allegations were or should have been raised in his direct appeal and that the allegations relating to an ineffective assistance of counsel are without substance.” The trial court further overruled Johnson’s motion for recusal. This appeal followed.

I. Denial of RCr 11.42 Relief

Johnson contends that the trial court erred when it denied his RCr 11.42 motion without holding an evidentiary hearing. We disagree. An evidentiary hearing is not required to consider issues refuted by the trial court record. Because the trial court denied Johnson’s RCr 11.42 motion without a hearing, “our review at this time is confined to ‘whether the [RCr 11.42] motion on its face states grounds that are not conclusively refuted by the record and which, if true, would invalidate the conviction.’ ” Accordingly, we must first determine whether the alleged errors entitle Johnson to relief under RCr 11.42.

The purpose of RCr 11.42 is to provide defendants with a means to obtain relief for errors that “rise to the level of a constitutional deprivation of due process.” It is not a “substitute for appeal nor does it permit a review of all of the alleged trial errors.” Further, we will not disturb the trial court’s decision unless it is clearly erroneous. Johnson alleges many instances of ineffective assistance of counsel in support of his claim that the trial court improperly denied his RCr 11.42 motion without an evidentiary hearing. In analyzing these alleged errors, we are compelled to follow “[t]he two-pronged test for ineffective assistance of counsel ... (1) whether counsel made errors so serious that he was not functioning as ‘counsel’ guaranteed by the Sixth Amendment, and (2) whether the deficient performance prejudiced the defense.” In essence, “[c]oun-sel is constitutionally ineffective only if performance below professional standards caused the defendant to lose what he otherwise would probably have won.”

Johnson’s first allegation is that his attorney, Jason Pfeil, did not properly investigate the matter. In support thereof, Johnson asserts that Pfeil did not interview several potential witnesses, including David Stewart, who Johnson contends brought into his home the gun that the police found. The record, however, discloses that Johnson’s daughter testified that the gun did not belong to Johnson, but that it instead was brought into the residence by Stewart, who took the gun out of his boot and stashed it under the chair where the police found it. Thus, the testimony that Johnson complains was omitted was, in fact, presented to the jury. The failure to call Stewart did not amount to ineffective assistance of counsel.

Johnson also contends that Pfeil failed to investigate and challenge the search warrant, which he claims was insufficient because it was based upon an unreliable, anonymous informant’s information. The standard for determining whether an informant’s tip provides probable cause for the issuance of a search warrant is based upon the “totality of the circumstances” set forth in the police affidavit. In Lovett v. Commonwealth, the Kentucky Supreme Court noted that

[u]nder this test, the issuing magistrate need only “make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.” [462 U.S.] at 238, 103 S.Ct. at 2332. While an informant’s veracity, reliability, and basis of knowledge are all “relevant considerations in the totality of the circumstances analysis,” they are not conclusive and “a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.” Id. at 233, 103 S.Ct. at 2329....
Gates also explained that a magistrate’s determination of probable cause is entitled to “great deference” and should be upheld so long as the magistrate, considering the totality of the circumstances, had a “substantial basis for concluding that a search would uncover evidence of wrongdoing.” Id. at 236, 103 S.Ct. at 2331 (internal quotation omitted); Beemer v. Commonwealth, Ky., 665 S.W.2d 912, 914 (1984); see also Massachusetts v. Upton, 466 U.S. 727, 732-33, 104 S.Ct. 2085, 2087, 80 L.Ed.2d 721 (1984) (reemphasizing Gates). It is within this rubric that we evaluate the decision of the trial court.
Typically, a bare and uncorroborated tip received from a confidential informant, without more, would be insufficient to establish probable cause for a search warrant. E.g., Florida v. J.L., 529 U.S. 266, 270, 120 S.Ct. 1375, 1378, 146 L.Ed.2d 254 (2000). This is not such a case. As stated supra, the totality of the circumstances test requires a balancing of the relative indicia of reliability accompanying an informant’s tip. Gates, supra, at 234, 103 S.Ct. at 2330. Thus, while a court may question an informant’s motives, an “explicit and detailed description of alleged wrongdoing, along with a statement that the event was observed first-hand, entitles [the informant’s] tip to greater weight than might otherwise be the case.” Id.; United States v. Sonagere, 30 F.3d 51, 53 (6th Cir.1994).

■ In Lovett, the court upheld a search warrant based on detailed, first-hand ob-serrations. Similarly, in this case the affidavit, signed by Deputy Sheriff Norman Payton, demonstrated that the basis of the informant’s knowledge was his first-hand presence and observations at Johnson’s house within a week prior to the issuance of the search warrant, including his observation of “a quantity of methamphetamine ‘crank’ at the residence” and several sales made by Johnson at the residence. Deputy Payton’s affidavit further stated that the confidential informant was known to Payton, that the informant had previously provided reliable information which resulted in drug-related arrests, and that the Ohio County Sheriffs department had received 3 to 4 months’ worth of complaints from neighbors about people coming and going at the residence at all hours. This affidavit clearly showed that the informant had personal knowledge of facts constituting probable cause. The affidavit also sufficiently allowed the magistrate to judge the informant’s credibility. Thus, counsel’s decision not to challenge the search warrant was reasonable under the circumstances.

Next, Johnson contends that he was denied the effective assistance of counsel because Pfeil did not file the appropriate pretrial motions, including a motion for Dortch’s recusal. As the basis for this motion, Johnson asserts both that Dortch previously prosecuted him on unrelated charges, and that Dortch “chewed out” Johnson when he ended a live-in relationship with one of Dortch’s neighbors and close friends. “A motion for recusal should be made immediately upon discovery of the facts upon which the disqualification rests. Otherwise, it will be waived.” Here, the record indicates that Dortch was the circuit judge who originally arraigned Johnson in August 2000. Pfeil did not enter his appearance in the case until March 2001. As Johnson clearly was aware that Dortch was assigned to the case nearly seven months before Pfeil entered his appearance, Pfeil’s failure to move for recusal did not constitute ineffective assistance of counsel.

Johnson’s next contention is that Pfeil was ineffective because he did not file a motion for a speedy trial. A defendant who does not demand a speedy trial does not waive his right; rather, a defendant’s failure to assert this right is merely a factor “to be considered in an inquiry into the deprivation of the right.” The threshold question when analyzing the possible denial of a speedy trial is whether there was a presumptively prejudicial delay.

Here, Johnson’s right to a speedy trial attached when formal proceedings were brought against him, i.e., the August 10, 2000 indictment. We do not believe, and Johnson has alleged nothing to persuade us, that the delay between the indictment and the June 26, 2001, trial was presumptively prejudicial, especially in light of the facts that Pfeil first entered his appearance on Johnson’s behalf on March 5, 2001, and the trial court’s order setting the trial date was entered on April 17. No ineffective assistance of counsel resulted from any failure to move for a speedy trial.

Johnson’s next contention is that he was denied effective assistance of counsel because Pfeil neither prepared alternative jury instructions nor objected to the instructions ultimately given to the jury. Unquestionably, the Kentucky Supreme Court was critical of the jury instructions in this matter. The Court held that the jury instructions failed to require a finding beyond a reasonable doubt that Johnson possessed a handgun, and failed to require a nexus between the crime committed and the possession of the handgun. Even so, the court nevertheless found no palpable error or “manifest injustice” since the jury instructions did contain a general instruction that the “reasonable doubt” standard applied to the whole case. In addition, the Court found that the evidence supported the finding of a nexus between the pistol and Johnson’s drug possession.

In applying these holdings to Johnson’s ineffective assistance of counsel claim, we note that a palpable error is one which upon consideration of the whole case the reviewing court concludes that a substantial possibility exists that the result would have been different absent the error. Although stated differently, the substantial possibility of a different result is substantially the same as the prejudice prong of the Strickland analysis. We also note that the purpose of an RCr 11.42 motion is to provide means to attack a judgment which were not available on direct appeal. As Johnson’s RCr 11.42 complaints concerning the jury instructions were already addressed on direct appeal, they are not properly the subject of post-judgment proceedings. The trial court did not err in failing to grant relief.

The record also refutes Johnson’s allegation that he was afforded ineffective assistance of counsel because Pfeil failed to advise him of his right to testify. Johnson testified during penalty phase of his trial. After expressing displeasure at not getting to testify during the guilt phase, the following exchange occurred between Pfeil and Johnson:

Pfeil: Mr. Johnson, prior to your trial getting started, I explained to you the pros and cons of your testifying. Correct?
Johnson: Yes sir.
Pfeil: I also asked you if you wanted to testify given those risks, did I not?
Johnson: You said it would be best for me not to testify so this wouldn’t be brought out. But he brought it out in this court anyway.
Pfeil: But I did give you the choice. Correct?
Johnson: Yes sir.

Thus, the record demonstrates that Johnson was aware of his right to testify, but voluntarily waived it. Given Johnson’s extensive criminal record and the fact that his two children testified on his behalf concerning -the family, the search, and items found at the home, such as the surveillance cameras and the police scanner, we cannot say that Pfeil’s advice to Johnson was unreasonable.

Johnson’s next complaint, that Pfeil failed to enforce separation of the witnesses, is also refuted by the record. Under KRE 615(2), the Commonwealth is permitted one officer or employee to be designated as its representative to sit at counsel table. In this case, Detective Phillip Ballard served in that capacity, as demonstrated by the video record and as conceded by Johnson. The Commonwealth, in order, called four witnesses: Norman Payton, David Wayne Hack, Gregory Clark, and Ballard. At the time Payton testified no other Commonwealth witness was in the courtroom, other than Ballard as permitted. Payton remained in the courtroom after testifying, but he was not recalled to the stand. The second witness for the Commonwealth, David Wayne Hack from the Kentucky State Police Crime Laboratory, entered the courtroom from outside upon being called, and he apparently left after his testimony. Although the next witness, Clark, remained in the courtroom for the testimony of Ballard, the final witness, Clark was not recalled to the stand. The requirement of separation of witnesses is not violated if a witness, having testified and not being recalled, remains in the courtroom to hear the balance of the case.

Finally, Johnson alleges Pfeil failed (1) to inquire as to whether any jurors were tainted by a list posted in the courthouse which stated that Johnson was charged of being a convicted felon in possession of a handgun, despite the fact that this charge was severed from his drug charges, (2) to consult with Johnson in developing trial strategy and regarding jury selection, and (3) to adequately prepare for the penalty phase of the trial. With respect to the list of charges outside the courtroom, the trial judge in fact inquired of the jurors whether anyone knew Johnson, or heard or talked about the case. Further, Johnson makes no credible allegation that any juror was tainted by seeing this list. An RCr 11.42 motion is not a proper means for attempting discovery. With regard to the strategy issue, the record refutes the claim that Pfeil failed to consult with Johnson or to develop trial strategy. Johnson’s own pleadings indicate that Pfeil consulted with Johnson, even if in hindsight Johnson now thinks the amount was insufficient. The testimony of both Johnson and his daughter, Elizabeth, established that Pfeil consulted with Johnson and the witnesses on a number of occasions in an attempt to develop strategy and prepare testimony. The record also shows that Pfeil was actively engaged in questioning the Commonwealth’s witnesses and presenting a defense on Johnson’s behalf. As to the penalty phase, Johnson argues that his work to obtain his GED in 1994, his efforts to support his children after their mother abandoned the family, and his caretaking of his , granddaughter should have been addressed. The record addresses the family relationships but contains no mention of Johnson’s 1994 GED. However, considering the totality of the trial, as well as Johnson’s extensive criminal record, we do not believe this omission was determinative in the sentence recommended by the jury.

In order for individual allegations of ineffective assistance of counsel to have a cumulative effect, the individual allegations must have merit. “Repeated and collective reviewing of alleged errors does not increase their validity.” Johnson has failed to demonstrate any basis for his claims that counsel’s performance was deficient. He received a fundamentally fair trial.

Having concluded that the issues raised by Johnson are all refuted by the record, it follows that he was not entitled to an evidentiary hearing.

II. Motion to Recuse

In addition to citing the failure to file a motion to recuse as an example of Pfeil’s ineffective assistance as counsel, Johnson maintains on appeal that the trial court erred in denying his postjudgment pro se motion for Dortch’s recusal. We disagree.

“A motion for recusal should be made immediately upon discovery of the facts upon which the disqualification rests. Otherwise, it will be waived.” The record indicates that Dortch was the circuit judge originally assigned to the case in August 2000. Pfeil did not enter his appearance in the case until March 2001, and the trial began on June 26, 2001. Johnson claims he expressed to Pfeil his belief that Dortch should be recused prior to the trial in the matter, but no motion for recusal was filed until more than three years after the trial. While authority exists that issues relating to the recusal and appointment of a judge may be reviewed under the palpable error rule, even palpable errors may be waived. Thus, the trial court did not err in overruling Johnson’s motion, because Johnson waived any objection to Dortch presiding over the trial by fifing an extremely untimely motion.

The Ohio Circuit Court’s order is affirmed.

ALL CONCUR.

      . All three of these counts were enhanced by the gun possession count; further, Johnson was given the maximum sentence for each count.

      . Johnson v. Commonwealth, 105 S.W.3d 430, 433 (Ky.2003).

      . Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky.2001); Bowling v. Commonwealth, 981 S.W.2d 545 (Ky.1998); see also Fraser v. Commonwealth, 59 S.W.3d 448, 452 (Ky.2001) (court holding that the motion may be summarily dismissed if it fails to specify grounds and supporting facts which justify relief).

      . Baze v. Commonwealth, 23 S.W.3d 619, 622 (Ky.2000) (citing Lewis v. Commonwealth, 411 S.W.2d 321, 322 (Ky.1967)).

      . Hodge v. Commonwealth, 68 S.W.3d 338, 342 (Ky.2001).

      . Commonwealth v. Basnight, 770 S.W.2d 231, 237 (Ky.App.1989).

      . Harris v. Commonwealth, 441 S.W.2d 143, 144 (Ky.1969).

      . Robbins v. Commonwealth, 719 S.W.2d 742, 744 (Ky.App.1986), overruled on other grounds by Norton v. Commonwealth, 63 S.W.3d 175 (Ky.2001).

      . Fraser v. Commonwealth, 59 S.W.3d 448, 456-57 (Ky.2001) (citing, inter alia, Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)).

      . Foley v. Commonwealth, 17 S.W.3d 878, 884 (Ky.2000) (quoting United States v. Morrow, 977 F.2d 222, 229 (6th Cir.1992)).

      . Less notably, Johnson wanted Pfeil to interview Tony and Brenda Stevens and Ray "Bam Bam” Whitler for the proposition that the Ohio County Sheriff's Department had a practice of “setting people up.”

      . See Foley, 17 S.W.3d at 885 (court noting that "[djecisions relating to witness selection are normally left to counsel's judgment and this judgment will not be second-guessed by hindsight") (citation omitted).

      . Illinois v. Gates, 462 U.S. 213, 230-31, 103 S.Ct. 2317, 2328, 76 L.Ed.2d 527 (1983); Lovett v. Commonwealth, 103 S.W.3d 72, 77 (Ky.2003).

      . Supra, note 14.

      . 103 S.W.3d at 77-78.

      .The video record supports a conclusion that Pfeil did, in fact, investigate the circumstances of the informant. At his initial appearance on behalf of Johnson on March 22, 2001, Pfeil advised the trial court that a discovery issue had arisen concerning the informant. In addition, Florida v. J.L., 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), cited by Johnson, does not compel a different result. Factually, J.L. involved a tip from an anonymous caller from an unknown location. The facts in the instant case, by contrast, involve a confidential informant. See Collins v. Commonwealth, 142 S.W.3d 113, 121 (Ky.2004) (Wintersheimer, J., dissenting).

      . In its order denying Johnson’s pro se motion for recusal, which Johnson filed after the Kentucky Supreme Court's affirmance on appeal, the trial judge acknowledged Johnson's former assertion but denied the latter.

      . Bussell v. Commonwealth, 882 S.W.2d 111, 113 (Ky.1994) (internal citations omitted).

      . Barker v. Wingo, 407 U.S. 514, 528, 92 S.Ct. 2182, 2191, 33 L.Ed.2d 101 (1972).

      . Gabow v. Commonwealth, 34 S.W.3d 63, 70 (Ky.2000).

      . Reed v. Commonwealth, 738 S.W.2d 818, 820 (Ky.1987).

      . Johnson, 105 S.W.3d at 435-36.

      . Id.

      . Id. at 436-38.

      . Jackson v. Commonwealth, 717 S.W.2d 511, 514 (Ky.App.1986).

      . Gross v. Commonwealth, 648 S.W.2d 853, 856 (Ky.1983).

      . Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987 (1983).

      . See Dillingham v. Commonwealth, 995 S.W.2d 377, 381 (Ky.1999).

      . Haight v. Commonwealth, 41 S.W.3d 436, 442 (Ky.2001).

      . Id. at 441-42 (court noting that "the reviewing court must focus on the totality of the evidence before the judge or jury and assess the overall performance of counsel throughout the case in order to determine whether the identified acts or omissions overcome the presumption that counsel rendered reasonable professional assistance.”).

      . McQueen v. Commonwealth, 721 S.W.2d 694, 701 (Ky.1986).

        . Parrish v. Commonwealth, 121 S.W.3d 198, 207 (Ky.2003).

      . Baze v. Commonwealth, 23 S.W.3d at 628.

      . Bussell v. Commonwealth, 882 S.W.2d 111, 113 (Ky.1994) (internal citations omitted).

      . Jacobs v. Commonwealth, 947 S.W.2d 416, 419 (Ky.App.1997).

      . West v. Commonwealth, 780 S.W.2d 600, 602 (Ky.1989).


author: COMBS, Chief Judge.

text:
    Ronald L. HORN, Appellant v. Hon. Diana WHEELER, Judge, Oldham District Court, Appellee and National City Bank of Kentucky, Real Party in Interest.
    No. 2005-CA-000453-MR.
    Court of Appeals of Kentucky.
    Dec. 2, 2005.

      Ronald L. Horn, Eddyville, KY, for appellant.
    Thomas R. Myers, Cincinnati, OH, for appellee National City Bank, Real Party in Interest.
    Before COMBS, Chief Judge; HENRY and SCHRODER, Judges.
   OPINION

COMBS, Chief Judge.

This is an appeal from an order of the Oldham Circuit Court denying a petition for a writ of mandamus sought by the appellant, Ronald L. Horn, an inmate of the Kentucky State Penitentiary in Eddy-ville. The issue presented is whether the circuit court erred in declining to require by writ that the district court appoint counsel for Horn pursuant to the provisions of Kentucky Rules of Civil Procedure (CR) 17.04(1). We affirm.

On June 18, 2001, Horn was served with a summons and a complaint naming him as the defendant in a district court action to collect a debt. After being served with the complaint, Horn, acting pro se, filed a timely answer denying the amounts that the plaintiff, National City Bank of Kentucky, claimed that he owed. He also asserted various other defenses.

On September 4, 2003, the bank filed a motion for summary judgment. Horn did not respond. Twenty days later, the district court granted the bank’s motion and entered judgment against Horn in the amount of $2,026.30 — plus interest, costs, and attorney fees.

Approximately six months later, on March 22, 2004, Horn filed a motion with the district court seeking to “arrest” the judgment since a guardian ad litem had not been appointed on his behalf pursuant to the provisions of CR 17.04.

The bank argued that Horn had “defended the action” by filing a timely and responsive answer to the complaint and that he was, therefore, not entitled to the appointment of counsel pursuant to the rule. Horn supplemented his motion for relief with another motion filed with the district court in August 2004. He again argued that the court had a duty to appoint a guardian ad litem for him before rendering the judgment against him. It is unclear from the record how the court ruled on these motions.

On November 1, 2004, Horn filed an original action in the Oldham Circuit Court requesting that a writ of mandamus issue and that the district court be required to appoint him a guardian ad litem pursuant to the requirements of CR 17.04(1). On December 13, 2004, the Oldham Circuit Court entered its order denying the petition. This appeal followed.

A writ of mandamus is an exceptional remedy that is granted only under the most extraordinary circumstances. James v. Shadoan, Ky., 58 S.W.3d 884 (2001). The decision as to whether to issue a writ is always discretionary. Hoskins v. Maricle, 150 S.W.3d 1 (Ky.2004). The petition may be granted upon a showing: (1) that the lower court is proceeding or is about to proceed outside its jurisdiction and that there is no remedy through an application to an intermediate court; or (2) that the lower court is acting or is about to act erroneously (albeit within its jurisdiction), that there exists no adequate remedy by appeal or otherwise, and that great injustice and irreparable injury will result if the petition is not granted. See Hoskins, supra.

Horn conceded in his petition that the district court had exercised proper jurisdiction over the subject matter of the action. However, he asserted that the court had acted beyond the legitimate scope of its jurisdiction by failing to take the initiative sua sponte to appoint counsel for him pursuant to the provisions of CR 17.04.

Horn’s appeal has several flaws. Most notably, he failed to file his petition for mandamus within a reasonable time. See 52 Am.Jur.2d Mandamus § 371 (2000). A review of the record indicates that Horn was quite adept in navigating his way through the courts. He has not shown that he was prevented from filing his petition with the circuit court on a timely basis, nor does he allege that he was otherwise unable to file his petition. He offers no excuse or justification for delaying more than a year following the entry of judgment against him. The circuit court was justified in refusing to entertain the petition on this basis alone.

Additionally, Horn has failed to establish the necessary prerequisites or conditions precedent to the issuance of a writ. The district court did not act outside its jurisdiction by refusing his request to stay the judgment. As a result, Horn was required to show that there was no adequate remedy by appeal or otherwise and that without the writ there would be great injustice and irreparable injury. See Grange Mutual Ins. Co. v. Trude, 151 S.W.3d 803 (Ky.2004).

The judgment entered against Horn was subject to a timely appeal on his assertions that the requirements of the rules of civil procedure had not been properly followed and that his federal and state due process rights had been violated as a result. Because the right of appeal provided him with an adequate remedy for any alleged error, that avenue constituted his sole remedy, thus rendering the writ unavailable to him. Horn cannot show the existence of a “great injustice and irreparable injury.” No unique injustice or injury can be said to result from the temporary loss of a judgment to which a litigant believes he is entitled pending the outcome of an appeal. See The Independent Order of Foresters v. Chauvin, 175 S.W.3d 610 (Ky.2005).

Since Horn has failed to establish his entitlement to a writ of mandamus, we need not reach the merits of his claim that the circuit court abused its discretion by denying the petition. Consequently, we affirm the order of the Oldham Circuit Court.

ALL CONCUR.

      . CR 17.04(1) provides as follows:
      "Actions involving adult prisoners confined either within or without the State may be brought or defended by the prisoner. If for any reason the prisoner fails or is unable to defend an action, the court shall appoint a practicing attorney as guardian ad litem, and no judgment shall be rendered against the prisoner until the guardian ad litem shall have made defense or filed a report stating that after careful examination of the case he or she is unable to make defense.”


author: PATRICIA L. COHEN, Judge.

text:
    Patricia S. BARAZI, Appellant, v. Michael J. ECKOLDT, Respondent.
    No. ED 85510.
    Missouri Court of Appeals, Eastern District, Division One.
    Dec. 20, 2005.

      Cheryl A. Rafert, St. Louis, MO, for appellant.
    Scott D. Reynolds, Cape Girardeau, MO, for respondent.
   PATRICIA L. COHEN, Judge.

Introduction

Patricia Barazi n/k/a Patricia Voss appeals the judgment of the Circuit Court of Cape Girardeau County dismissing her Petition for an Order of Protection, pursuant to the Missouri Adult Abuse Act, without holding an evidentiary hearing. We reverse and remand.

Statement of the Facts and Proceedings Below

On May 4, 2004, Ms. Voss filed an Adult Abuse/Stalking Petition for Order of Protection seeking to restrain her former boyfriend, Michael Eckoldt, from abusing her, threatening to abuse her, molesting her, disturbing her peace, stalking her, entering her dwelling, communicating with her, or moving to Cape Girardeau County. In her Petition, Ms. Voss alleged that Mr. Eckoldt had knowingly and intentionally coerced, stalked, harassed, sexually assaulted, unlawfully imprisoned and followed her from place to place. She also alleged that he caused or attempted to cause her physical harm, placed or attempted to place her in apprehension of immediate physical harm, and threatened to commit these acts.

Ms. Voss further stated in her Petition that “[Mr. Eckoldt] is currently serving jail time for attacking [her in Alaska] and has sent [her] letters via his mother (Lori Herlocker) — see attachments (12/12/02)[.] Attacked [her] with a deadly weapon and almost killed [her] — see pictures.” Ms. Voss indicated that there was “an immediate and present danger of abuse or stalking of [her] because ... [h]e continues to stalk [her] through the use of his mother. He fully intends to request an interstate transfer as per Dennis Swiderski (his parole officer).” In support of her Petition, Ms. Voss submitted, among other things, photographs of her body following the assaults and letters she received from the Mr. Eckoldt.

On May 5, 2004, the trial court granted an Ex Parte Order of Protection restraining Mr. Eckoldt from abusing, threatening to abuse, stalk, molest, or disturb the peace of [Ms. Voss]; entering or staying upon the premises where [Ms. Voss] resides; communicating with [Ms. Voss] in any manner or through any medium; and moving his residence to Cape Girardeau County. The following day, the trial court set a hearing date for May 27, 2004.

On the date of the scheduled hearing, the trial court granted Mr. Eckoldt’s request for a continuance. On the newly scheduled date, the trial court granted Mr. Eckoldt’s attorney’s request to continue the case once again. Days before the scheduled hearing, Mr. Eckoldt filed a Motion to Dismiss and a Notice of Hearing on the Motion to Dismiss. On the date of the scheduled hearing, the trial court, in chambers, overruled Mr. Eckoldt’s Motion to Dismiss, set another hearing date and ordered counsel to confer with the judge a few weeks prior to the hearing date.

The trial court held a pre-hearing conference prior to the hearing date. On that day, Mr. Eckoldt renewed his dismissal motion. While on the record, the trial court denied Mr. Eckoldt’s Motion to Dismiss. At that same conference, the trial court asked Ms. Voss why she had not registered the protective order she had obtained while she lived in Alaska (“Alaska Order”). Ms. Voss, through counsel, responded that the Alaska Order no longer offered protection in that the provision that Mr. Eckoldt have no contact with her had expired. Instead of responding to Ms. Voss’s concern, the trial court stated:

[U]pon [the protective order from Alaska] being filed, [the trial court will] find that the matters complained of or alleged in your petition are dealt with by the Alaska order. And when, and if, Mr. Eckoldt does make some contact with [Ms. Voss] that is more than in a letter that is a direct contact, not through other persons, then I would suggest she then file a petition for an order of protection here.

Ms. Voss, through counsel, attempted to explain that Mr. Eckoldt had engaged in additional harassment. Again, the trial court simply responded that Ms. Voss would have “ten days to have this [Alaska order] registered within the State, of Missouri; and after ten days, then this matter will be dismissed.” The trial court further stated that Ms. Voss could “pursue this matter further if, and when, [Mr. Eckoldt] does make personal contact.... But letters are not sufficient enough to raise— ...” Ms. Voss, through counsel, responded that she had evidence in addition to the letters sent to her by Mr. Eckoldt. At this point, the trial court declared, “Well, that’s where we are today. And that’s the end of it, so far as we’re concerned, on this petition.” The trial court stated that the case “will be dismissed in ten days.”

Ms. Voss’s attorney inquired about the hearing set for a few weeks later. The trial court replied, “That’s dismissed. Nothing more needs to be done.” Through counsel, Ms. Voss objected on the ground that the proceedings were not adequate to protect her rights and that by depriving her of an evidentiary hearing, the trial court was denying her due process and equal protection of the law. The trial court stated that if Ms. Voss filed the Alaska Order, the Missouri case would be dismissed.

Ms. Voss did not register the Alaska Order and as indicated the trial court dismissed Ms. Voss’s petition. To that end, the trial court completed a pre-printed form memorandum and with an “x” marked the following: (1) petition appears in person and by counsel, Cheryl A. Ra-fert; (2) Respondent appears not but by counsel Scott Reynolds; (3) on hearing date, on the evidence adduced, the Court finds that Petitioner has failed to prove the allegation(s) of abuse or stalking by a preponderance of the evidence and orders the cause dismissed without prejudice; (4) Judgment/full order of protection denied; and (5) cause dismissed without prejudice for failure to prosecute.

In the month that followed, Ms. Voss filed a Motion to Vacate and Set Aside the trial court’s order dismissing her Petition. The trial court denied Ms. Voss’s Motion to Vacate. Ms. Voss appealed.

In light of the fact that the trial court dismissed the underlying case without prejudice for “failure to prosecute,” we issued an Order to Show Cause why this case should not be dismissed for lack of a final, appealable judgment. Ms. Voss filed an Answer to our Show Cause Order and we directed the parties to address the underlying jurisdictional issue in their appellate briefs.

Standard of Review

Our review of the trial court’s decision in this Adult Abuse Act case is governed by Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). We will affirm the judgment of the trial court unless no substantial evidence supports the decision, it is against the weight of the evidence, or it erroneously declares or applies the law. Capps v. Capps, 715 S.W.2d 547, 549 (Mo.App. E.D.1986).

Discussion

Before reaching the issue raised in Ms. Voss’s appeal, we address the underlying jurisdictional question. Here, the trial court dismissed Ms. Voss’s petition without prejudice, citing two grounds: (1) “on the evidence adduced, Petitioner has failed to prove allegations of abuse and stalking ....” and (2) “failure to prosecute.” A trial court’s dismissal of a case without prejudice is generally not an ap-pealable judgment. Chromalloy Am. Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 3 (Mo. banc 1997). This is so because, when a case is dismissed without prejudice, a plaintiff can typically cure the defects by filing another suit in the same trial court. Mo.R.Civ.P. 67.01. However, where re-filing of the petition would be futile, the order of dismissal is appealable. Nicholson v. Nicholson, 685 S.W.2d 588, 589 (Mo.App. E.D.1985). Likewise, if the dismissal without prejudice has the practical effect of terminating the litigation in the form cast or in the plaintiffs chosen forum, appeal can be taken. Mahoney v. Doerhoff Surgical Servs., Inc., 807 S.W.2d 503, 506 (Mo. banc 1991); Doe v. Visionaire Corp., 13 S.W.3d 674, 676 (Mo.App. E.D.2000).

Applying these principles to the facts of this case, we conclude that we have jurisdiction. This is clearly a case in which the dismissal, as well as the facts surrounding it, reflects that the trial court will not allow petitioner’s action to continue and re-filing would be a futile act. See Doe, 13 S.W.3d at 676. Despite Ms. Voss’s timely and appropriate prosecution of her case, the trial court simply refused to hear the case. The trial court stated its intention that upon Ms. Voss’s registering of the Alaska Order, the court would dismiss the Missouri case. Believing she was not adequately protected by the Alaska Order, Ms. Voss chose not to register the Alaska Order. Even though Ms. Voss declined to register the Alaska Order, the trial court dismissed the case. In essence, the trial court placed Ms. Voss in a classic Catch-22. If she registered the Alaska Order, the trial court intended to dismiss the case. If she refused to register the Alaska Order, the trial court intended to dismiss the case. It is hard to imagine a set of circumstances more deserving of an extension of the exception to the general rule against appeal of dismissals without prejudice.

In her sole point on appeal, Ms. Voss contends that the trial court erred when it dismissed and denied her Petition without first affording her an evidentiary hearing. In support of her position, Ms. Voss asserts that the trial court’s actions violated the mandatory hearing requirement contained in Section 455.040 RSMo 2000 of Missouri’s Adult Abuse Act. Ms. Voss also contends that she did not fail to prosecute her case. We agree.

It is well-established that a trial court commits reversible error when it fails to hold an evidentiary hearing in an order of protection case involving a contested issue. Brown v. Yettaw, 116 S.W.3d 733, 735 (Mo.App. S.D.2003); see also Ehrhart v. Ehrhart, 776 S.W.2d 450 (Mo.App. E.D.1989) (case reversed and remanded for an evidentiary hearing where no adversarial hearing of any kind occurred in a contested case involving an Order of Protection). Indeed, Section 455.040 of Missouri’s Adult Abuse Act provides, in pertinent part:

Not later than fifteen days after the filing of a petition pursuant to sections 455.010 to 455.085 a hearing shall he held unless the trial court deems, for good cause shown, that a continuance should be granted. At the hearing, if the petition has proved the allegation of abuse or stalking by a preponderance of the evidence, the trial court shall issue a full order of protection of a period of time the trial court deems appropriate[.]

(emphasis added).

Here, although the trial court issued a written memorandum stating that: “[o]n hearing date, on the evidence adduced, the Trial court finds that Petitioner has failed to prove the allegation(s) of abuse or stalking by a preponderance of the evidence and orders the cause dismissed without prejudice[,]” there is no dispute that the trial court did not conduct an evidentiary hearing. Having failed to conduct a hearing, the trial court violated the mandate of Section 455.040.

Ms. Voss also argues that contrary to the trial court’s determination, she did not fail to prosecute her case. Although trial courts have the inherent authority to dismiss a case for failure to prosecute with due diligence, the decision must be made within the exercise of sound judicial discretion. Kralik v. Mortgage Syndicate Inc., 673 S.W.2d 448, 449 (Mo.App. E.D.1984). Thus, “[a] dismissal for failure to prosecute is an abuse of discretion where a party timely files all required pleadings, responds to all discovery required, appears at the time and place for trial and is ready and willing to present evidence.” Belleville v. Director of Revenue, 825 S.W.2d 623, 625 (Mo. banc 1992). Here, there is no question that Ms. Voss timely filed all required pleadings and appeared ready and willing to present her evidence. Accordingly, the trial court abused its discretion in dismissing Ms. Voss’s petition for failure to prosecute. Point granted.

Conclusion

The judgment of the trial court is reversed and remanded for an evidentiary hearing.

MARY K. HOFF, P.J., and SHERRI B. SULLIVAN, J., Concur.

      . Notably, neither Mr. Eckoldt nor his attorney filed a responsive brief or appeared at oral argument.

      . The fact that the trial judge expressed his intent to dismiss Ms.-Voss’s Missouri case upon the filing of the Alaskan Order implies a misconception that a protective order from another state operates to preclude procurement of a protective order from the State of Missouri. While it is true that a person protected by an order of protection from another state may register that order in Missouri, the Adult Abuse Act does not contain any provisions that would prevent the entry of an order of protection in this state simply because an order of protection has already been entered in another state.


author: PER CURIAM.

text:
    Richard B. HAGAN, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64973.
    Missouri Court of Appeals, Western District.
    Dec. 27, 2005.
    Mark A. Grothoff, Columbia, MO, for appellant.
    Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before RONALD R. HOLLIGER, Presiding Judge, ROBERT G. ULRICH, Judge and JOSEPH M. ELLIS, Judge.
   ORDER

PER CURIAM.

Richard Hagan appeals from the denial of his Rule 29.15 motion for post-conviction relief. After a thorough review of the record, we conclude that the judgment is based on findings of fact that are not clearly erroneous and that no error of law appears. An extended opinion would have no precedential value but a memorandum explaining our reasoning has been provided to the parties.

Judgment affirmed. Rule 84.16(b).


text:
    Diana GAEDIG, Appellant, v. GLOBAL ENVIRONMENTAL LABORATORIES and Division of Employment Security, Respondents.
    No. ED 86183.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 27, 2005.
    Diana B. Gaedig, St. Louis, MO, pro se.
    Marilyn Green, Jefferson City, MO, for respondent.
    Global Environmental Laboratories, St. Louis, MO, pro se.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY and BOOKER T. SHAW, JJ.
   ORDER

PER CURIAM.

The claimant, Diana B. Gaedig, appeals from the decision of the Labor and Industrial Relations Commission finding her disqualified from receiving unemployment compensation benefits. The Commission found the claimant voluntarily separated from her employer without good cause attributable to her work or employer. We have reviewed the parties’ briefs and the record on appeal. The decision of the Commission is supported by competent and substantial -evidence on the whole record. An opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties, however, have been furnished with a memorandum, for their information only, setting forth the reasons for this order. The Commission’s decision is affirmed. Rule 84.16(b)(4).


text:
    STATE of Missouri, Respondent, v. Curtis BELL, Defendant/Appellant.
    No. ED 84913.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 27, 2005.
    Jo Ann Rotermund, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Daniel N. McPherson and Dora A. Fitcher, Asst. Attys. Gen., Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY and BOOKER T. SHAW, JJ.
   ORDER

The defendant, Curtis E. Bell, appeals the judgment entered upon his convictions by a jury for first-degree assault, Section 565.050 RSMo.2000, and armed criminal action, Section 571.015 RSMo.2000. We have reviewed the parties’ briefs and the record on appeal. We find no error. An extended opinion reciting the detailed facts and restating the principles of law would have no precedential value. The parties, however, have been furnished with a memorandum, for their information only, setting forth the reasons for our decision.

We affirm the judgment pursuant to Rule 30.25(b).


text:
    STATE of Missouri, Respondent, v. Elton MULLINS, Defendant/Appellant.
    No. ED 85166.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 27, 2005.
    Michelle M. Rivera, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Evan J. Buchheim, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY and BOOKER ,T. SHAW, JJ.
   ORDER

PER CURIAM.

The defendant, Elton Mullins, appeals from the judgment entered after a jury found him guilty of five counts of assault in the first degree, five counts of armed criminal action, and one count of unlawful use of a weapon. On appeal, defendant argues that the trial court erred by granting the State’s motion to strike a venireperson for cause.

No jurisprudential purpose would be served by a written opinion. The parties have been provided with a memorandum for their information only, setting forth the reasons for this decision. The judgment is affirmed. Rule 30.25(b).


text:
    Diondra BARNES, Movant/Appellant, v. STATE of Missouri, Respondent.
    No. ED 85870.
    Missouri Court of Appeals, Eastern District, Division Three.
    Dec. 27, 2005.
    Gwenda R. Robinson, St. Louis, MO, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Cecily L. Daller, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before KATHIANNE KNAUP CRANE, P.J., LAWRENCE E. MOONEY and BOOKER T. SHAW, JJ.
   ORDER

Movant Diondra Barnes appeals the motion court’s order denying his Rule 29.15 motion for post-conviction relief. We have reviewed the parties’ briefs and the record on appeal and find no clear error. An opinion would have no precedential value. The parties have been provided with a memorandum, for their information only, setting forth the reasons for this order. The motion court’s order denying Movant’s Rule 29.15 motion for post-conviction relief is affirmed. Rule 84.16(b)(2).


author: JAMES K. PREWITT, Presiding Judge.

text:
    Louis Tony BRILEY, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 26905.
    Missouri Court of Appeals, Southern District, Division I.
    Dec. 27, 2005.

      Kent Denzel, Assistant Public Defender, Columbia, MO, for appellant.
    Jeremiah W. Nixon, Atty. Gen., and Jayne T. Woods, Asst. Atty. Gen., Jefferson City, MO, for respondent.
   JAMES K. PREWITT, Presiding Judge.

Louis Tony Briley (“Movant”) was charged by information filed on January 21, 2004, with four counts of the class C felony of forgery, in violation of § 570.090, RSMo 2000. Pursuant to a plea agreement, Movant entered a plea of guilty to one count of forgery in exchange for a recommendation of four years’ imprisonment on that count and the dismissal of the other three counts. The trial court accepted Movant’s plea. Movant waived a pre-sentence investigation, and the trial court sentenced Movant to four year’s imprisonment, pursuant to § 558.011, RSMo 2000.

At the time Movant entered his plea on January 22, 2004, he was on probation from a conviction for failure to pay child support in Buchanan County. The Stone County court ordered Movant’s sentence to run concurrent with the sentence subsequently executed in Buchanan County. On April 6, 2004, Movant’s probation was revoked and a two-year sentence executed in Buchanan County.

On April 27, 2004, Movant filed a pro se motion under Rule 24.035. Counsel was appointed, and an amended motion was filed. Movant’s amended motion alleged, in part, that plea “counsel was ineffective in failing to adequately investigate and in misinforming movant of the sentence he faced in Buchanan County.” An evidentia-ry hearing was held on September 28, 2004. Movant testified that plea counsel, Darwin Groomer, told him that the sentence previously imposed in Buchanan County was for a term of four years. Movant further stated that, had he known the Buchanan County sentence was for a term of four years, he “would have held out and took (sic) it to trial or tried to get a better plea bargain.”

Groomer testified that Movant informed him of his probation in Buchanan County, and “[biased on what [Movant] told me, I understood it to be a four-year sentence.” Groomer further testified that he did not investigate Movant’s criminal history.

On February 23, 2005, the motion court filed its findings, conclusions and judgment and denied Movant’s request for post-conviction relief. Movant filed his notice of appeal on February 23, 2005.

In his first point, Movant maintains that “his guilty plea was not intelligently and voluntarily entered ... in that plea counsel ... failed to advise [Movant] that his Buchanan County sentence was actually for four years rather than the two years that [Movant] believed.” Movant further asserts that “while [Movant’s] belief was reasonable, counsel’s failure to follow up” or independently verify or review Movant’s criminal history entitles Movant to a vacation of his plea and a trial on the charges.

Appellate review of the dismissal of a motion for post-conviction relief is limited to a determination of whether the findings and conclusions of the motion court are clearly erroneous. Rule 24.035(k). A motion court’s findings are clearly erroneous if, after a review of the entire record, this court is left with the definite and firm impression that a mistake has been made. Fogle v. State, 124 S.W.3d 509, 511 (Mo.App.2004).

“Where there is a guilty plea, effectiveness of counsel is relevant only as affecting the voluntariness of the plea.” Felton v. State, 103 S.W.3d 367, 371 (Mo.App.2003). The burden of proof is upon Mov-ant to establish grounds for relief by a preponderance of the evidence. Id.

During examination of Movant at the plea hearing, the court asked Movant if he understood that “in exchange for your plea of guilty the Prosecuting Attorney has agreed to recommend that you be sentenced to four years on Count I of the felony information to be served concurrent with any probation violation.” Movant affirmed that he understood the recommendation.

Prior to sentencing, plea counsel asked that Movant’s “sentence be run concurrent with the sentence he is going to receive in Buchanan County for ... a probation violation, and that it will be also run concurrent with any misdemeanor deals that are made today.” The plea court noted that “the sentence shall run concurrent with the Buchanan County probation violation case, and also we’ll ensure that the ... misdemeanor runs concurrent with the ... felony case.” The court then sentenced Movant to a four-year term of imprisonment and ordered “that this sentence run concurrent with any sentence the Defendant serves in relation to the Buchanan County case.” Nowhere in the plea hearing transcript did Movant express a belief that his sentencing for the charge in Stone County would be for the same term as the sentence imposed in Buchanan County.

We have previously noted that Movant testified at his evidentiary hearing that Groomer informed Movant that the sentence imposed in Buchanan County was for a term of four years, while Groomer testified that he received that information from Movant. On cross-examination, Movant stated that at the time he entered his guilty plea to the charge in Buchanan County, he understood that the sentence he received was for a term of two years. Movant also stated that prior to his plea on the charge of non-support in Buchanan County, he had been prosecuted on a separate forgery charge in Stone County, a charge of “[d]riving on suspended,” charges of “joyriding,” forgery and stealing in Arkansas, and another charge of non-support in Buchanan County on October 31, 2002. He indicated that he had entered pleas of guilty on some of these charges. On February 6, 2004, Movant entered a guilty plea to a charge of forgery in Barry County and received a four-year sentence.

Groomer also testified that Movant was anxious to enter a guilty plea and that the sentence imposed be concurrent with the sentence in Buchanan County. He stated: “[Movant] was anxious to get it done right away. But I was able to hold him off long enough to get in his discovery, which I believe he received a copy of it. And then ... we almost immediately thereafter did a plea.”

The motion court found, in part, that “[t]he plea bargain agreement was quickly entered into at the insistence of the [Movant]. [Movant’s] prior criminal history, including the information about the Buchanan County case, was furnished by [Movant], which counsel relied upon in advising [Movant] in relation to the plea bargain offer.”

Counsel has a right to rely on a client’s statements as to certain historical events. Loggins v. State, 764 S.W.2d 670, 673 (Mo.App.1988). Information such as the term of imprisonment imposed should have been known to Movant. “If movant’s convictions or arrests were so numerous that he could not remember them, he should have told counsel as much.” Id.

“In a proceeding for postconviction relief, credibility of the witnesses is for the motion court’s determination.” Church v. State, 928 S.W.2d 385, 388 (Mo.App.1996). “It is within the discretion of the motion court to believe or disbelieve Movant’s testimony.” Id. The motion court found plea counsel to be credible, and we find no abuse of discretion in its determination. Point I is denied.

Movant’s second point contends that the motion court failed to enter specific findings of fact and conclusions of law, as required by Rule 24.035(j), on Movant's claim that plea counsel was ineffective for failing to investigate Movant’s criminal history. Movant’s amended motion contains one sentence wherein he alleges a failure to investigate: “Movant’s counsel was ineffective in failing to adequately investigate and in misinforming movant of the sentence he faced in Buchanan County.”

On this issue, the motion court found as follows:

The testimony presented, along with the transcript of proceedings of January 22, 2004, reflect the defendant wanted to enter a guilty plea in the Stone County case from the first visit with his counsel, and the plea was delayed by counsel in order to obtain discovery from the Prosecuting Attorney’s Office. The plea bargain agreement was quickly entered into at the insistence of the defendant. Defendant’s prior criminal history, including the information about the Buchanan County case, was furnished by the defendant, which counsel relied upon in advising the defendant in relation to the plea bargain offer.

There is no precise formula to which findings and conclusions must conform. State v. Taylor, 929 S.W.2d 209, 223 (Mo.banc 1996). Findings and conclusions are sufficient if they permit an appellate court to meaningfully review whether those findings and conclusions are clearly erroneous based on Movant’s contentions. Woods v. State, 861 S.W.2d 577, 583 (Mo.App.1993).

Here, the motion court’s findings on the ineffective assistance of counsel claim are sufficient to allow this court to conduct a meaningful review and conclude that the same are not clearly erroneous. Movant’s second point is denied.

The judgment is affirmed.

PARRISH, J., and RAHMEYER, J., concur.

      . Section 558.011 authorizes "a term of years not to exceed seven years” upon conviction for a class C felony.


text:
    STATE of Missouri, Respondent, v. Jason L. ROPER, Appellant.
    No. WD 64673.
    Missouri Court of Appeals, Western District.
    Jan. 3, 2006.
    James David Farris, Atchison, KS, for appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., Shaun Mackelprang, Office of Attorney General, Jefferson City, for respondent.
    Before PAUL M. SPINDEN, Presiding Judge, VICTOR C. HOWARD, Judge, and RONALD R. HOLLIGER, Judge.
   ORDER

Jason L. Roper appeals the circuit court’s judgment convicting him of one count of statutory rape in the first degree and one count of statutory sodomy in the first degree. We affirm. Rule 30.25(b).


text:
    Jeff LANE, Appellant, v. STATE of Missouri, Respondent.
    No. WD 64567.
    Missouri Court of Appeals, Western District.
    Jan. 3, 2006.
    Dimitra Y. Massey, Kansas City, MO, for appellant.
    Shaun J. Mackelprang, Asst. Atty. Gen., Jefferson City, MO, for respondent.
    Before RONALD R. HOLLIGER, Presiding Judge, ROBERT G. ULRICH, Judge and JOSEPH M. ELLIS, Judge.
   ORDER

PER CURIAM.

Jeff Lane appeals from the denial of his Rule 29.15 motion for post-conviction relief following an evidentiary hearing. After a thorough review of the record, we conclude that the judgment is based on findings of fact that are not clearly erroneous and that no error of law appears. An extended opinion would have no precedential value but a memorandum explaining our reasoning has been provided to the parties.

Judgment affirmed. Rule 84.16(b).


author: HAROLD L. LOWENSTEIN, Judge.

text:
    James O. SCOTT, Jr., Appellant, v. STATE of Missouri, Respondent.
    No. WD 64376.
    Missouri Court of Appeals, Western District.
    Jan. 3, 2006.

      James 0. Scott, Jr., Columbia, MO, pro se.
    Shaun J. Mackelprang, Jefferson City, MO, for Respondent.
    Before EDWIN H. SMITH, C.J., LOWENSTEIN and HOWARD, JJ.
   HAROLD L. LOWENSTEIN, Judge.

James Scott, Jr. (Appellant) entered a guilty plea to felony driving while intoxicated. Appellant’s three-year sentence was suspended, and Appellant was placed on probation for a term of five years. When Appellant’s probation was later revoked, Appellant was delivered to the Department of Corrections (DOC) on October 16, 2003. Appellant filed a series of rather confusing post-conviction motions, and he now appeals pro se from the motion court’s “judgments” denying him any relief. This court does not reach the merits of Appellant’s appeal because the docket entries from which Appellant bases his appeal are not final judgments under the strict requirements of Rule 74.01(a).

PROCEDURAL FACTS

After Appellant was delivered to the DOC, Appellant filed a timely Rule 24.035 motion on February 18, 2004. Counsel was later appointed to represent Appellant, and filed a statement in lieu of amended motion on May 26, 2004. On June 7, 2004, Appellant filed a motion to voluntarily dismiss the post-conviction proceeding. In connection with this motion to dismiss, Appellant executed a waiver of post-conviction action. The motion court dismissed the post-conviction proceeding with prejudice in an order dated June 9, 2004. It does not appear from Appellant’s brief that he appeals the motion court’s dismissal of his original Rule 24.035 motion.

The next day, Appellant filed a series of motions, which include an amended Rule 24.035 motion, a motion to withdraw waiver, and a motion to withdraw counsel (collectively referred to “amended Rule 24.035 motions”). The motion court overruled these motions in a docket entry dated June 14, 2004, citing the court’s June 4, 2004 order to dismiss with prejudice and that the amended Rule 24.035 motion was filed more than 180 days after Appellant’s delivery to custody.

On June 29, 2004, Appellant filed a motion to vacate the judgment under Rule 75.01 and a motion for relief from the judgment under Rule 74.06, contending that his plea was not voluntary or knowing. The motion court overruled the 74.06 motion in a docket entry dated July 7, 2004. Therefore, in all, Appellant appeals the motion court’s denial of his motions filed under Rules 24.035, 75.01, and 74.06.

An appellate court is obliged to examine its jurisdiction suet, sponte. Smith v. State, 63 S.W.3d 218, 219 (Mo. banc 2001). A prerequisite to appellate review is that there be a final judgment. Id. at 220.

Rule 74.01(a) provides, in relevant part:

“Judgment” as used in these rules includes a decree and any order from which an appeal lies. A judgment is rendered when entered. A judgment is entered when a writing signed by a judge and denominated “judgment” or “decree” is filed. The judgment may be a separate document or entry on the docket sheet of the case. A docket sheet entry complying with these requirements is a judgment unless the docket sheet entry indicates that the court mil enter the judgment in a separate document .... (emphasis added).

In short, a judgment must be (1) in writing, (2) signed by the judge, (3) denominated “judgment,” and (4) filed in order to be final.

Here, Appellant appeals three “judgments.” The docket entries overruling Appellant’s amended Rule 24.035 motions and Rule 74.06 motions provide the trial judge’s initials in typewritten form, and, significantly, not in the form of the trial judge’s handwriting. While handwritten initials satisfy the signature requirement, typewritten initials are insufficient. Grissum v. Soldi, 87 S.W.3d 915, 917 (Mo.App.2002). Therefore, because the docket entry is not signed by the motion judge, and Missouri law requires this court to strictly enforce the requirements of Rule 74.01(a), these docket entries are not final judgments. This court lacks appellate jurisdiction and must dismiss the appeal with respect to the amended Rule 24.035 motions and Rule 74.06 motions.

Finally, this court is also without jurisdiction to hear Appellant’s appeal of the trial court’s denial of his Rule 75.01 motion to vacate or reopen the judgment. This court is prohibited from hearing denials of 75.01 motions. Ensco Distrib. Corp. v. Oppenheimer Precision Prods., Inc., 723 S.W.2d 616, 617 (Mo.App.1987).

All concur.

      . Unlike the docket entries overruling Appellant’s amended Rule 24.035 motion and Rule 74.06 motion, nothing in the record indicates that the motion court addressed Appellant’s Rule 75.01 motion.