author: DYCHE, Judge. BUCKINGHAM, Judge,

text:
    Martel L. TURNEY, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2002-CA-002510-DG.
    Court of Appeals of Kentucky.
    Aug. 27, 2004.
    Discretionary Review Denied by Supreme Court April 13, 2005.
    Case Ordered Published by Supreme Court April 13, 2005.

      Dennis Stutsman, Assistant Public Advocate, Frankfort, KY, for appellant.
    Albert B. Chandler III, Attorney General of Kentucky, Christopher S. Nordloh, Special Assistant Attorney General, Frankfort, KY, for appellee.
    Before BUCKINGHAM, DYCHE, and TAYLOR, Judges.
   OPINION

DYCHE, Judge.

This Court granted Martel L. Turney discretionary review to ascertain whether there was sufficient evidence to support his conviction of sexual abuse in the third degree. KRS 510.130. Our determination is focused on whether there was sufficient proof of sexual contact (as defined in KRS 510.010(7)) with the victim.

“A person is guilty of sexual abuse in the third degree when he subjects añ-other person to sexual contact without the latter’s consent.” KRS 510.130(l)(a). “‘Sexual contact’ means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying the sexual desire of either party.” KRS 510.010(7).

Here the victim testified that appellant called her name, and when she turned to him he was handling his naked penis in front of her. His only touching of her was on the hip. The trial court found (and the circuit court affirmed on direct appeal) that Turney’s touching of his own sexual or intimate parts in the victim’s presence satisfied the statutory definition of sexual contact.

In regard to KRS 510.010(7), “[a]n actual touching is required, but the contact need not be directly with the body.” Bills v. Commonwealth, Ky., 851 S.W.2d 466, 471 (1993). In that instance, the defendant had touched the victim through her clothes. Here Turney only touched himself, except when he later placed his hand on the victim’s hip. There was simply no evidence that his actions met the definition of sexual abuse in the third degree. At worst he was guilty of indecent exposure. KRS 510.150. He was entitled to a directed verdict of acquittal, and the circuit court erred in affirming his conviction.

The opinion of the Kenton Circuit Court is reversed and this matter is remanded for proceedings not inconsistent with this opinion.

TAYLOR, Judge, concurs.

BUCKINGHAM, Judge, concurs and Furnishes Separate Opinion.

BUCKINGHAM, Judge,

concurring.

I concur totally with the majority opinion. However, I believe it is important to note that the incident where Turney touched the girl on the hip with his hand while she was on the couch was after the incident where he exposed himself and was not a sexual encounter in any manner. Rather, at that time Turney patted the girl and said that he hoped the earlier incident would be kept between the two of them.


source: Caselaw Access Project

author: VANMETER, Judge.

license: Public Domain

text:
    J. Fox DeMOISEY, Executor of the Estate of Jean C. Fox DeMoisey, Appellant, v. RIVER DOWNS INVESTMENT COMPANY, Appellee. The Estate of Jean C. DeMoisey, J. Fox DeMoisey, Executor, Appellant, v. River Downs Investment Company, Appellee.
    Nos. 2003-CA-002458-DG, 2004-CA-000370-MR.
    Court of Appeals of Kentucky.
    Feb. 11, 2005.
    As Modified March 11, 2005.
    Richard W. Hill, Louisville, KY, for appellant.
    Richard L. Robinson, Paul Alley, Ft. Mitchell, KY, for appellee.
    Before SCHRODER, TAYLOR, and VANMETER, Judges.
   OPINION

VANMETER, Judge.

Under KRS 372.010, a promissory note issued to cover an otherwise lawful horse-racing debt is void and unenforceable. We are called upon to decide whether an executor’s failure to disallow a claim based on such a note, within the time period prescribed by statute, converted the void debt into one required to be paid. We hold that it did, and we therefore affirm the decisions of the Campbell Circuit Court.

Prior to his death, Jean C. DeMoisey had a telephone betting account with River Downs Investment Company. Approximately two weeks prior to his death, De-Moisey signed a promissory note in favor of River Downs for the $34,510.80 deficit in the account. DeMoisey died on December 27, 1998. J. Fox DeMoisey (executor) was appointed executor of his father’s will on February 4, 1999. On March 15, 1999, River Downs sent a written claim based on the promissory note to the executor, who acknowledged receipt on March 22. On June 28,1999, the executor sent a letter to River Downs, explicitly stating that it was not a rejection of the claim, but requesting more information concerning the note.

In November 2001, River Downs sent the executor a letter inquiring about the status of the claim. Nearly a year later, on October 24, 2002, counsel for the executor sent a letter to River Downs disallowing the claim as void pursuant to KRS 372.010, and advising River Downs of the sixty-day time period in which any action must be filed under KRS 396.055.

River Downs then filed concurrent collection actions in the Campbell District Court (No. 02-C-1897) and the Campbell Circuit Court (No. 02-CI-1703), each seeking to collect the debt. The circuit court’s order granting the executor’s motion for summary judgment was not appealed. In the district court action, the court initially dismissed the claim as being in excess of the court’s jurisdictional limit, but it subsequently set that order aside and held the matter in abeyance pending a probate hearing as to the claim and whether the executor had ever disallowed the claim.

Following a June 2003 hearing in the probate matter (No. 99-P-68), the Campbell District Court found that the executor had allowed the claim by failure to timely disallow it, that the attempt to disallow the claim in October 2002 was ineffective, and that the executor had presented no evidence to justify a late disallowance. As a result, the district court also dismissed the collection action (No. 02-C-1897) as being moot.

River Downs then filed a motion in the circuit court action (No. 02-CI-1703), requesting the court to set aside the summary judgment in favor of the estate. The Campbell Circuit Court held the motion in abeyance pending its ruling on the executor’s appeal of the district court probate decision (No. 99-P-68) regarding the timeliness of the disallowance of the claim. After the circuit court affirmed the probate decision, it set aside its earlier judgment in No. 02-CI-1703 and subsequently dismissed that action. The executor filed a direct appeal from the circuit court’s dismissal of action No. 02-CI-1703, and this court granted discretionary review as to the probate decision.

The executor’s first two arguments are related and touch on the underlying transaction: 1) that the district court erred in allowing a claim which is void, and 2) that the district court erred in allowing a claim which also constitutes illegal activity. The executor cites Kentucky Off-Track Betting, Inc. v. McBurney, in support of his argument that the debt and the note at issue in this case are void and therefore uncollectible pursuant to KRS 372.010. The executor’s argument fails to take into account the effects of the overlay of KRS Chapter 396 on this case. While the executor makes a compelling argument that the transaction is void, the fact remains that upon presentation of the claim, the executor failed to disallow the claim in the time period required. Under KRS 396.011, claims must be presented within six months after the appointment of the personal representative. No question exists that River Downs timely presented its claim. Under KRS 396.055(1), a personal representative has only two options with respect to a claim: either allow it or disallow it. If it is allowed, the claim is payable. If it is disallowed, the claimant must commence a separate collection action against the personal representative. A third possibility, inaction, results in allowance:

Failure of the personal representative to mail notice to a claimant of action on his claim for sixty (60) days after the time for original presentation of the claim has expired has the effect of a notice of allowance, except that upon petition of the personal representative and upon notice to the claimant, the court at any time before payment of such claim may for cause shown permit the personal representative to disallow such claim.

In this case, the executor was appointed on February 4, 1999. Claims were required to be presented within six months following that date, i.e., by August 4,1999. The executor was required to either allow or disallow claims within sixty more days, or by approximately October 3, 1999. In this instance, the executor requested more information concerning the claim, as he was permitted to do. Doing so, however, did not relieve him of the obligation to take some action on the claim by October 1999. As he took no action, the passage of time resulted in an allowance of the claim. Only by petitioning the court, and showing cause for not responding to the claim, could the executor then disallow the claim.

In the recent case of Patterson v. Estate of Boone, the court discussed the meaning of KRS 396.055 and the requirement that a personal representative must show cause for failing to act on a claim. The court stated in detail:

Our legislature, in contrast, has specifically placed a limitation on the discretion of a personal representative to disallow a claim previously allowed by reason of inaction. We agree with the estate that the only time-limitation on the discretion to disallow the claim is that it must be done before payment. However, the legislature later provided that when the claim has been allowed by the personal representative’s inaction, in order to later disallow the claim the representative is required to petition the court and to “show cause.” Obviously, the legislature rejected the absolute right to disallow a claim previously allowed by the representative’s inaction.
The term “cause” is not defined in KRS 396.055. Nor does the statute explicitly state whether the showing of cause relates to the reason that the representative did not act on the claim before the expiration of sixty days, or to the merits of the claim itself. We find that when read in the context of the entire statute, the “cause” referred to in KRS 396.055(1) refers to a reasonable cause for not responding to the claim within the sixty-day period and not to the merits of the claim.

In Patterson, the claim presented was a contingent liability of nearly $6,000,000. The cause shown by the Boone estate related to the size of the debt, the complexity of the decedent’s financial dealings, and the need to accumulate a number of documents before that estate could make an informed decision as to allowance or disal-lowance. This was held to be a sufficient cause for the delay of slightly over one year in seeking to disallow, and the Boone estate was permitted to disallow the claim.

Here, by contrast, the Campbell District Court specifically found that “[n]o evidence has been presented to justify or even to explain the failure to file a timely notice of disallowance.” Our review of the record confirms that the sole ground for the executor’s argument that disallowance should be permitted was the holding in Kentucky Off-Track Betting, Inc. v. McBurney that a transaction of this type was void. This ground, however, which related to the merits of the claim had nothing to do with any delay in disallowing the claim by the executor. Furthermore, the decision in McBumey was rendered in June 1999, which was well before the October 1999 expiration of the time period for the executor to take action. The record indicates that the executor exchanged correspondence, had discussions with River Downs concerning the debt, and received records relating to the underlying transactions. Until October 2002, the executor took no steps to disallow the claim, and he did not approach the district court for permission to disallow the claim until June 2003. However, as noted by this court in Patterson and by the Campbell District Court below, the issue at any hearing under KRS 396.055(1) is whether reasonable cause is shown for failing to respond to the claim within the sixty-day period, and not whether the claim has merit.

Once the claim was allowed, it was payable under KRS 396.075, which provides that if an allowed claim is not paid, the claimant may apply to the court for an order directing the personal representative to satisfy the claim to the extent that funds in the estate are available. The reference in KRS 396.075 to “the court” clearly pertains to the district court, as probate matters fall within the exclusive jurisdiction of the district court, and the allowance or disallowance of claims is not designated as an adversarial proceeding.

At the point in the proceeding that River Downs filed the circuit court action (No. 02-CI-1703), the executor had failed to disallow the claim, and the claim was then still payable by an application and order from the district court. Since the circuit court lacked subject matter jurisdiction, River Downs’s suit should have been dismissed. “[A]ny attempt of a court to adjudicate a case when it has no jurisdiction of the subject matter of the action ... is void and of no effect.” Thus, the original summary judgment was not res judicata, and any failure of the circuit court to permit further pleadings was not error.

The executor’s final argument is that any payment of the claim creates an absurd result, since the estate would have an immediate claim for the recovery of gambling losses under KRS 372.020. This argument, however, was not advanced to the Campbell District Court. As such, we will not consider it on this appeal.

The judgments of the Campbell Circuit Court are affirmed.

ALL CONCUR.

      . The executor’s argument concerning illegality is based on both KRS 528.050, concerning possession of gambling records, and Ohio Admin. Code 3769-3-32, regulating telephone account wagering.

      . 993 S.W.2d 946 (Ky.1999)

      .Because we hold that the claim was allowed and payable under KRS Chapter 396, we need not decide the effect of the 2000 enactment of KRS 372.005 which provides that KRS Chapter 372 does "not apply to betting, gaming or wagering that has been authorized, permitted, or legalized, including ... all activities and transactions permitted under KRS Chapters 154A, 230, and 238.”

      . KRS 396.075.

      . KRS 396.055(1).

        . KRS 396.055(1).

      . KRS 396.011.

      . Under KRS 396.026, a personal representative may request formal information regarding a claim. A personal representative may certainly make a more informal request concerning a claim, as occurred in this case.

      . 150 S.W.3d 58 (Ky.App.2003).

      . Id. at 61 (emphasis added).

      . KRS 24A.120(2), (3). The amount of money involved in the claim is irrelevant. See e.g., Privett v. Clendenin, Ky., 52 S.W.3d 530, 532 (2001) (amount in controversy in an action under the Uniform Transfers to Minors Act (UTMA) is not dispositive, even if it exceeds the normal jurisdictional limit of district court, since the UTMA statute grants exclusive jurisdiction to district court).

        . Max Ams, Inc. v. Barker, 293 Ky. 698, 701, 170 S.W.2d 45, 47 (1943) (emphasis original).

      . Hibbitts v. Cumberland Valley Nat’l Bank & Trust Co., 977 S.W.2d 252, 253 (Ky.App.1998) (court holding that " ‘[t]he Court of Appeals is without authority to review issues not raised in or decided by the trial court’ ” (quoting Regional Jail Auth. v. Tackett, 770 S.W.2d 225, 228 (Ky.1989))).


author: MINTON, Judge.

text:
    Antonio SIMPSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2004-CA-000641-MR.
    Court of Appeals of Kentucky.
    March 11, 2005.
    Deanna L. Dennison, Covington, KY, for appellant.

      Gregory D. Stumbo, Attorney General of Kentucky, David A. Smith, Assistant Attorney General, Frankfort, KY, for appel-lee.
    Before MINTON and TACKETT, Judges; HUDDLESTON, Senior Judge.

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

   OPINION

MINTON, Judge.

On June 27, 2003, Antonio Simpson was arrested by the Covington police and charged with first-degree trafficking in less than eight ounces of marijuana, a misdemeanor. Because he was driving at the time of his arrest, the police impounded Simpson’s car and secured a search warrant. The search of the car uncovered seven bags of marijuana and three sets of digital scales. Based on this evidence, Simpson was indicted for trafficking in marijuana over five pounds. He filed a motion to dismiss the indictment on grounds of double jeopardy because by the time of his indictment, he had already disposed of the misdemeanor with a guilty plea in district court. After the circuit court denied the motion, Simpson entered a conditional guilty plea, reserving an appeal from the denial of his motion to dismiss. We hold that double jeopardy did not prevent the later trafficking charge; thus, we affirm the circuit court’s order denying dismissal.

On the date of Simpson’s arrest, the Covington Police Department received reliable information that Jeremie Johnson was trafficking in marijuana. The police arranged for a confidential informant to conduct a transaction with Johnson. Johnson arrived at the point of purchase in a car driven by Simpson. Before Johnson got out of the car, police saw Simpson hand Johnson a freezer bag that appeared to contain marijuana. Johnson placed the freezer bag into another bag and left the vehicle. At that point, the officers approached Johnson, who fled on foot. He was later caught with approximately 425 grams of marijuana.

Meanwhile, Officer Bill Conrad removed Simpson from his car and conducted a patdown search. Officer Conrad found two bags of marijuana, a cell phone, and $740 in cash on Simpson’s person. Simpson was arrested and initially charged with misdemeanor trafficking in eight ounces or less of marijuana. In a plea bargain in district court, the charge was amended to possession of marijuana, to which Simpson pled guilty.

After Simpson’s arrest on the misdemeanor, the Covington Police Department impounded his car and transported it to the evidence garage. A search warrant was obtained; and on July 30, 2003, a search was conducted. The search revealed sufficient evidence for the police to believe that Simpson was trafficking in marijuana. The Kenton County grand jury indicted Simpson for trafficking in five pounds or more of marijuana.

Simpson filed a motion to dismiss the indictment against him, arguing that to try him on the trafficking charges would put him “in jeopardy twice in violation of [his] constitutional rights ... based upon [his] plea of guilty on August 12, 2003[,] to the amended charge of possession of marijuana arising out of the same incident for which [he] stands [i]ndicted.” The Kenton Circuit Court denied his motion; on the same day, Simpson entered a conditional plea of guilty to a lesser trafficking charge, reserving the right to appeal from the denial of his motion to dismiss. This appeal follows.

On appeal, Simpson makes the same argument that he made in circuit court. Specifically, he claims that the misdemean- or charge of possession and the felony charge of trafficking both arose out of the events that occurred on June 27, 2003; since possession is a lesser included offense of trafficking, Simpson claims it was error for him to be charged with both offenses. Simpson alleges that his constitutional guarantee against double jeopardy was violated. We disagree.

Both the Fifth Amendment to the United States Constitution and Section 13 of the Kentucky Constitution secure an individual’s protection against double jeopardy. The Fifth Amendment specifically states “that no person shall ‘be subject for the same offence to be twice put in jeopardy of life or limb.’ ” KRS 505.020 provides further protection against “unfair or oppressive prosecution” by prohibiting con-vietion for more than one offense that is “included in the other.”

In Blockburger v. United States, the United States Supreme Court elucidated the test applicable to claims of double jeopardy. The Court held, “[t]he applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.” So long as each statute “requires proof of an additional fact which the other does not,” then double jeopardy does not occur.

Although the Supreme Court later pronounced a separate test for double jeopardy in the case of Grady v. Corbin, that test was overruled by the Court’s decision in United States v. Dixon. Relying on the decision in Dixon, the Kentucky Supreme Court has held that in Kentucky, “double jeopardy issues arising out of multiple prosecutions henceforth will be analyzed in accordance with the principles set forth in Blockburger v. United States and KRS 505.020.”

With regard to the relationship between possession and trafficking charges, “under our current statutes, possession of a controlled substance is a lesser offense included within the trafficking charge.” The Kentucky Supreme Court has also held that it is “error to convict [an individual] of being an accomplice to the possession with intent to sell and the sale of marijuana, when the charges arose from the same incident.”

Despite these holdings, there was no error under the facts for Simpson to be charged with both misdemeanor possession of marijuana and felony trafficking in marijuana. Although possession of marijuana is a lesser-included offense of trafficking in marijuana, the charges in this case did not arise from the same incident.

The facts of this case mirror the hypothetical situation posed by the Kentucky Supreme Court in Beaty v. Commonwealth. In Beaty, law enforcement officers pulled a vehicle over because they had observed it weaving on the highway. Upon approaching the vehicle, the officers smelled “a strong odor of anhydrous ammonia.” After arresting the driver, the officers conducted a search of the vehicle. The search revealed “substantial evidence of illegal drug activity,” including “three small bags of marijuana, a bag of cocaine, a set of scales, and other assorted drug paraphernalia.” A bag in the back seat of the vehicle contained “a piece of burnt aluminum foil bearing methamphetamine residue” and several ingredients used in the manufacturing of methamphetamine; in the trunk, the police officers found three propane tanks and a jar containing methamphetamine residue. The driver was indicted on numerous counts, including possession of a controlled substance in violation of KRS 218A.1415 and manufacturing methamphetamine in violation of KRS 218A.1432(l)(a). He was later convicted on both the possession and the manufacturing charges.

On appeal, the driver argued that his convictions for possession and manufacturing methamphetamine violated his constitutional guarantee against double jeopardy. Citing a Colorado case, the Court agreed, stating that “possession of methamphetamine [is] a lesser included offense of manufacturing methamphetamine for purposes of double jeopardy.” And, comparing this case to their earlier decision in Mangrum v. Commonwealth, the Court held that “under the facts of this case, [the defendant] could not also be convicted of a separate offense for possessing the methamphetamine that he manufactured.”

But, despite their belief that the facts precluded a conviction for both possession and manufacturing, the Court went on to state that the threshold question “is whether the manufacturing and possession convictions were predicated upon the same underlying facts. Without this factual unity, multiple convictions are not proscribed.” The Court noted that convictions for both possession and manufacturing methamphetamine would have been justified in this case “if the methamphetamine that he was convicted of possessing was not the same methamphetamine that he was convicted of manufacturing.” The Court further stated:

[I]f the conviction of possession was premised upon the methamphetamine found in the jar in the trunk of the vehicle, KRS 505.020(l)(a) would require that the possession conviction be vacated. However, if the conviction was premised upon the methamphetamine residue found on the piece of burnt aluminum foil in the duffel bag in the back seat, the conviction would not necessarily violate KRS 505.020(l)(a). This residue would have been sufficient to support a conviction under KRS 218A.1415(1), and a reasonable jury could have believed that this residue was not a product of the manufacturing process occurring in the trunk of the vehicle, e.g., the residue represented methamphetamine purchased on the street or manufactured elsewhere and used personally by Appellant. With such a finding, a reasonable jury could have convicted Appellant of manufacturing methamphetamine (based upon the manufacturing process occurring in the trunk of the vehicle) and possession of methamphetamine (based upon the residue found in the back seat) without violating KRS 502.020(l)(a).

The facts of the present case indicate that the misdemeanor possession charge stemmed from the patdown search of Simpson, while the felony trafficking charge arose following a search of Simpson’s vehicle some three days later. These facts parallel the theoretical situation discussed by the Court in Beaty. We agree that had the police found only the marijuana in Simpson’s car, convictions for both possession and trafficking of that marijuana would have violated Simpson’s constitutional guarantee against double jeopardy. But because the possession charge stemmed from the marijuana the police found during their patdown of Simpson and the trafficking charge arose from the significant amount of marijuana and the digital scales that the police found in the car after the vehicle was impounded and a search warrant obtained, conviction on both charges was constitutionally permissible. A reasonable jury could have found that the marijuana on Simpson’s person was for his own personal use, while the significant amount of marijuana in the car was for trafficking. Thus, the separate charges for possession and trafficking were permissible.

The difference in time between the pat-down and the search of the car bolsters our belief that Simpson’s charges did not spring from the same incident. Although the charge date for both crimes was June 27, 2003, the date when the police pulled Simpson over, the trafficking charges did not arise until June 30, 2003, when the police discovered the marijuana in his car. Simpson seems to argue that the police erred by failing to conduct a warrantless search at the time of his initial arrest, stating:

[t]he Officers had the right to conduct a warrantless search of the vehicle right then and there under two separate exceptions to the warrant requirement; namely, a search incident to a lawful arrest and a search based on probable cause (the marijuana seen in plain view inside the vehicle) and exigent circumstances. Instead, however, the Officers chose to have the vehicle towed to the Covington evidence garage to conduct a search pursuant to a warrant on the following business day, which was three days later.

We do not find fault with the officers’ actions in choosing to secure the car and obtain a search warrant before conducting a search of Simpson’s car.

For these reasons, the decision of the Kenton Circuit Court is affirmed.

ALL CONCUR.

      . Violation of Kentucky Revised Statutes (KRS) 218A.1421(2)(a) is a Class A misdemeanor.

      . Violation of KRS 218A.1421(4) is a Class C felony.

      . KRS 218A.1422, a Class A misdemeanor.

      . Simpson pled guilty to trafficking in eight (8) or more ounces but less than five (5) pounds of marijuana, in violation of KRS 218A.1421(3), a Class D felony, for which Simpson was sentenced to a maximum confinement of two years.

      . Commonwealth v. Burge, 947 S.W.2d 805, 808 (Ky.1996), quoting U.S. Const. Amend. V.

      . KRS 505.020(l)(a).

      . 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

        . Id. at 304, 52 S.Ct. 180.

      . Id..; see also, Burge, supra, at 809.

      . 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990).

      . 509 U.S. 688, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993).

      . Burge, supra, at 811.

      . Jackson v. Commonwealth, 633 S.W.2d 61, 62 (Ky.1982).

      . Mangrum v. Commonwealth, 674 S.W.2d 957, 958 (Ky.1984).

      . 125 S.W.3d 196 (Ky.2003).

      . Id. at 201.

      . Id.

      . Id.

      . Id.

      . Id. at 211.

      . Id. at 212

      . Id.

        .Id. at 213.

      . Id. (Citation omitted).


author: MARY R. RUSSELL, Judge.

text:
    Joshua F. SMITH, Respondent, v. Charles G. SHAW, Appellant.
    No. SC 86292.
    Supreme Court of Missouri, En Banc.
    April 12, 2005.

      Michael B. White, Kansas City, for appellant.
    Andrew J. Gelbach, Warrensburg, John E. Turner, Christopher P. Sweeny, Kansas City, for respondent.
   MARY R. RUSSELL, Judge.

Charles G. Shaw (“Motorist”) appeals from the judgment entered on the jury’s verdict in favor of Joshua Smith (“Passenger”) in Passenger’s personal injury suit against Motorist arising from an automobile accident. Motorist was the driver of the vehicle that struck the vehicle in which Passenger was riding. Passenger’s driver was insured by Farmers/Mid-Century (“Farmers”), which settled with Passenger before he filed suit against Motorist. Farmers paid Passenger the bodily injury liability limit of $25,000 and the underin-sured motorist (“UIM”) benefit of $25,000 available under the driver’s insurance policy.

A jury trial on Passenger’s claims against Motorist resulted in a $200,000 verdict in Passenger’s favor. Motorist moved the trial court to credit the verdict by both the $25,000 bodily injury benefits and the $25,000 UIM benefits that Passenger had received from Farmers. The trial court, however, credited only the bodily injury benefits and awarded Passenger actual damages of $175,000 and $41,337.70 in prejudgment interest. Motorist appeals, arguing that the trial court erred in refusing to also credit the judgment for the $25,000 UIM benefits. Motorist also asserts the trial court erred in overruling his motion to amend the judgment to eliminate the award of prejudgment interest. After opinion by the Court of Appeals, Western District, this Court granted transfer. Mo. Const, art. V, sec. 10. This Court finds no error and affirms the judgment of the trial court.

I. Should the judgment have been credited for the UIM benefits?

Motorist’s first point asserts that the trial court erred in refusing to credit the judgment by the $25,000 UIM benefits that Farmers paid Passenger because the UIM benefits did not constitute a collateral source payment in that Passenger did not incur any expense, obligation, or liability in securing the Farmers policy under which the UIM benefits were paid.

This issue presents an issue of law, and this Court gives de novo review to questions of law. Delta Air Lines, Inc. v. Dir. of Revenue, 908 S.W.2d 353, 355 (Mo. banc 1995).

The collateral source rule is an exception to the general rule that damages in tort are compensatory only. Washington ex rel. Washington v. Barnes Hosp., 897 S.W.2d 611, 619 (Mo. banc 1995). The collateral source rule prevents a tortfeasor from reducing his liability to an injured person by proving that payments were made to the person from a collateral source. Id. The collateral source rule is not a single rule, but is instead a combination of rationales applied to a number of different circumstances to determine whether evidence of mitigation of damages should be precluded from admission. Id.

The application of the collateral source rule prevents an alleged tortfeasor from attempting to introduce evidence at trial that the plaintiffs damages will be covered, in whole or in part, by the plaintiffs insurance. Id. The rule expresses the policy that a “wrongdoer should not benefit from the expenditures made by the injured party in procuring the insurance coverage.” Duckett v. Troester, 996 S.W.2d 641, 648 (Mo.App.1999).

Motorist asserts that the collateral source rule should not be applied to prevent a credit to the judgment in this case because Passenger incurred no expense, obligation, or liability in obtaining the UIM benefits. Motorist’s arguments regarding the collateral source rule in this context, however, are irrelevant. The collateral source rule is a rule of evidence. Motorist did not attempt to use the collateral source rule to present mitigating evidence during trial relating to the $25,000 UIM benefits. Instead, he raised the collateral source rule in his post-judgment motion for credit against verdict, wherein he argued that the verdict should be reduced to reflect both the bodily injury benefits and the UIM benefits Passenger received from Farmers.

Motorist does not cite any authority for using the collateral source rule to obtain a post-judgment credit against a verdict. As such, the trial court did not err in refusing to credit the verdict for the $25,000 UIM benefits based on Motorist’s arguments that they were not from a collateral source.

II. Should prejudgment interest have been awarded?

Motorist’s second point asserts that the trial court erred as a matter of law in overruling his motion to amend the judgment because Passenger was not entitled to an award of prejudgment interest under section 408.040.2, RSMo 2000.

Motorist’s argument presents issues regarding the interpretation of section 408.040.2 and its application to this case. Interpretation of a statute is a question of law. Ochoa v. Ochoa, 71 S.W.3d 593, 595 (Mo. banc 2002). As such, this point warrants de novo review. See Delta, 908 S.W.2d at 355.

Section 408.040.2 states:

In tort actions, if a claimant has made a demand for payment of a claim or an offer of settlement of a claim, to the party, parties or their representatives and the amount of the judgment or order exceeds the demand for payment or offer of settlement, prejudgment interest, at the rate specified in subsection 1 of this section, shall be calculated from a date sixty days after the demand or offer was made, or from the date the demand or offer was rejected without counter offer, whichever is earlier. Any such demand or offer shall be made in writing and sent by certified mail and shall be left open for sixty days unless rejected earlier. Nothing contained herein shall limit the right of a claimant, in actions other than tort actions, to recover prejudgment interest as otherwise provided by law or contract.

On July 14, 2000, Passenger’s attorney sent a letter by certified mail to Geico Casualty Company, Motorist’s insurer, offering to settle Passenger’s personal injury claim against Motorist for $25,000 or the per person liability limit of his liability policy, whichever was greater. Geico maintains that it received the letter no earlier than July 21, 2000, or seven days after the offer was mailed. The letter stated that in accordance with section 408.040 the offer to settle would remain open for 60 days from the date of the letter. No settlement was reached or concluded within 60 days of July 14, 2000, or any time thereafter. Eight months after the letter was sent, Passenger filed suit against Motorist. Passenger’s petition pled specific facts related to his claim for prejudgment interest under section 408.040, and Motorist’s answer did not deny these specific facts, but merely stated: “[Motorist] admits that [Passenger] sent a certified letter to [Motorist’s] insurance company on or about 7/14/00.”

A. Was the offer to settle made in a tort action as required by section 408.040.2?

Motorist first argues that Passenger is not entitled to an award of prejudgment interest because his offer was not made “in a tort action” as required by section 408.040.2. This Court’s primary role in construing statutes is to ascertain the intent of the legislature from the language used in the statute and, if possible, give effect to that intent. Abrams v. Ohio Pac. Exp., 819 S.W.2d 338, 340 (Mo. banc 1991). In determining legislative intent, statutory words and phrases are taken in their ordinary and usual sense. Sec. 1.090; id. There is no need for the rules of statutory construction where the words of a statute are plain and offer only one meaning such that no ambiguity exists. Id.

Motorist seeks to frame the prejudgment interest issue in this case according to the definition of the word “action” or the phrase “in tort actions.” The issue before this Court, however, is not the meaning of these words because the words themselves are not ambiguous. Instead, the application of these words to the statute as a whole is in question. Motorist asks this Court to determine how the phrase “in tort actions” modifies the other language in section 408.040.2.

Motorist argues that the phrase is not merely intended to limit prejudgment interest awards under this section to tort cases, but is also intended to modify the specific requirements for obtaining prejudgment interest under this section. An award of prejudgment interest under section 408.040.2 requires (1) the claimant made a demand for payment or an offer of settlement, and this demand or offer was left open for sixty days; and (2) the amount of the later judgment exceeded the claimant’s demand or offer. Sec. 408.040.2; Anderson v. Shelter Mut. Ins. Co., 127 S.W.3d 698, 702 (Mo.App.2004). Motorist argues that “in tort actions” modifies these requirements such that they are triggered only if the demand or offer is made “during a tort action” or “after a tort action is filed.” Motorist claims that Passenger’s offer was not made “in a tort action” because his offer letter was sent before Passenger filed an action against Motorist.

This Court has explicitly stated otherwise. In Lester v. Sayles, this Court rejected the defendants’ argument that section 408.040 failed to “clearly express whether the statute may be triggered by a demand made before the filing of the lawsuit or only by demand made after the filing.” 850 S.W.2d 858, 873 (Mo. banc 1993). This Court wrote: “In our view, there is no ambiguity. The statute, by its plain language, requires no more than plaintiff make a ‘demand for payment of a claim or an offer of settlement.’ By placing no limitation on when the plaintiff may make this offer, the legislature has answered the question.” Id.

Motorist alleges that this statement from Lester was obiter dictum and fails to specifically address the phrase “in tort actions” as used in section 408.040.2. He instead cites the dissenting opinion in Harrison v. Purdy Brothers Trucking Co., Inc., 312 F.3d 346 (8th Cir. 2002), as authority for his position that the statute contemplates suit first being filed before the offer under section 408.040.2 is made. This Court’s reasoning in Lester, however, is applicable to this case. The transmittal of a certified letter offering to settle a tort claim before the filing of a lawsuit for the alleged tortious conduct referenced in the letter is sufficient to activate the provisions of section 408.040.2, provided that the necessary requirements of the statute are satisfied. The phrase “in tort actions” is intended to limit the application of section 408.040.2 to tort actions, as opposed to other causes of action. The phrase is a pronouncement that prejudgment interest is available in tort cases only and is not intended to qualify when the offer or demand must be made.

B. Was the offer to settle left open for 60 days as required by section 408.040.2?

Motorist contends that Passenger is further not entitled to an award for prejudgment interest because his settlement offer was not left open for 60 days as required under section 408.040.2. Passenger’s letter to Motorist’s insurer stated that “[i]n accordance with that statute, this offer to settle is open for sixty (60) days from the date of this letter.” Motorist alleges that Geico did not have 60 days to evaluate Passenger’s offer because the letter was received seven days after the offer to settle was mailed. He argues that the offer was thereby left open for only 53 days, failing to satisfy the section 408.040.2 60-day requirement and preventing Passenger from collecting prejudgment interest. Passenger responds, however, that Motorist has waived this issue and cannot raise it on appeal because he failed to present any arguments to the trial court suggesting that the offer was not kept open for 60 days. An issue that was never presented to or decided by the trial court is not preserved for appellate review. State ex rel. Nixon v. American Tobacco Co., Inc., 34 S.W.3d 122, 129 (Mo. banc 2000).

The trial court found in its judgment that Passenger complied with section 408.040.2, thereby invoking the court’s authority to award prejudgment interest. Motorist filed a motion to amend the judgment by eliminating the award of prejudgment interest for reasons stated in suggestions filed contemporaneously with his motion. His motion to amend did not raise the issue that the settlement offer did not remain open for 60 days. Instead, his suggestions filed in support of his motion to amend stated: “[Passenger] left his offer open for sixty (60) days as set forth in section 408.040.2.” Motorist’s acknowledgment in his suggestions that Passenger’s offer remained open for 60 days waived any claim Motorist now raises as to this issue.

Motorist further argues, however, that even if he is raising the 60-day issue for the first time, this Court should afford this issue plain error review. This Court will generally not convict a lower court of error on an issue that was not put before it to decide. Lincoln Credit Co. v. Peach, 636 S.W.2d 31, 36 (Mo. banc 1982). The requisite showing to support plain error review is not demonstrated in this case. See Rule 84.13(c).

C. Did the application of section 408.040.2 violate Motorist’s due process rights?

Motorist finally argues that the trial court erred in overruling his motion to amend the judgment because the trial court’s application of section 408.040.2 to award Passenger prejudgment interest violated Motorist’s due process rights. Motorist argues his due process rights were violated in that he was given neither a hearing nor an opportunity to contest Passenger’s delay in filing his action against Motorist.

This Court noted in Lester that section 408.040.2 does not provide for a hearing or other means for contesting a plaintiffs delay in bringing his action. Lester, 850 S.W.2d at 873. The issue of the statute’s failure to provide a hearing was not addressed in Lester, however, because the defendant in that case had not alleged delay. Id. Similarly, this Court need not address Motorist’s constitutional arguments in that at no time before Motorist filed his motion to amend the judgment did he assert that section 408.040.2 was unconstitutional for its failure to provide him a hearing or other means to contest Passenger’s delay in bringing this action.

“Constitutional issues are waived unless raised at the earliest possible opportunity consistent with orderly procedure.” Hollis v. Blevins, 926 S.W.2d 683, 683 (Mo. banc 1996). The record reveals that Motorist did not timely raise this issue before the trial court entered judgment. As such, this argument was waived.

Motorist has failed to show that prejudgment interest should not have been awarded in this case. The trial court did not err in overruling Motorist’s motion to amend the judgment to eliminate prejudgment interest.

III. Conclusion

The judgment of the trial court is affirmed.

WHITE, C.J., WOLFF, STITH, TEITELMAN and LIMBAUGH, JJ., concur.

PRICE, J., not participating.

      . Motorist's motion to strike pages A-45 to A-64 of Passenger's appendix and related portions of Passenger's substitute brief is sustained. Because section D of Passenger's first point relies entirely on the stricken portions of the appendix, section l.D is stricken in its entirety. To the extent that Passenger's other points rely on the stricken appendix pages, those points are modified.

      . At the time Passenger’s settlement offer was made the RSMo 1996 version of this statute applied, but there has been no change to the language of the statute. Any further refer-enees to this section and any further statutory references are to RSMo 2000 unless otherwise indicated.


author: LAURA DENVIR STITH, Judge.

text:
    In the Matter of the CARE AND TREATMENT OF Wilbur SCHOTTEL, Appellant, v. STATE of Missouri, Respondent.
    No. SC 86137.
    Supreme Court of Missouri, En Banc.
    April 12, 2005.

      Emmett D. Queener, Office of the Public Defender, Columbia, for Appellant.
    Jeremiah W. (Jay) Nixon, Atty. Gen., David J. Hansen, Asst. Atty. Gen., Jefferson City, for Respondent.
   LAURA DENVIR STITH, Judge.

Wilbur Schottel appeals the trial court’s denial of his petition for release from confinement as a sexually violent predator (SVP) following an initial hearing at which the judge found that he had failed to meet his burden under section 632.498, RSMo 2000, of showing probable cause to believe that he is safe to be at large and will not re-offend upon release. In determining whether an SVP petitioning for release has met his burden of proof under that statute, a judge is not to weigh the evidence or make credibility determinations, but is merely to determine whether probable cause exists, that is, whether the evidence presents a triable issue of fact that the person is safe to be at large and will not reoffend. Here, the record unequivocally shows that Mr. Schottel presented sufficient evidence to meet this burden. This Court therefore reverses the judgment and remands the case for the further hearing required under section 632.498 before a judge or jury as fact finder to determine whether Mr. Schottel should continue to be confined as an SVP.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Commitment of Mr. Schottel.

In 1995, Mr. Schottel was arrested for the molestation of five girls, ages eight to thirteen years. Later that year, he pled guilty to one count of sodomy and was sentenced to fifteen years in prison. In February 2000, after he had been released from prison for one day, the State filed a petition in the Clay County Circuit Court alleging that he was an SVP within the meaning of section 632.480 and sought his confinement in a Department of Mental Health facility.

The court found probable cause to believe that Mr. Schottel was an SVP. Initially, Mr. Schottel opposed his designation as an SVP and challenged the SVP statute on constitutional grounds. Before his objections could be ruled on, he stipulated that he was an SVP under section 632.480 and was committed to the Department of Mental Health (DMH). See Schottel v. State, 121 S.W.3d 337, 338 (Mo.App. W.D.2003).

B. Periodic Examinations of Mental Condition of SVP.

A person is not committed as an SVP indefinitely. Section 632.498 provides for “a current examination of the person’s mental condition made once every year by the director of the department of mental health or designee.” The director issues a report and provides it to the court and the committed person. If the director determines “that the person’s mental abnormality has so changed that the person is not likely to commit acts of sexual violence if released, the director shall authorize the person to petition the court for release.” Sec. 632.501. The court then holds a hearing at which the burden is on the State to show “beyond a reasonable doubt that the petitioner’s mental abnormality remains such that the petitioner is not safe to be at large and that if discharged is likely to commit acts of sexual violence.” Id.

But, if the director does not determine that the person qualifies for release, then a different process ensues. The director must inform the committed person of his right to petition the court for release over the director’s objection. If the SVP petitions for release, the court holds a preliminary probable cause hearing, and:

[I]f the court at the hearing determines that probable cause exists to believe that the person’s mental abnormality has so changed that the person is safe to be at large and will not engage in acts of sexual violence if discharged, then the court shall set a hearing on the issue.

Sec. 632.498 (emphasis added). If the court sets such a second healing, either party can request a jury trial and to have the petitioner’s mental condition evaluated by experts. Id. Section 632.498 provides that the burden of proof at that second hearing:

shall be upon the state to prove beyond a reasonable doubt that the committed person’s mental abnormality remains such that the person is not safe to be at large and if released is likely to engage in acts of sexual violence.

C. Periodic Examinations of Mr. Schottel’s Mental Condition.

Mr. Schottel was committed as an SVP in June 2000. As required by section 632.498, the director of DMH conducted a review and issued a report in June 2001 and again in June 2002. Both reports recommended that Mr. Schottel not be released. Mr. Schottel petitioned for court review on both occasions. It is the denial of the second of these petitions, following an evidentiary hearing in July 2003, that is the subject of this appeal.

At the probable cause hearing on the director’s second refusal to recommend release, Mr. Schottel orally moved that section 632.498 be held unconstitutional. The motion was overruled, and Mr. Schottel offered expert testimony in support of his claim that he had shown “probable cause exists to believe that [his] mental abnormality has so changed that [he] is safe to be at large and will not engage in acts of sexual violence if discharged ...” Sec. 632.498. The State offered contrary evidence, including the June 2002 report, other expert testimony, and the June 2003 report prepared while the court was considering the director’s 2002 refusal to recommend release.

After considering this evidence, the court issued an order denying Mr. Schot-tel’s petition for release without further hearing. The order denying relief made no factual findings. It simply tracked the statutory language by stating that the judge found “no probable cause that the respondent’s mental abnormality has so changed that he is safe to be at large and will not engage in acts of sexual violence if discharged.”

Because his petition was denied at the probable cause stage, Mr. Schottel was not given a second hearing — effectively a trial on the merits — before a judge or jury. He appealed to the Missouri Court of Appeals, Western District. That court transferred the case to this Court because it involves the constitutional validity of section 632.498 and so is within this Court’s exclusive appellate jurisdiction. Mo. Const, art. V, sec. 3.

II. CONSTITUTIONAL CHALLENGE TO SECTION 632498

Mr. Schottel alleges that section 632.498 denies him due process because it requires that, in order to be entitled to an eviden-tiary hearing on whether he is still an SVP, he must first show that he is safe to be at large and will not reoffend. This means that he must meet a higher burden to get an evidentiary hearing than the State is required to meet at that hearing or that it was required to prove in order to commit him, initially. Further, the standard set by the statute is impossible for him to meet in that it requires him to show that he will not, rather than just likely will not, ever offend in the future. This claim presents an issue of law, which this Court determines de novo. Ochoa v. Ochoa, 71 S.W.3d 593, 595 (Mo. banc 2002).

A. Preservation of Constitutional Issue.

Mr. Schottel raised his constitutional challenge at the initial hearing on his second petition for release. The State suggests that he should have raised the issue during his initial commitment proceeding or when he challenged and appealed denial of release following his first yearly review in June 2001. Generally, a constitutional question must be raised at the earliest possible opportunity in order to be preserved for appellate review. City of Chesterfield, v. Dir. of Revenue, 811 S.W.2d 375, 378 (Mo. banc 1991). Mr. Schottel did raise a constitutional challenge in his initial commitment proceeding, but when he stipulated to his status as an SVP, that challenge became moot. In any event, the propriety of Mr. Schottel’s initial commitment and the denial of his first petition for release are not before this Court on this appeal. This appeal concerns only the denial of Mr. Schottel’s second petition for release, filed in October 2002, and his success in this petition is not determined by whether his prior claims were meritorious. The State cites no authority for its argument that this Court nonetheless should hold that a question is not preserved for purposes of appeal if it could have been raised to oppose an earlier denial of release, and this Court declines to so hold.

B. Section 632498 is Constitutional.

As noted, under section 632.498, if the director of DMH objects to release, then the committed person may petition for release over objection. The court normally must hold an initial hearing on the petition, and:

If the court at the hearing determines that probable cause exists to believe that the person’s mental abnormality has so changed that the person is safe to be at large and mil not engage in acts of sexual violence if discharged, then the court shall set a hearing on the issue.

Sec. 632.498 (emphasis added). Mr. Schot-tel claims that section 632.498’s placement of the burden on him to show that he “is” safe and “will not” engage in acts of sexual violence requires him to do the impossible — prove that he absolutely, with certainty, will be safe and will not reoffend if released. He argues that, since no one can predict the future with absolute certainty, this standard is impossible to meet. He further argues that placing a higher standard of proof on the committed person in order to cause the issue of release to proceed to trial than is placed on the State to obtain a trial regarding the initial confinement under section 632.480, or to keep him confined once he makes a probable cause showing, amounts to a violation of due process.

This Court rejects Mr. Schottel’s hyper-technical reading of the words “is” and “will not.” Statutes are presumed to be constitutional and will not be invalidated unless they clearly violate a constitutional provision. Board of Educ. of St. Louis v. State, 47 S.W.3d 366, 368-369 (Mo. banc 2001). The general rule of statutory construction requires a court to determine the intent of the legislature based on the plain language used and to give effect to this intent whenever possible. Delta Air Lines v. Dir. of Revenue, 908 S.W.2d 353, 355 (Mo. banc 1995). To ascertain legislative intent, the courts should examine the words used in the statute, the context in which the words are used and the problem the legislature sought to remedy by the statute’s enactment. State ex rel. Whiteco Indus., Inc. v. Bowers, 965 S.W.2d 203, 207 (Mo.App. E.D.1998). Any doubt concerning the constitutionality of a statute must be resolved in favor of its validity. State v. Mahurin, 799 S.W.2d 840, 842 (Mo. banc 1990).

Applying these principles here, this Court agrees with the State that section 632.498, read as a whole, does not require the petitioner to prove that he is absolutely certain not to reoffend in order to be entitled to a second hearing. As Mr. Schottel notes, it would be absurd to put such a requirement in place and then to require a further hearing before a fact finder at which a far lesser standard is required to be met and the burden of proof is shifted to the State. When examining statutes, this Court presumes that the legislature did not intend to enact an absurd law and favors a construction that avoids unjust or unreasonable results. State ex rel. McNary v. Hais, 670 S.W.2d 494, 496 (Mo. banc 1984). “In interpreting statutes, we must both strive to implement the policy of the legislature, and also harmonize all provisions of the statute.” 20th & Main Redevelopment P’ship v. Kelley, 774 S.W.2d 139, 141 (Mo. banc 1989).

Read in context, it is clear that, at the initial hearing, the legislature merely intends the judge to act in a gatekeeper role. He or she is not asked to reach a final decision as to the person’s danger to the community or whether the person is still an SVP, but to determine whether “probable cause exists to believe ” that the person’s abnormality has so “changed” that the person is safe to be at large and will not engage in acts of sexual violence — that is, will not commit sexually violent offenses — if released.

In this context, the legislature’s use of the words “will not” is not intended to require proof of certainty, but merely to constitute a shorthand way of referring to the requirement that the petitioner must make a preliminary showing that he is not likely to engage in further acts of sexual violence, without restating the longer and more awkward description of an SVP contained in section 632.480.5. As the State puts the issue:

The legislature used slightly different language in 632.498 to express that level of risk — probable cause the person will not offend — but clearly did not intend to establish a different level of risk.
To suggest that the legislature intended to create such a variety of risk levels when it used the terms probable cause to believe the person “will not” and “likely” strains credulity — and is an obvious attempt to interpret the statute in a way that makes it unconstitutional.

Despite the fact that the legislature “has chosen to write these various ... statutes in slightly different ways and with slightly different language, their plain meaning, as in the statute before us, is clear.” Lewis v. Gibbons, 80 S.W.3d 461, 465 (Mo. banc 2002) (interpreting residency requirement to qualify as candidate for judge). The petitioner need not show a certainty, but merely that there is probable cause to believe that he is safe to be at large and is more likely than not to not reoffend.

III. PROBABLE CAUSE DETERMINATION

Mr. Schottel argues that the court below erred in holding that he had not shown probable cause to believe that he was more likely than not to not reoffend. This Court agrees that the evidence presented by Mr. Schottel was sufficient to constitute probable cause to determine that he no longer met the statutory definition of an SVP. Mr. Schottel presented a written evaluation completed by Dr. Delaney Dean, an attorney and psychologist, after she evaluated Mr. Schottel in January 2002 and again in October 2002. Dr. Dean concluded after both evaluations that “Mr. Schottel’s mental abnormality has changed such that, if released, he is unlikely to engage in acts of sexual violence.”

Dr. Dean supported her evaluation with findings that Mr. Schottel had diligently cooperated with treatment, had successfully completed assigned tasks, controlled his impulsivity, thereby showing self-control, that he had admitted that he had sexually offended and expressed awareness of the harm he had caused his victims and remorse for the harm, and that he had a relapse prevention program that is “well thought-out and reasonable.” This led Dr. Dean to believe that Mr. Schottel’s risk level for re-offending is “quite low” and that he fit only one of 20 risk factors associated with re-offending.

Mr. Schottel also presented deposition testimony of Dr. Luis Rosell, a licensed clinical psychologist and experienced certified sex offender treatment provider. Dr. Rosell came to very similar conclusions concerning Mr. Schottel’s cooperativeness and noted that he had completed every class that had been offered to him at the Missouri Sexual Offender Treatment Center (MSOTC), although not a full relapse-prevention class, as it had not yet been offered to him. Dr. Rosell also expressed concern that what some of the MSOTC staff interpreted as risk signs, such as asking if he could subscribe to a newspaper, might well not be related to sex offender recidivism. In Dr. Rosell’s opinion, Mr. Schottel’s risk of re-offense was low at the time he stipulated to being an SVP, less than “more likely than not,” and his risk at the time of deposition was even lower, less than six percent over five years.

The State presented contrary evidence from Dr. Jay Englehart, the medical director of MSOTC and a member of Mr. Schottel’s treatment team. As a general proposition, Dr. Englehart stated that the MSOTC staff believed that the minimum amount of time to complete treatment is four and one half to five years, while the “optimal” number of years to complete the treatment is eight years, and having been in treatment for less than this time, Mr. Schottel was not ready for release. He also believed that Mr. Schottel did not have sufficient insight into his condition, did not accept the diagnosis of pedophilia as true, and had sufficient trouble following authority in treatment so that he might well have trouble conforming to the law if released.

Dr. Martha Bellew-Smith, the director of MSOTC, opposed release on similar grounds. She said Mr. Schottel is just in the first of four stages of treatment and that he has shown a lack of respect for authority through rule violations such as giving property to other residents, disobeying staff orders, and possession of contraband such as a long earphone wire and newspaper photographs. The State also presented evidence from his 2008 review showing lack of commitment to treatment.

Clearly, a question of fact was presented by this evidence as to whether Mr. Schot-tel was still an SVP. At a hearing on the merits, a jury or judge may find that the State has proved beyond a reasonable doubt that he is. But, that is not the issue on this appeal. This appeal concerns whether Mr. Schottel has made an initial probable cause showing that he is no longer an SVP. While the State’s experts thought he was still an SVP, whether or not they, rather than Mr. Schottel’s experts, are correct presents a triable issue of fact. Mr. Schottel’s showing, therefore, was sufficient to constitute the probable cause necessary to entitle him to a second merits hearing under section 632.498.

Mr. Schottel analogizes the probable cause standard, in this civil context, to the summary judgment standard applied to decide whether a fact issue exists for trial in a civil case. As he notes, in determining a summary judgment motion, the judge similarly is not to decide what the facts are or to make credibility determinations, but simply to determine whether there is a triable issue of fact. This Court reviews the trial court’s summary judgment decision de novo. See ITT Comm’l Fin. Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 377-78, 382 (Mo. banc 1993).

Even more apt is Mr. Schottel’s analogy of the probable cause standard under section 632.498 to that required to make a prima facie showing that a particular fact exists, sufficient to shift the burden of proof or raise an issue of fact in a civil context. This is the approach taken by the Washington Supreme Court in In re Detention of Petersen, 145 Wash.2d 789, 42 P.3d 952 (2002), in interpreting the very similar “probable cause” standard set out in the 1995 version of their SVP statute, section 71.09.090(2). The 1995 Washington statute, like the Missouri statute at issue here, required a second hearing on whether the committed person is an SVP if the person made a probable cause showing at an initial hearing before the court, stating:

[t]he court shall set a show cause hearing to determine whether facts exist that warrant a hearing ... If the court at the show cause hearing determines that probable cause exists to believe that the person’s mental abnormality or personality disorder has so changed that the person is not likely to engage in predatory acts of sexual violence if conditionally released to a less restrictive alternative or unconditionally discharged, then the court shall set a hearing on the issue.

Sec. 71.09.090(2) RSW 1995 (emphasis added).

Petersen analogized this probable cause standard to that used in determining the validity of a search under the Fourth Amendment, and then stated, “Probable cause exists if the proposition to be proven has been prima facie shown.” Petersen, 42 P.3d at 957. Such a showing could be made if the petitioner presented evidence which, if believed, showed he no longer met the SVP definition. Petersen said that this meant that the trial judge was not to engage in credibility determinations at the probable cause hearing. If a prima facie showing was made, raising a triable issue of fact, then a second hearing was required. Id. Only at that second hearing would such credibility determinations be made.

The Petersen approach is the appropriate one for applying the “probable cause” standard set out in section 632.498. The trial court acts as a gatekeeper to determine whether a triable issue of fact has been raised by petitioner’s evidence. If so, then the court must hold a second, eviden-tiary hearing. If no triable issue of fact is shown by the petitioner’s evidence, then a further hearing is not required. In deciding whether a triable issue exists, the judge is not to engage in credibility determinations. If credibility or a weighing of evidence is required, then a triable issue exists and the court should set the eviden-tiary hearing provided for in the final clause of section 632.498. At that second hearing, which is held before either the judge or a jury as fact finder, the statute makes it the State’s burden to prove beyond a reasonable doubt that petitioner’s mental abnormality remains such that he is not safe to be at large and if released is likely to engage in acts of sexual violence. Sec. 632.498.

Mr. Schottel’s experts clearly offered sufficient evidence to meet the probable cause standard and raise a triable issue on the question whether he is was more likely than not to engage in acts of sexual violence if released. It was incumbent upon the trial court not to make credibility determinations or to weigh and balance this expert testimony with the evidence offered by the State, but rather to set the matter for the further hearing required by section 632.498. It did not do so. This was error.

The State suggests that, even were this Court to remand because Mr. Schottel’s evidence met the “probable cause” standard required under section 632.498 at the time the court denied his petition, this Court should direct the court on remand to repeat the initial hearing rather than hold a second, evidentiary hearing. In support, the State notes that, while this case was on appeal, the legislature repealed the language in section 632.498 entitling the committed person to a further hearing upon a showing of probable cause and replaced it with language entitling the committed person to a further hearing only upon a showing by a “preponderance of the evidence” that the person is safe to be at large and will not re-offend if released.

The Court rejects this approach. Mr. Schottel met his burden at the initial hearing on his second petition for release, a hearing held under the 2000 version of section 632.498, and was thereby entitled to proceed to a second hearing on the merits of his petition. The fact that section 632.498 was later amended to change the burden of proof that Mr. Schottel may be required to meet in the future cannot affect the fact that he met his burden of proof and was entitled to a hearing on the merits of his October 2002 petition for release. Since he was incorrectly denied such a hearing, he is entitled to receive it on remand. At that hearing, “the burden of proof at the hearing shall be upon the state to prove beyond a reasonable doubt that the committed person’s mental abnormality remains such that the person is not safe to be at large and if released is likely to engage in acts of sexual violence.” Sec. 632.498.

For the reasons set out above, the judgment is reversed, and the case is remanded.

WHITE, C.J., WOLFF, PRICE, TEITELMAN and LIMBAUGH, JJ., and BLACKMAR, Sr.J., concur.

RUSSELL, J., not participating.

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

      . Mr. Schottel also appealed the denial of his first release petition, filed February 27, 2002, arguing that the court erred in refusing to release him over the director's objection without conducting any sort of hearing. This appeal was dismissed as moot once the court held such a probable cause hearing on the second release petition, filed October 31, 2002. Schottel, 121 S.W.3d at 340.

      . As the State reluctantly notes, a constitutional issue has been found to be preserved, even if not raised in the initial pleadings, if it was raised sufficiently early in the process to allow the trial court to identify and rule on the issue and to give adequate notice to the opposing party. State ex rel. Tompras v. Board of Election Com'rs of St. Louis County, 136 S.W.3d 65, 66 (Mo. banc 2004). See also Call v. Heard, 925 S.W.2d 840, 847 (Mo. banc 1996) (motion for new trial not too late where no surprise resulted). No prejudice arose from waiting to raise the issue until the initial court appearance on the petition for release at issue here.

      . Mr. Schottel also initially contended in this Court that section 632.498 is not severable from the remainder of the sections of chapter 632 involving commitment of sexually violent predators and that the entire act must be held unconstitutional, precluding commitment of any person as a sexually violent predator. He conceded at oral argument, however, that his challenge to the other sections of the code has been mooted by the 2004 amendments to section 632.498, found in RSMo Supp.2004, which change the standard for determining when someone committed as an SVP is subject to release under the statute. He now challenges only section 632.498 as it stood prior to the 2004 amendment.
      The State asks that this Court nonetheless offer its opinion on the constitutionality of the current version of the statute also and to apply it to Mr. Schottel. However, as he was denied release under the previous version of the statute, that is the only one before the Court. This Court cannot offer advisory opinions on issues that may arise in the future as to Mr. Schottel or other persons committed as SVPs. See In the Matter of the Estate of Van Cleave, 574 S.W.2d 375, 376 (Mo. banc 1978) (this Court cannot and does not issue advisory opinions). See also State ex inf. Danforth v. Cason, 507 S.W.2d 405, 418 (Mo. banc 1973) (accord).

      . An SVP is a "person who suffers from a mental abnormality which makes the person more likely than not to engage in predatory acts of sexual violence if not confined ...” Sec. 632.480.5.

      . Mr. Schottel’s desire to have a newspaper was interpreted by MSOTC staff as an attempt to learn about future victims; however, Dr. Rosell stated that many inmates request newspapers and he did not consider this to be a risk factor.

      . This Court notes that a probable cause standard is also applied in the civil context in malicious prosecution cases, although there the question is whether the plaintiff in a prior lawsuit lacked probable cause for initiating the prior civil action. In that context, probable cause constitutes "a belief in the facts alleged, based on sufficient circumstances to reasonably induce such belief by a person of ordinary prudence in the same situation, plus a reasonable belief by such person that under such facts the claim may be valid under the applicable law ... factual disputes are for the juiy to decide.” Kelley v. Kelly Residential Group, 945 S.W.2d 544, 549 (Mo.App.1997).

      . In some ways, Petersen’s approach could be considered an even more difficult standard to meet than that in Missouri criminal cases involving issuance of a warrant, for in the latter cases, "only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.” State v. Hill, 854 S.W.2d 814, 819 (Mo.App.E.D.1993). This Court also notes that, because Washington courts have interpreted the Washington statute to place the burden of proof on the state to show lack of probable cause, Petersen also says the standard can be met if the State fails to present proof that the person continues to be an SVP.

      . This burden is the same under the 2000 statute and under the amended version of the statute enacted in 2004.


author: PER CURIAM.

text:
    In re William M. TACKETT, Respondent.
    No. SC 86522.
    Supreme Court of Missouri, En Banc.
    April 14, 2005.
    Maridee F. Edwards, Carl E. Schaeper-koetter, Office of Chief Disciplinary Counsel, Jefferson City, for Informant.
    Edward D. Robertson, Jr., Jefferson City, for Respondent.
    Noel (Neil) Bisges, Jefferson City, Ami-cus Curiae in Support of Disbarment/Suspension.
    Jeremiah W. (Jay) Nixon, Atty. Gen., James R. Layton, State Solicitor, John M. Roodhouse, Asst. Atty. Gen., Jefferson City, Amicus Curiae Missouri Attorney General.
   PER CURIAM.

The chief disciplinary counsel seeks discipline for William M. Tackett’s conduct relating to an ex parte communication with one judge and, in an unrelated matter, his questioning of the integrity of a different judge. The parties have submitted the case based principally on a stipulation of facts as supplemented by additional testimony taken before a disciplinary hearing panel.

Upon de novo review of the stipulated facts and other record evidence, and after hearing argument from the parties, this Court finds that the stipulated facts and other record evidence do not support a finding of intentional misrepresentation or falsehood by William M. Tackett. The stipulated facts and other record evidence do show that Mr. Tackett violated: (1) Rule 4-3.5 (prohibiting improper ex parte communications) and (2) Rule 4-8.2(a) (prohibiting statements concerning the integrity of a judge the lawyer knows to be false or has reckless disregard as to the statements’ truth or falsity).

Considering all the aggravating and mitigating factors with respect to the proper discipline, including the absence of any prior violations by Mr. Tackett, his cooperation with disciplinary authorities, his admission that the conduct was improper, and his willingness to accept sanctions, this Court determines that Mr. Tackett should be, and he is hereby, reprimanded.

WHITE, C.J., WOLFF, STITH and TEITELMAN, JJ., and DRAPER, SHAW and QUIGLESS, Sp.JJ., concur.

PRICE, LIMBAUGH and RUSSELL, JJ., not participating.


text:
    Norma BUTTREY and Alfred Buttrey, Plaintiffs/Appellants, v. Walter C. BOARDWINE, D.O., Mineral Area Regional Medical Center and Sulzer Spine-Tech Surgical, Inc., Defendants/Respondents.
    Nos. ED 84076, ED 84276.
    Missouri Court of Appeals, Eastern District, Division Four.
    Jan. 25, 2005.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 23, 2005.
    Application for Transfer Denied April 26, 2005.
    Stephen F. Meyerkord, Steven D. Rine-berg, St. Louis, MO, for appellants.
    Kenneth C. Brostron, Judith C. Bros-tron, St. Louis, MO, Thomas N. Sterchi, Paul S. Penticuff, Kansas City, MO, Philip L. Willman, Matthew S. Hendricks, St. Louis, MO, for respondents.
    Before LAWRENCE E. MOONEY, P.J., LAWRENCE G. CRAHAN and MARY K. HOFF, JJ.
   ORDER

PER CURIAM.

This consolidated appeal arises out of plaintiffs’ actions brought against a surgeon, a hospital, and a medical-device manufacturer. As to their action against Dr. Boardwine, the plaintiffs allege the trial court erred (1) by denying their motion to strike for cause venireman Everding; and (2) in submitting a withdrawal instruction. As to their action against defendant Mineral Area Regional Medical Center, the plaintiffs allege the trial court erred in granting the defendant’s motion to dismiss the plaintiffs’ negligent credentialing claims against defendant. As to defendant Sulzer Spine-Tech Surgical, Inc., plaintiffs allege the trial court erred in granting summary judgment in favor of the defendant on plaintiffs’ claim for negligent en-trustment.

We have reviewed the parties’ briefs and the record on appeal. No error of law appears. 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 judgment is affirmed. Rule 84.16(b).


author: NANCY STEFFEN RAHMEYER, Judge.

text:
    James Milborn WEST, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
    No. 25771.
    Missouri Court of Appeals, Southern District, Division One.
    Jan. 26, 2005.
    Application for Transfer Denied March 23, 2005.
    Application for Transfer Denied April 26, 2005.

      John William Simon, Clayton, for appellant.

      Jeremiah W. (Jay) Nixon, Attorney General, Shaun J. Mackelprang, Assistant Attorney General, Jefferson City, for respondent.
   NANCY STEFFEN RAHMEYER, Judge.

James Milborn West (“Movant”) pled guilty to the class A felony of assault in the first degree, a violation of section 565.050; he was sentenced to serve seventeen years in the Missouri Department of Corrections. Movant timely filed a motion pursuant to Rule 24.035. The motion was overruled and this appeal follows.

In his first point, Movant contends his plea counsel (“Counsel”) denied him effective assistance of counsel by failing to properly prepare the mental health defense of diminished capacity and, because of this failure, Movant was forced to enter a guilty plea. Movant claims he only pled guilty because he was forced to choose between pleading guilty, going to trial without a prepared defense of diminished capacity, or going to trial pro se without the diminished capacity defense. Movant’s first point on appeal relies on a foundation of testimony at the evidentiary hearing that Movant suffered from brain damage and related mental retardation which substantially impaired his ability to respond to a stressful situation on the night of the assault and, therefore, he had a diminished capacity defense available to him at trial. During his evidentiary hearing, Movant presented the testimony of a forensic psychiatrist, Dr. Bruce Harry, who concluded, after reviewing a number of Movant’s records and conducting his own tests, that Movant suffered from a mental defect that diminished his capacity to act with “awareness.” Movant also presented testimony during the hearing of family members who were familiar with the injuries from his previous accidents.

Our review of the denial of a post-conviction motion is limited to a determination of whether the findings of fact and conclusions of law of the motion court are clearly erroneous. Smith v. State, 28 S.W.3d 417, 419 (Mo.App. S.D.2000). The motion court’s findings are deemed clearly erroneous if, after a review of the entire record, we are left with a firm and definite impression that a mistake has been made. Id. In order to prevail on his claim under Rule 24.035, Movant has the burden of proving his claim of ineffective assistance of counsel by a preponderance of the evidence. Dillard v. State, 137 S.W.3d 483, 486 (Mo.App. S.D.2004). In the absence of a showing to the contrary, counsel is presumed to have provided effective assistance to Movant. Peet v. State, 22 S.W.3d 792, 794 (Mo.App. S.D.2000). The presumption is that the challenged action was sound trial strategy. Eichelberger v. State, 134 S.W.3d 790, 792 (Mo.App. W.D.2004). Movant’s conviction was a result of a guilty plea; his claim of ineffective assistance of counsel is material only if it affects the voluntary and intelligent character of the plea. Risalvato v. State, 856 S.W.2d 370, 373 (Mo.App. W.D.1993).

At the evidentiary hearing, the motion court was presented with the diametrically opposed testimony of Movant and Counsel. Movant claimed that on December 25, 2000, when his wife (“Victim”) admitted that she had an affair with two different men, he “went berserk” and, while under the influence of drugs and alcohol, administered numerous kicks and blows to Victim’s head and body. Although he stated that he quit when he saw what he had done and that the beating only lasted ten to fifteen minutes, on cross-examination he was evasive about what occurred after the beating. In fact, he was evasive during most of the cross-examination, even concerning whether he had taken an oath to tell the truth at the guilty plea hearing. He also claimed that Counsel told him to lie at that hearing when asked about her job performance.

Movant admitted that he accepted the plea agreement, which called for a seventeen-year sentence, but only because Counsel told him he would probably get thirty years if he went to trial. He now claims that Counsel was actually working for the prosecution. After doing research in the prison library, he was informed in “black and white” of a bonus system in which prosecutors and public defenders work together to receive a bonus for each conviction. When questioned about this system, Movant again lost his memory and became evasive; however, he did state that his law research convinced him that he would have gotten a much shorter sentence had he taken his chances with a jury, who would have been told of a “sudden passion” defense.

On the other hand, Counsel testified at the evidentiary hearing that she did not pursue a diminished capacity defense because Movant insisted, up until the time of the plea, that he did not commit the assault and that some other individual injured Victim. Counsel prepared an alibi defense, which Movant’s family supported, because Movant claimed an alibi. In preparation for trial, Counsel interviewed most of the family members, neighbors and the Victim outside the presence of her family. Movant and his family claimed that the charges were all a conspiracy against him and that he was set up by Victim’s family in a “Hatfield-McCoy” family dispute. The alibi defense was not entirely implausible in that Victim initially claimed to have been attacked by two women who came to her door and there was a longstanding dispute between the families of Movant and Victim.

Counsel initiated the discussion of mental health issues in letters to Movant early in the case after a discussion with Victim about Movant’s previous accidents. She had doubts about Movant’s truthfulness concerning his denial of the assault after private discussions with Victim, but told him that his defense was entirely his choice. Counsel testified that she repeatedly discussed possible defenses with Movant, including mental health and sudden passion defenses; in addition, she obtained several continuances from the court to investigate Movant’s mental health issues. Counsel emphasized to Movant the difference between mental health issues and a mental health defense. She told him that with a mental health defense he would have to take the stand and even role-played with Movant by asking him questions as if she were the prosecutor. Specifically, she told him that a jury might not accept his defense that he did not commit the crime.

Movant chose to proceed on the theory that he was being framed by Victim’s family, who had themselves committed the assault against Victim. Because Movant would not admit to committing the offense, Counsel could not use the mental health defense of diminished capacity. Based upon Movant’s decision and his denial of committing the assault, Counsel did not hire a mental health expert nor did she secure further services in that line of defense.

The motion court found that Movant

stated under oath that his plea was entered freely, voluntarily, and of his accord, that he was satisfied with the representation of [his counsel], that she had done the things that he had asked, that she had not failed to do the things he asked, that she had been available when he needed to talk and that she had counseled with Movant about the criminal proceedings.

The motion court also found that statements made to the contrary as to Counsel’s performance were not credible because Movant admitted that he would lie under oath to “get what he want[ed].” The court noted the banker’s box full of documents which Counsel used to prepare a defense for Movant and the pleading listing six alibi witnesses that was filed with the court which supported Counsel’s claim that she pursued an alibi defense.

The court further noted that none of the witnesses called by Movant supported Dr. Harry’s conclusions that Movant lost the ability to control his impulses or that he encountered difficulty in evaluating the consequences of his behavior as theorized by Dr. Harry. In fact, Dr. Harry did not speak with Movant’s family members, coworkers, police who investigated the assault, the Victim, or anyone familiar with the circumstances of the events which occurred in December 2000, other than Movant. The court noted that Dr. Harry provided no reasonable explanation concerning Movant’s behavior, which included fleeing the scene of the crime and failing to call for medical assistance for Victim or to file a police report, that would be consistent with his theory that Movant was unable to understand the consequences of his actions. Thus, Movant’s motion to vacate, set aside, or correct judgment and sentence was overruled by the motion court. We do not have a firm and definite opinion that a mistake has been made nor that the findings of the motion court are clearly erroneous.

Appellate courts give due regard to a motion court’s opportunity to assess the credibility of witnesses who appeared before it. Bates v. State, 967 S.W.2d 683, 683 (Mo.App. S.D.1998). The motion court is entitled to believe or disbelieve any or all of the testimony of any witness. Id. at 684. This Court, therefore, will defer to the motion court’s determination of witness credibility. Waters v. State, 128 S.W.3d 648, 652 (Mo.App. S.D.2004). The motion court was free to believe Counsel that she prepared the defense that Movant chose, especially since the record supports the naming of numerous alibi witnesses. The court also believed that Counsel alerted Movant to various possible defenses, including a diminished capacity defense, that were available if he would admit to the assault. Counsel even requested continuances to further investigate a possible defense of diminished capacity.

Furthermore, a review of the entire transcript of the evidentiary hearing indicates that Movant’s credibility was suspect even within the evidentiary hearing itself. Movant contradicted himself and made conspiracy allegations against all law enforcement personnel. Movant contended that Counsel actually worked for the prosecution in a quota system that gave bonuses for felony convictions. When pressed on where he received his information for his various accusations, Movant again became vague in his answers.

We also note the discrepancy in Mov-ant’s testimony at the evidentiary hearing concerning the beating, which he claimed could not have lasted more than ten to fifteen minutes, and the extent of the injuries to Victim. Victim received a broken rib, had a chest tube inserted for fluid in the lungs for a collapsed lung, was bruised throughout her body, and sustained a cut to her carotid artery which subsequently caused a stroke. Victim’s testimony at the guilty plea hearing described a bullying husband who beat her throughout the marriage, called her children names, and constantly accused her of doing things she had not done. There is no question that despite Victim’s massive injuries, Movant left Victim alone for at least a day after the incident without seeking any medical care for her. Movant admitted that he did not seek medical care because he knew he would be in trouble.

At the guilty plea hearing, Movant was asked about his mental health. He described two car accidents, including one in which he suffered a closed head injury. He also testified that he had seen a psychiatrist in the past, but he was not diagnosed with a mental disease or defect. Movant affirmatively expressed that he was satisfied with Counsel’s representation, that she had done what he had instructed her to do. He stated that Counsel had not failed in any respect, had been available to him, and responded when he needed her to do so. At the conclusion of the guilty plea proceedings, Movant again asserted that he had sufficient opportunity to discuss his case with Counsel and declined to speak about Counsel’s services, even when the court gave him opportunity to do so without Counsel present. We find no error in the trial court’s determination that Movant failed to meet his burden of proof that his plea was involuntary and unknowing because Counsel failed to prepare a proper mental health defense. Movant’s first point is denied.

Movant’s second point is not a model of clarity. We actually cannot discern what error Movant has attempted to claim. At first blush, it appears that Movant claims the sentencing judge erred in denying the post-conviction relief claim because it was the same judge that caused him to receive ineffective assistance of counsel by denying him a continuance to hire private counsel. Movant did not request a eontinu-anee, nor did he hire independent counsel. He simply asked for a different public defender at a pretrial hearing prior to the trial date. The court explained the lack of its authority in the assignment of public defenders. We find no error in the dialogue between the court and Movant.

If Movant intends by his point to argue that the trial court erred by not allowing him to obtain private counsel, then a 24.035 motion is the wrong vehicle to assert such claims. The Missouri Supreme Court has stated that, “Rule 24.035 is the exclusive method of appeal only as to the grounds enumerated within the rule. All other grounds are excluded from the rule by omission.” Brown v. State, 66 S.W.3d 721, 728 (Mo. banc 2002). Rule 24.035 sets forth the claims by which Mov-ant may seek relief. These claims are, “ineffective assistance of trial and appellate counsel, that the court imposing the sentence was without jurisdiction to do so, or that the sentence imposed was in excess of the maximum sentence authorized by law.” Rule 24.035. Neither the alleged failure to grant a continuance, nor the alleged failure to allow substitute counsel are cognizable in a post-conviction motion. Point II is denied. The judgment is affirmed.

GARRISON, P.J., and PREWITT, J., concur.

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

      . All rule references are to Supreme Court Rules (2003), unless otherwise stated.

      . We note that Movant does not claim that he actually hired private counsel.