author: JOSEPH M. ELLIS, Judge.

text:
    BLUE RIDGE BANK AND TRUST CO., Respondent, v. Rhonda TROSEN, et al., Respondents, Randy and Nancy Hanson, Appellants.
    No. WD 69880.
    Missouri Court of Appeals, Western District.
    Feb. 9, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 30, 2010.
    Application for Transfer Denied May 25, 2010.

      Mark Bredemeier, for Appellants.
    John Brady, for Respondent Blue Ridge Bank.
    Before Division Two: VICTOR C. HOWARD, Presiding Judge, JOSEPH M. ELLIS, Judge and MARK D. PFEIFFER, Judge.
   JOSEPH M. ELLIS, Judge.

Randy and Nancy Hanson appeal from a judgment entered in the Circuit Court of Jackson County in an interpleader action originally filed by Blue Ridge Bank and Trust (“the Bank”) related to a piece of real property located on Lake Lotawana in Jackson County. The Hansons contend that the trial court improperly found that their preemptive right to purchase the property had been waived. They also challenge the trial court’s conclusion that the restrictive covenant created an unreasonable restraint on the alienation of the property. For the following reasons, the judgment is affirmed.

Ownership of the piece of property at issue, Lot W-2 on Lake Lotawana, rests with the Donald L. Allen Revocable Trust. The Bank assumed the role of trustee of that trust following Mr. Allen’s death in 2004. Respondents Rhonda Trosen and Donald Allen Jr. are the adult children of Donald Allen Sr. and beneficiaries of the trust. Following Mr. Allen’s death, Tro-sen and Allen and their respective spouses sought to purchase Lot W-2, which had not been bequeathed to any trust beneficiary, from the trust. The provisions of the trust granted the Trustee discretion to sell, convey, transfer, or lease the property and “in general to deal otherwise with the trust property in such manner, for such prices, and on such terms and conditions as any individual might do as outright owner of the property.”

Lot W-2 and all other pieces of property on Lake Lotawana are governed by restrictive covenants. The provision at issue in this case is the right of first refusal found in the covenants, which provides:

No sale, contract to sell, or conveyance of the real estate herein described shall be made or consummated without first giving at least fifteen (15) days written notice to Grantor [Lake Lotawana Association, Inc.], and to the owners of the two side adjoining lots, of the proposed sale price and terms thereof; and thereupon the Grantor and/or either of the side adjoining lot owners shall have the first and prior right, option, and privilege during said period of fifteen (15) days to buy said real estate at the same price and upon the same terms.

The Hansons own one of the two lots adjacent to Lot W-2.

In October 2004, the Bank obtained an appraisal for Lot W-2, which determined its market value to be $135,000. On February 8, 2005, the Hansons contacted the Bank and asked for the appraised value of the property. After receiving that information, the Hansons offered to purchase the property for the appraised value. When Respondents were informed of the Hansons’ offer, they counter-offered to purchase the property for $135,500. The bank relayed that information to the Han-sons and asked if they had a counteroffer of their own. The Hansons stated that they would not bid further on the property. A contract for the purchase of the property for $135,500 was then executed between Respondents and the trust.

On February 23, 2005, the Hansons sent a letter to the Bank stating their intent to exercise their right to purchase Lot W-2 pursuant to the provisions of the restrictive covenants. They asked the Bank to modify the closing date to comply with the fifteen day notice provision of the covenant and also asked the bank to confirm the selling price and terms of the contract. On March 1, 2005, counsel for the Hansons sent a letter to the Bank demanding that the Bank “cease and desist from the sale, contract to sell or conveyance of [Lot W-2] in breach of the violation of the Restrictions and the Hansons’ right of first refusal.”

On March 4, 2005, the Bank filed a petition for interpleader and declaratory relief in the Circuit Court of Jackson County asking the court to determine the proper buyer for the property. The Han-sons subsequently filed an answer and counter-claim against the Bank for declaratory relief and specific performance. They also filed a cross-claim against Respondents for declaratory relief. In answer to the petitions, Respondents asserted that the restrictions were unenforceable and had been waived.

The case was tried to the circuit court, which ultimately found that the Hansons had waived them preemptive right when they told the Bank that they would not bid more than $135,000 on the property. On appeal, this Court held that the Hansons had not waived their preemptive right and had properly executed that right. Blue Ridge Bank & Trust Co. v. Trosen, 221 S.W.3d 451, 462-63 (Mo.App. W.D.2007) (“Trosen I ”). We remanded the case for determination of all remaining issues.

On remand, following an evidentiary hearing, the trial court entered its judgment in favor of Respondents. The court found that the preemptive right covenant had been waived by the Lake Lotawana Association with regard to all intra-family transfers of property. The court also concluded that the covenant, as written, posed an unreasonable restraint on the alienation of the property. The Hansons bring four points on appeal.

As in any court tried case, we review the trial court’s judgment under the standard of review established in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Id. at 457. “Accordingly, the judgment of the trial court will be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law.” McNabb v. Barrett, 257 S.W.3d 166, 169 (Mo.App. W.D.2008) (internal quotation omitted). “We view the evidence, and permissible inferences therefrom, in the light most favorable to the trial court’s judgment, and we disregard all contrary evidence and inferences.” Brown v. Mickelson, 220 S.W.3d 442, 447 (Mo.App. W.D.2007) (internal quotation omitted). “We defer to the trial court’s factual findings, giving due regard to the trial court’s opportunity to judge the credibility of the witnesses.” Id. (internal quotation omitted). This court “is primarily concerned with the correctness of the trial court’s result, not the route taken by the trial court to reach that result. Thus, the judgment will be affirmed if cognizable under any theory, regardless of whether the reasons advanced by the trial court are wrong or not sufficient.” Trosen I, 221 S.W.3d at 457 (internal quotation and citation omitted).

In their first point, the Hansons claim that the trial court erroneously declared and applied the law in finding that the sale of the property from the trust to Respondents was an intra-family transfer for which the Lake Lotawana Association had waived the preemptive right contained in the covenant. They claim that the Association cannot be deemed to have waived their personal right of first refusal of the individual property owners as to intra-fam-ily or any other transfers. They further assert that this transaction cannot be viewed as an intra-family transfer because the Bank, as successor trustee, is not related to Respondents. In their second point, the Hansons claim the judgment is against the weight of the evidence for the same reasons.

We first address whether the trial court erred in finding that the Association had waived the preemptive right with regard to intra-familial transfers of property. As noted in our prior opinion, lawfully recorded restrictive covenants govern all real property situated at Lake Lotawa-na, and one of those covenants affords the Association and adjoining land owners with a preemptive right when a property owner seeks to sell or otherwise convey the property to a new owner. Id. at 454.

Under Missouri law, a right of first refusal, or preemptive right, requires the seller, when or if she decides to sell the stipulated piece of property, to first offer the property to the holder of the right, either at a stipulated price or at the price and on the terms the seller is willing to sell.

Schroeder v. Duenke, 265 S.W.3d 843, 847 (Mo.App. E.D.2008). “The preemptive right is merely contingent until the owner arrives at a decision to sell the property, at which point the preemptive right ripens into a full option.” McNabb, 257 S.W.3d at 170 (internal quotation omitted).

“A restrictive covenant [like the preemptive right at issue herein] may be waived and abandoned by a conscious acquiescence as evidenced by persistent violations of the covenant.” Mackey v. Griggs, 61 S.W.3d 312, 318 (Mo.App. S.D.2001). “It can also be waived by failure to object to violations of the restriction.” Id. “The violation must be widespread to constitute waiver or abandonment and it must be so general as to indicate an intention or purpose to abandon the scheme intended to be maintained by the restriction.” Id. Waiver of restrictive covenants may be accomplished through the action or inaction of a home owners’ association. See Lake St. Louis Cmty. Ass’n v. Kamper, 503 S.W.2d 447, 449-50 (Mo.App. E.D.1973) (holding that home owners’ association had waived a restriction on signage by consistently allowing builders to post signs during construction and even provided signs for builders to post); see also Kling v. Taylor-Morley, Inc., 929 S.W.2d 816, 820-21 (Mo.App. E.D.1996) (noting that home owners’ association’s waiver of a single family home restriction in one specific instance for a condominium structure was not so widespread or general that it would constitute a waiver for the entire subdivision); see also Trosen I, 221 S.W.3d at 463 (remanding cause for a determination of whether a covenant providing for a preemptive right had been waived by the home owners’ association after having determined that the Hanson’s had not waived the preemptive right individually). The burden of proving waiver of a restrictive covenant in a subdivision’s indentures rests with the party asserting waiver. McNabb, 257 S.W.3d at 170. However, “[b]eeause waiver and abandonment is an equitable defense, few rules can be generally applied and each case is decided upon its own facts.” Mackey, 61 S.W.3d at 318.

The deposition of Howard Chamberlain was introduced into evidence at trial. Chamberlain was a former president of the board of directors for the Association, a long-time member of the board of directors, and a resident at Lake Lotawana since 1971. Chamberlain testified that it was the practice of the Association and adjoining land owners not to exercise preemptive rights where the transfer of property was between family members. He further stated that he was unaware of any instance in which this was not the case.

Frances Grossman, a former member of the board of directors and long-time administrator for the Association, who kept track of sales at Lake Lotawana, testified at trial that it was the established policy of the Association that preemptive restrictions did not apply to intra-family transfers of property. Grossman testified that she told homeowners involved in intra-family transfers that waivers were not required. A letter sent from Grossman to a local attorney in 1997 was entered into evidence that stated:

It has never been our policy to require waivers when properties are transferred among family members, as it is usually the intent of the owner to keep these properties within the family. This is only fair as the terms are usually somewhat better than fair market value, and it is not the intention of the owner to sell on the open market.

Rhonda Trosen testified that, prior to entering into the sales contract, she was specifically informed by two members of the board of directors for the Association that waivers were not necessary for transfers of property within the family.

Viewed in accordance with our standard of review, the foregoing evidence supports the trial court’s finding that the Association and its members had waived their preemptive rights related to intra-family transfers of property through their repeated comments and actions in allowing persistent violations of the provision over an extended period of time. See Lake St. Louis, 503 S.W.2d at 449 (holding that covenant prohibiting signage had been waived with regard to temporary signs displayed by builders where the homeowners’ association had allowed this practice for years without voicing objection and had even furnished builders with signs); Mackey, 61 S.W.3d at 318-19 (holding that property owners in subdivision had waived restrictive covenant mandating that the land be used solely for residential purposes where the majority of lots in the subdivision had previously been used for non-residential purposes without objection).

In claiming that the trial court’s decision is against the weight of the evidence, Appellants challenge the credibility of the testimony presented by Respondents and the weight afforded to that testimony by the trial court. Appellants also point to testimony offered by other witnesses that could have supported a contrary conclusion. In a court tried case, however, this Court must “defer[ ] to the trial court’s determination of the credibility of witnesses and the weight to be given to their testimony.” Murphy v. Holman, 289 S.W.3d 234, 237 (Mo.App. W.D.2009). Moreover, “[a]s the trier of fact, the trial court ... is free to believe all, some, or none of the testimony of [any] witness.” Repair Masters Constr., Inc. v. Gary, 277 S.W.3d 854, 857 (Mo.App. E.D.2009). It is of no consequence that the evidence might have supported a contrary conclusion by the trial court. Affording the trial court the proper level of deference, the evidence presented at trial sufficiently supports the trial court’s finding of waiver and that finding is not against the weight of the evidence.

As noted supra, the Hansons further argue that even if the Association and its members waived their preemptive rights as to intra-family transfers, the trial court nevertheless erred in finding the transaction in this case to be intra-family because the Bank, as successor trustee, is not related to Respondents. The Hansons cite to no authority for this argument, and in effect refute their own contention by conceding that the transaction would have been an intra-familial sale had it occurred while Donald L. Allen, Sr., was still living and serving as trustee. Thus, the crux of their argument is not that the trust owns the property, and because it is unrelated to Respondents, the transaction is not intra-familial. Rather, they contend the sale does not qualify because the successor trustee is unrelated to Respondents.

The Hansons’ focus on the identity of the trustee to determine the intra-familial character of the sale is misplaced. The trial court found that the Association, in waiving family transactions, “looked beyond formalities ... to the true nature of [the] conveyance.” This finding is supported by the evidence. Grossman testified that, whether by will or sale, waivers were not required because the transaction was between family members. Chamber-lin similarly testified that the right of first refusal was not intended to cover any transfers to family members, and it didn’t matter whether it was by gift, contract to sell, or otherwise. Charles Keller testified that when he acquired property from his father’s trust, waivers were not required. Moreover, the record reflects that the waiver even applied when property was transferred between separate family trusts. As we have noted supra, each case involving waiver must be decided on its own facts. Mackey, 61 S.W.3d at 318. Viewing the evidence in the light most favorable to the trial court’s judgment, as we must, the trial court’s finding that the successor trustee’s sale to the Respondents qualified as an intra-family transaction is supported by substantial evidence and is not erroneous. Points I and II are denied.

Having reached this conclusion, we need not address Appellants’ remaining points challenging the trial court’s conclusion that the restrictive covenant, as written, constituted an unreasonable restraint on the alienation of Lake Lotawana properties.

The judgment is affirmed.

All concur.

      . Respondent Mark Trosen is Rhonda Tro-sen's husband, and Respondent Amy Allen is Donald Allen Jr.'s wife.

      . "Under Missouri law, a transfer of property by gift from one family member to another does not trigger a right of first refusal.” Schroeder, 265 S.W.3d at 847. The transfer in this case, however, is clearly not a gift.

      . This would be sufficient, in and of itself, to reject the contention. "In an appeal, the movant has the burden to establish error that warrants relief through adequate points and arguments. This burden shall not be shifted to the appellate court.” Giles v. Riverside Transp., Inc., 266 S.W.3d 290, 297 (Mo.App. W.D.2008) (internal quotation omitted); see also, Boswell v. Steel Haulers, Inc., 670 S.W.2d 906, 912 (Mo.App. W.D.1984) ("As to this point, respondent has provided this court with one-half page of argument in its brief and has cited no authority or rationale to support the contention. We deem the point abandoned.”).

      . Although the issue was not raised by the parties, we note that had the trial court reached a different conclusion, it would have been contrary to the law of the case. That doctrine "provides that a previous holding in a case constitutes the law of the case and precludes relitigation of the issue on remand and subsequent appeal.” Walton v. City of Berkeley, 223 S.W.3d 126, 128-29 (Mo. banc 2007) (internal quotation omitted). Implicit in our decision in Trosen I is a holding that the sale by the successor trustee to Respondents was an intra-family transfer. Were it not, we would not have found the need to remand the case for the trial court to "address other contentions raised by the parties, such as the contention raised by the Trust Beneficiaries that the Restrictions did not apply to intra-family transfers or that the Association has waived the restrictions as to intra-family transfers.” Trosen I, 221 S.W.3d at 463. Had the undisputed fact that the bank and Respondents were not related been determinative of this issue as a matter of law, this Court would have had no reason to remand the case to address these issues.


source: Caselaw Access Project

author: CYNTHIA L. MARTIN, Judge.

license: Public Domain

text:
    Remigio CHERCO, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70071.
    Missouri Court of Appeals, Western District.
    Feb. 9, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 30, 2010.
    Application for Transfer Denied May 25, 2010.

      Elizabeth U. Carlyle, Columbus, MS, for appellant.
    Shaun J. Mackelprang, Jefferson City, MO, for respondent.
    Before Division Four: THOMAS H. NEWTON, Chief Judge, LISA WHITE HARDWICK, Judge and CYNTHIA L. MARTIN, Judge.
   CYNTHIA L. MARTIN, Judge.

Remigio Cherco appeals the motion court’s denial of his Rule 24.035 motion for post-conviction relief following an eviden-tiary hearing. Cherco contends that the motion court erred in: (1) denying his motion on the grounds that his guilty pleas were not knowingly and voluntarily entered; and (2) denying his motion on the grounds that he received ineffective assistance of counsel at the sentencing proceeding. For the following reasons we affirm the motion court’s decision.

Factual and Procedural History

Remigio Cherco was charged by the State with several violent crimes in two separate cases. In the State’s first case initiated in October 2005 (“First Case”), Cherco was charged with domestic assault in the second degree, a class C felony. In the State’s second case initiated in May 2006 (“Second Case”), Cherco was charged with one count of domestic assault in the first degree, a class A felony, one count of domestic assault in the second degree as a persistent domestic violence offender, a class C felony, and one count of felonious restraint, a class C felony. Although separate cases, the trial court joined the First Case and the Second Case for purposes of plea negotiations, plea hearings, and sentencing.

Pursuant to plea negotiations between Cherco and the State, the State dismissed the two class C felonies charged in the Second Case and reduced the class A felony to a class B felony in the Second Case, in exchange for Cherco’s guilty plea to the class C felony in the First Case and the reduced class B felony in the Second Case. As part of the plea agreement, the State recommended a seven year sentence for each of the felony domestic assault counts and recommended that the sentences run concurrently. Cherco pleaded guilty pursuant to the plea agreement.

At a subsequent sentencing hearing, the trial court did not accept the State’s sentencing recommendation and sentenced Cherco to three years in the First Case and eleven years in the Second Case, to be served consecutively. Cherco filed a Rule 24.035 post-conviction relief motion. After an evidentiary hearing, the motion court denied Cherco’s Rule 24.035 motion. Cherco appeals.

Standard of Review

Appellate review of a motion court’s disposition of a motion filed under Rule 24.035 shall be limited to a determination of whether the findings and conclusions of the trial court are clearly erroneous. Rule 24.035(k); Krider v. State, 44 S.W.3d 850, 856 (Mo.App. W.D.2001). The trial court’s “findings and conclusions are clearly erroneous only if, after reviewing the entire record,” we are left with a “definite and firm impression that a mistake has been made.” Id.

Point One — Guilty Plea Phase

In Cherco’s first point on appeal, he claims that the motion court clearly erred in denying his Rule 24.035 motion for post-conviction relief because his guilty pleas were involuntary and unknowingly entered due to his counsel’s ineffective assistance. Cherco alleges that: (1) he did not know that the plea agreement was not binding on the trial judge; (2) he did not know that the trial judge alone makes the determination of whether his sentence would run concurrently or consecutively; and (3) his trial counsel incorrectly advised him regarding the percentage of his sen-fence that he would be required to serve before being eligible for parole. Cherco claims that had he been correctly advised on the above matters then he would not have pleaded guilty and would have instead insisted on going to trial.

A guilty plea must be a “voluntary expression of the defendant’s choice, and a knowing and intelligent act done with sufficient awareness of the relevant circumstances and likely consequences.” State v. Roll, 942 S.W.2d 370, 375 (Mo. banc 1997). To prevail on an ineffective assistance of counsel claim following a guilty plea, Cher-co must show by a preponderance of the evidence that: (1) trial counsel’s performance was deficient because he failed to exercise the customary skill and diligence that a reasonably competent attorney would exercise in similar circumstances; and (2) the deficient performance prejudiced Cherco as a result. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Simmons, 955 S.W.2d 729, 746 (Mo. banc 1997). If either the performance prong or the prejudice prong is not met, then we need not consider the other, and Cherco’s claim of ineffective assistance of counsel must fail. Strickland, 466 U.S. at 687, 104 S.Ct. 2052.

To satisfy the performance prong, Cher-co must overcome the presumption that any challenged action was sound trial strategy and that counsel rendered adequate assistance of counsel and made all significant decisions in the exercise of professional judgment. Id. at 689-90, 104 S.Ct. 2052. In order to overcome the prejudice prong, Cherco must show a reasonable probability that, but for counsel’s alleged deficiencies, the result of the proceeding would have been different. Id. at 694, 104 S.Ct. 2052.

Cherco first alleges he did not understand that: (1) the recommended sentence was not binding on the trial judge; or (2) the trial judge alone decides if sentences will run concurrently or consecutively, and that, as a result, his guilty pleas were not voluntary. Cherco must show that his mistaken understanding was reasonable. McFarland v. State, 796 S.W.2d 674, 676 (Mo.App. W.D.1990). “While an individual may proclaim he had a certain belief and may subjectively believe it, if it was unreasonable for him to entertain such a belief at the time of the plea proceeding, relief should not be granted.” Krider, 44 S.W.3d at 857. Thus, we look to Cherco’s claimed beliefs in light of the guilty plea record, and if there is no reasonable basis for the beliefs, then relief should be denied. Id.

After reviewing the guilty plea record and evidence presented at the post-conviction hearing, the motion court made the determination that there was no reasonable basis for Cherco’s claims that he did not understand the recommended sentence was not binding on the trial judge or that his sentences could run consecutively. The guilty plea record clearly reflects that Cherco was questioned concerning his understanding of the proceedings. At that time, Cherco was asked whether he had enough time with trial counsel to be able to fully understand the two felony charges that he was pleading guilty to, and he responded that he did have enough time and he understood the nature of his pleas. In addition the trial judge asked Cherco:

Q: When a plea of guilty’s [sic] accepted, a judge makes sentencing decisions. Is that clear?
A: Yes, sir, Your Honor.
Q: And one of the obligations a judge in a guilty plea proceeding has is to make clear to a defendant pleading guilty the maximum punishment that can be imposed under the law if the plea of guilty is accepted. To get that we have to add together the máximums. You are exposed to as much as 22 years incarceration and $5,000 in fines. Have I now made clear to you the range of punishment in these cases?
A: You have, Your Honor.
Q: In the plea agreement, agreements have been made about concurrent, consecutive, length of sentence and all that. Did your reading of the petition to plead guilty make it clear to you that the prosecutor’s position on such things is not binding on me?
A: No, sir, Your Honor — oh, yes, Your Honor.
Q: Okay. I believe what you have just said to me is that you understand that the Prosecutor’s position, while it will be a significant factor for me to consider, it is not one that I must follow. Have I got that right?
A: Yes, sir.

The trial court specifically cited to the Petition to Enter Plea of Guilty signed by Cherco, which stated:

9. After discussions with my lawyer, the prosecuting attorney has promised that if I plead guilty the Prosecutor’s Office will comply with the plea agreement. ... However, I understand that the Court is not required to follow recommendations made by the Prosecutor... It has been made clear to me that in Clay County plea ayreements are not bindiny to the Court. This means I will not be able to withdraw my plea of guilty and have a trial if the Judge does not follow the Prosecutor’s recommendation(s).... I know that the length of my sentence ... [is] solely within the control of the Judge. I hope to receive leniency, but I am prepared to accept any punishment permitted by law which the Court sees fit to impose. I know there are no promises or guarantees ... of what the sentence will be in this case, or whether the sentence will be consecutive to or concurrent with any other sentences.

(Emphasis added.) The trial court also questioned Cherco on whether or not he had read everything in the petition and understood it, to which Cherco replied that he had.

In addition, the trial court questioned Cherco on his understanding of his fundamental right to a jury trial, reiterated that the trial court alone makes sentencing decisions, asked whether Cherco was under the influence of any medication at the proceeding, and if Cherco was satisfied with trial counsel’s performance. At no point did Cherco state that he was confused or that he did not understand the proceedings. Nor did he ever indicate that he was dissatisfied with trial counsel’s performance. In addition to confirming that he understood the guilty plea proceedings, Cherco also told the trial court under oath, at the close of the proceedings, that everything in his plea was true and that he was pleading guilty freely and voluntarily. We conclude that the motion court’s findings as to the voluntariness of Cherco’s plea were not clearly erroneous as there was no reasonable basis for Cherco’s claim that he did not understand that the recommended sentence was not binding.

Cherco next alleges that trial counsel misinformed him regarding the percentage of his sentence that he would be required to serve before being eligible for parole, rendering his guilty plea involuntary. “Generally, information about parole is a collateral consequence that neither trial counsel nor the court must inform the defendant of in order for a guilty plea to be voluntary and intelligent.” Haskett v. State, 152 S.W.3d 906, 910 (Mo.App. W.D.2005). However, Missouri law distinguishes between a defendant not being informed and being affirmatively misinformed about the possibility of parole. Id. If a defendant is affirmatively misinformed or misled, then the circumstances may rise to the level of ineffective assistance of counsel. Id.

At the post-conviction hearing, trial counsel testified that he informed Cherco that although the class A felony in the Second Case was being reduced to a class B felony, Cherco would still be subject to the eighty-five percent rule. Cherco and his mother offered competing testimony, respectively, that trial counsel advised Cherco that he would have to serve thirty-three percent and forty-three percent of his sentence before being eligible for parole. The motion court denied Cherco’s motion, finding that trial counsel’s testimony that he had properly informed his client was credible, and Cherco’s contrary testimony was not. Because the motion court is in a better position to make decisions on witness credibility, we defer to the motion court’s determination of credibility, as well as its findings of facts and conclusions. Betts v. State, 876 S.W.2d 802, 805 (Mo.App. W.D.1994).

Cherco asks us to compare his situation to that involved in Beal v. State, 51 S.W.3d 109 (Mo.App. W.D.2001). In Beal, this court examined whether a defendant was entitled to an evidentiary hearing on his Rule 24.035 motion, following admissions by trial counsel in an affidavit that he had affirmatively misinformed the defendant concerning his eligibility for parole. Id. at 112. Beal is distinguishable from this case. Cherco was afforded an evidentiary hearing, and trial counsel did not admit misinforming Cherco concerning his eligibility for parole, and in fact testified to the contrary.

We conclude that the motion court’s determination that Cherco was not affirmatively misinformed by counsel about the amount of time he would be required to serve before being eligible for parole was not clearly erroneous. Point one is denied.

Point Two — Sentencing Phase

In Cherco’s second point on appeal, he alleges that he received ineffective assistance of counsel during the sentencing proceedings because trial counsel failed to call character witnesses on his behalf. Cherco contends trial counsel failed to call his mother, his uncle, a friend of the family, his sister-in-law, a former girlfriend, and a friend of Cherco’s cousin as character witnesses during the sentencing hearing. Cherco does not contend that but for counsel’s failure to call character witnesses during the sentencing hearing he would not have pleaded guilty. Instead, Cherco contends that had such evidence been presented, there is a reasonable probability that his sentence would have been lower. He seeks, therefore, vacation of his sentence and an opportunity to be resen-tenced. He is not seeking to withdraw his guilty plea.

A claim of ineffective assistance of counsel at sentencing following a guilty plea is a “cognizable” claim under Rule 24.035. Griffin v. State, 937 S.W.2d 400, 401 (Mo.App. E.D.1997). Thus, the two-pronged test from Strickland applies equally to claims of ineffective assistance of counsel arising out of a sentencing hearing. 466 U.S. at 687, 104 S.Ct. 2052.

In order to satisfy the performance prong, Cherco must demonstrate that trial counsel’s failure to call character witnesses at his sentencing hearing fell below an objective standard of reasonableness. Id. at 688, 104 S.Ct. 2052. There exists a strong presumption that counsel’s conduct was reasonable and effective. The “ ‘decision not to call a witness is, as a matter of trial strategy, virtually unchallengeable.’ ” State v. Gilpin, 954 S.W.2d 570, 576 (Mo.App. W.D.1997) (quoting State v. Maddix, 935 S.W.2d 666, 672 (Mo.App. W.D.1996)). For Cherco “to establish that his trial counsel was ineffective for failure to call a witness, he must show that the decision involved something other than reasonable trial strategy; that the witness could have been located through reasonable investigation; that the witness would have testified; and that the witness’ testimony” would have aided in Cherco’s defense. Id. “The reasonableness of counsel’s actions may be determined or substantially influenced by the defendant’s own statements or actions.” Strickland, 466 U.S. at 691, 104 S.Ct. 2052.

At Cherco’s Rule 24.035 post-conviction hearing, trial counsel testified that given the seriousness of the assaults admitted by Cherco as a part of his guilty plea, that although he did not recall telling Cherco to have character witnesses prepared to testify, he felt as a matter of strategy that platitudes that Cherco was a “nice guy” were not going to have any meaningful effect. As a result, trial counsel instead attempted to garner mercy from the trial court by having Cherco express his willingness to serve the recommended and negotiated seven-year sentences. The motion court properly concluded that trial counsel’s actions did not fall below the reasonable standard of care.

Trial counsel also testified that he had difficulty securing Cherco’s cooperation prior to the sentencing hearing. Trial counsel attempted to contact Cherco on numerous occasions concerning the upcoming sentencing hearing. Cherco consistently failed to return these calls. In explanation, Cherco claimed that trial counsel only tried to contact him in the afternoons when he worked, that his cell phone did not get good service in his apartment, and that every time counsel left him a voicemail message he would call back as soon as he was able to. Trial counsel testified that it was not until the actual day of sentencing that he had in person contact with Cherco. Trial counsel testified that on the day of sentencing Cherco “walked in saying ‘what are we going to do today,’ and I remember my response, well, haven’t you thought it important enough to call me before walking in here to find out what we’re going to do today, because this was an ongoing problem with him forever and ever.” The motion court found that trial counsel’s testimony was credible. We defer to the motion court’s decisions concerning issues of credibility. Betts, 876 S.W.2d at 805.

Cherco’s case is similar to State v. Johnson, 901 S.W.2d 60 (Mo. banc 1995). Johnson claimed that trial counsel failed to call a particular witness, “Linda,” to testify, whom he claimed would have aided in his defense. Id. at 63. During the sentencing proceedings, the trial court questioned trial counsel as to why he failed to call Linda. Trial counsel stated that he: (1) did not find out about Linda until after the trial, and even then (2) the defendant failed to provide trial counsel with Linda’s last name or address. Id. Because Johnson had failed to provide trial counsel with the necessary information, trial counsel was unable to call witnesses on Johnson’s behalf, and Johnson’s claim of ineffective assistance of counsel failed. Id. Johnson also claimed that trial counsel was ineffective for failing to call a convicted criminal serving time in a correction facility to testify on his behalf. Id. Trial counsel, when examined by the trial court, stated that calling such a witness could “have done more harm than good.” Id. Our Supreme Court found that trial counsel’s refusal to call a convicted criminal was reasonable trial strategy that negated Johnson’s claim of ineffective assistance of counsel. Id. Although Johnson involved trial counsel’s failure to call a witness at trial, Johnson’s, rationale is equally applicable to trial counsel’s failure to call character witnesses during Cherco’s sentencing proceedings.

We conclude that the motion court’s determination that trial counsel’s failure to call character witnesses during the sentencing hearing did not fall below the objectively reasonable standard to which counsel is held was not clearly erroneous. Trial counsel’s failure to call witnesses at the sentencing hearing was due to a combination of a lack of cooperation and responsiveness by Cherco, and a reasonable trial strategy. Cherco did not overcome the presumption that trial counsel’s conduct was reasonable and effective. Cherco cannot establish the performance prong of Strickland.

Even if we were to conclude that trial counsel’s failure to call character witnesses at the sentencing hearing fell below the objective standard of reasonableness, Cherco would nonetheless be obliged to satisfy Strickland’s prejudice prong. Cherco contends that in order to satisfy the prejudice prong, he need only show that had trial counsel presented character witnesses at sentencing, there is a reasonable probability that his sentence would have been lower. The State contends that Cherco is not permitted to demonstrate prejudice in sentencing with a claim that but for his trial counsel’s error, his sentence would have been lower, but instead must show that but for trial counsel’s error, he would not have pleaded guilty and would have insisted on going to trial.

Strickland requires a showing of prejudice as a result of the deficient performance of counsel. 466 U.S. at 687, 104 S.Ct. 2052. Strickland does not expressly limit prejudice to a showing that but for the errors of counsel, the defendant would not have pleaded or been found guilty. A subsequent United States Supreme Court decision has construed the prejudice prong in cases involving a guilty plea to require a showing of “a reasonable probability that, but for counsel’s errors, [mov-ant] would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The Missouri Supreme Court has stated that “[b]y pleading guilty, [movant] waived any claim that counsel was ineffective except to the extent that the conduct affected the voluntariness and knowledge with which the plea was made.” Worthington v. State, 166 S.W.3d 566, 573 (Mo. banc 2005). The State argues that Worthing-ton and Hill foreclose Cherco’s claim of prejudice based on errors of counsel during sentencing, as Cherco has not alleged that but for those errors, he would not have plead guilty. Though Worthington and Hill both involved claims of ineffective assistance of counsel following a guilty plea, neither case involved a defendant’s request to vacate sentencing without a corresponding request to set aside the defendant’s guilty plea. Thus, the issue presented in this case was not addressed in either Worthington or Hill. In addition, other decisions in this state have described the prejudice prong more broadly than Worthington and Hill. In Middleton v. State, 103 S.W.3d 726 (Mo. banc 2003), our Supreme Court, quoting Strickland, noted that the prejudice prong requires a showing that “ ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Id. at 733 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Middleton is cited with approval in Worthington. Worthington, 166 S.W.3d at 573. The broader description of prejudice drawn from Strickland, and quoted in Middleton, would not foreclose Cherco’s claim.

We are unaware of any Missouri case which has squarely addressed the issue framed by this case. However, previous cases have permitted, without discussion, post-conviction relief limited to vacating a sentence. In Pettis v. State, 212 S.W.3d 189 (Mo.App. W.D.2007), trial counsel misinformed the trial court that the imposition of consecutive sentencing would “push back” defendant’s potential parole, unaware that pursuant to Board of Probation and Parole’s rules, “upon imposition of a consecutive term of imprisonment, [the defendant’s] parole-eligible life sentence would definitely, immediately, and automatically convert to a sentence of life without possibility of parole.” Id. at 194. The record reflected that the trial court operated under the same misapprehension as trial counsel when sentencing the defendant. Id. at 194-95. This court found, therefore, that the defendant had been prejudiced, and reversed the motion court’s denial of defendant’s Rule 24.035 motion, vacated the imposed sentence, and remanded with directions to re-sentence. Id. at 196. We noted “ ‘[a] sentence passed on the basis of a materially false foundation lacks due process of law and entitle[s] the defendant to a reconsideration of the question of punishment in light of the true facts, regardless of the eventual outcome.’ ” Id. at 195 (citations omitted). In support of its decision, Pettis cited State v. Rowan, 165 S.W.3d 552 (Mo.App. E.D.2005), and Williams v. State, 800 S.W.2d 739 (Mo. banc 1990). These cases involved, respectively, circumstances where a trial court sentenced a defendant based on a mistaken impression regarding the range of available sentence and whether sentences must run consecutively, and the defendant’s eligibility for parole.

The State contends Pettis, and the supportive cases upon which it relied, are inapplicable to this case, as each involved sentencing imposed based on a court’s misapprehension of the law. The State thus suggests that the relief available to a defendant pursuant to a Rule 24.035 motion can vary depending upon whether the claimed basis for the post-conviction motion is a court’s misapprehension of the law or ineffective assistance of counsel. This argument ignores that Pettis involved both a claim of ineffective assistance of counsel and a concern that the trial court imposed sentencing in misapprehension of the law. Pettis, 212 S.W.3d at 194-95. The State’s argument also fails to acknowledge other Missouri cases where the court has considered, albeit without discussion of the issue squarely framed in this case, post-conviction motions claiming ineffective assistance of counsel where an impact on sentencing is the only prejudice asserted. See, e.g., Deck v. State, 68 S.W.3d 418, 429-31 (Mo. banc 2002) (failure to offer mitigation instruction during penalty phase of capital murder case satisfied prejudice prong and warranted remand of case for new penalty phase); Eichelberger v. State, 134 S.W.3d 790, 792 (Mo.App. W.D.2004) (prejudice prong requires defendant to demonstrate a reasonable probability that a lesser sentence would have been imposed had counsel called character witnesses during the sentencing hearing). More to the point, the plain language of Rule 24.035 does not permit the narrow construction of Strickland’s prejudice prong argued by the State.

Rule 24.035(a) provides that

[a] person convicted of a felony on a plea of guilty ... who claims that the conviction or sentence imposed violates the constitution and laws of this state or the constitution of the United States, including claims of ineffective assistance of trial and appellate counsel, that the court imposing the sentence was without jurisdiction to do so, or that the sentence was in excess of the maximum sentence authorized by law may seek relief in the sentencing court pursuant to the provisions of this rule 24.035.

(Emphasis added.) The use of the disjunctive “or” between “conviction” and “sentence” necessarily means an aggrieved defendant can seek post-conviction relief relating either to the defendant’s conviction or to the defendant’s sentence. Council Plaza Redevelopment Corp. v. Duffey, 439 S.W.2d 526, 532 (Mo. banc 1969) (the disjunction “or” in its ordinary sense means “either”). The use of the word “including” before reference to ineffective assistance of counsel, a court lacking jurisdiction to impose a sentence or a court imposing a sentence inconsistent with the law, suggests each is an example of an “error” which can support a post-conviction claim that a conviction or sentence violates the law or the constitution. We see, therefore, no logical basis to interpret Rule 24.035 to permit correction of sentencing errors resulting from a trial court’s misapprehension of the law but not to permit correction of sentencing errors resulting from ineffective assistance of counsel.

We acknowledge that the Strickland performance and prejudice prongs are only applicable to claims of ineffective assistance of counsel. In this respect, post-conviction motions under either Rule 29.15 or Rule 24.035 which allege ineffective assistance of counsel will be subject to an analysis that does not necessarily apply to a post-conviction claim that a court has misapprehended the law or exceeded its jurisdiction. However, the mere fact that Strickland developed standards which must be met to demonstrate ineffective assistance of counsel does not suggest or support the conclusion that the relief which can be afforded a defendant following a post-conviction motion claiming ineffective assistance of counsel should be artificially narrowed or limited to less than the relief available should other grounds be asserted for post-conviction relief. Our conclusion is consistent with Strickland which merely requires demonstration that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 694, 104 S.Ct. 2052 (emphasis added). In Cherco’s case, the “proceeding” at issue is the sentencing hearing. Cherco is arguing that but for counsel’s errors, the result of his sentencing proceeding would have been different. Cherco’s argument is consistent with the manner in which “prejudice” is defined in Strickland. Cases which have subsequently described the Strickland prejudice prong to require a defendant to demonstrate that but for trial counsel’s errors, the defendant would not have pleaded guilty, must be fairly read as limited to situations where the defendant is seeking vacation of his guilty plea.

We conclude that the Strickland prejudice prong permits a defendant to argue prejudice in sentencing as a result of ineffective assistance of counsel without requesting vacation of the underlying guilty plea or finding of guilt. If a defendant aggrieved by ineffective assistance of counsel at sentencing is willing to abide by the guilty plea or conviction, the defendant nonetheless may have recourse under a post-conviction motion if the defendant demonstrates there is a reasonable probability that sentencing was influenced by ineffective assistance of counsel during sentencing. A motion court is permitted to vacate a sentence without vacating a conviction if prejudice in the sentencing phase is shown.

Though we conclude that it was technically permissible for Cherco to claim prejudice affecting the outcome of his sentencing hearing without seeking to vacate his guilty plea, we also conclude that Cherco has failed to demonstrate prejudice with his argument that but for counsel’s failure to call character witnesses his sentence would have been lower. The motion court heard testimony from the six character witnesses not called during the sentencing proceedings. The motion court concluded that had the witnesses testified at the sentencing hearing, there is no reasonable probability that more lenient sentences would have been imposed. The motion court’s finding is not clearly erroneous.

Cherco contends the motion court made this finding improvidently, having noted that it had, as the trial court, imposed consecutive versus concurrent sentencing because Cherco was “on bond” from the First Case when he committed the Second Case. Cherco argues he was not “on bond” when he committed the Second Case and that the motion court’s comment thus revealed a clearly erroneous belief held by the trial court which prejudicially influenced sentencing, and which undermined the motion court’s conclusion that the testimony from the character witnesses would not have impacted the sentencing. We do not agree.

The supplemental legal file submitted by the State reflects that bond was set in the First Case at $20,000 on October 25, 2005, the same date a warrant was issued for Cherco in the First Case. Though the record also reflects the bond was not posted until May 30, 2006, shortly after Cherco was charged in the Second Case, the import of the motion court’s reference to being “on bond” could easily be construed as no more than a reference to Cherco having been previously charged. Whether Cherco knew that he had been charged in the First Case, or that bond had been set in the First Case at the time he committed the Second Case, is immaterial to whether the trial court could permissibly consider at sentencing that Cherco was being sentenced for serious criminal offenses committed on two separate occasions. Cherco cites us no authority to the contrary. In any event, though mentioned in the argument portion of point two of Cherco’s brief, and more directly emphasized in oral argument, this claimed error is not raised in Cherco’s point relied on and has not been preserved for our consideration. Rule 84.04(e).

We caution that our conceptual conclusion that the Strickland prejudice prong permits a defendant to argue that the outcome of a sentencing proceeding would have been different but for counsel’s deficient performance, without requesting vacation of a conviction, is unlikely to affect the disposition of post-conviction motions asserting that but for trial counsel’s failure to call character witnesses, a sentence would have been ameliorated. In fact, it is difficult to envision a scenario where the weighty burden of establishing prejudice can be sustained by such a hypothetical supposition given the indeterminate nature of sentencing. That is particularly true where, as here, the sentencing court and the motion court are one in the same, rendering a motion court’s finding that character witnesses would not have ameliorated the sentence virtually unchallengeable under the clearly erroneous standard.

Trial counsel’s conduct in not calling character witnesses during the sentencing hearing was reasonable. Cherco was not prejudiced by trial counsel’s failure to call character "witnesses during the sentencing hearing. Point two is denied.

Conclusion

The motion court’s determination that Cherco knowingly and voluntarily pleaded guilty to several charges arising out of two separate criminal incidents is not clearly erroneous. Cherco did not demonstrate deficient performance of counsel or prejudice negating the voluntariness of his guilty plea, notwithstanding his claim that he was unaware the recommended sentence was not binding on the trial court or his claim that he was misinformed about his eligibility for parole. The motion court’s determination that Cherco was properly sentenced notwithstanding trial counsel’s failure to call character witnesses during the sentencing hearing is not clearly erroneous. Cherco did not overcome the presumption that trial counsel’s decision not to call character witnesses during the sentencing hearing was sound trial strategy. Strickland permits Cherco to argue prejudice in his sentencing hearing by arguing that but for trial counsel’s errors his sentence would have been lower without also arguing that but for trial counsel’s errors he would not have pleaded guilty. However, Cherco failed to demonstrate prejudice as there is no reasonable probability that character witness testimony would have affected the sentence imposed by the trial court. We affirm the judgment of the motion court denying Cherco’s Rule 24.035 post-conviction motion.

All concur.

      . The legal file submitted by Cherco suggests the First Case was initiated in November 2006. This is not correct. As reflected in the supplemental legal file submitted by the State, the First Case was initiated in October 2005 and was assigned case number 7CR105004779. The docket sheet for that case number reflects that on November 16, 2006, Cherco appeared, waived preliminary hearing, and was directed to appear in a different division on November 22, 2006. For reasons not explained by the record, the case number for the First Case was then changed to case number 7CR105004779-01. The docket sheet for this case number shows as its first entry Cherco’s November 22, 2006 appearance, as had been ordered on November 16, 2006. Though there are two assigned case numbers and thus two docket sheets, they both relate to the First Case.

      . The motion court judge and the trial court judge were the same, but are separately referenced to avoid confusion.

      . Cherco does not clearly and succinctly allege ineffective assistance of counsel in point one. Rule 84.04(d)(2)(B). However, it is clear from the argument portion of the brief that Cherco blames his lack of understanding on his reliance on counsel. We will therefore treat point one as a claim of ineffective assistance of counsel under Rule 24.035.

      . Cherco claims that several amendments were made to the guilty plea during the course of the original guilty plea hearing, which rendered his pleas involuntary and unknowing. However, the motion court found at the post-conviction hearing that the amendments made during the guilty plea hearing did not substantively alter the original plea agreement and were merely stylistic changes made in an effort to more clearly express the combined plea agreement for the State and the trial court. We agree with this conclusion.

      . Section 558.019.3, RSMo 2000, states that "any offender that has pleaded guilty to or has been found guilty of a dangerous felony as defined in section 556.061, RSMo 2000, and is committed to the department of corrections shall be required to serve a minimum prison term of eighty-five percent of the sentence imposed by the court.”

      . The victim in this case testified at the sentencing hearing that she had been physically hurt on eleven different occasions, regarding five of which she had to call 9-1-1. She described in detail the most severe assault, and how during this assault Cherco kicked, hit, punched, and was found choking her when police arrived. Following this incident, she received sixty stitches in her left eye, ten in her right cheek, and had to have eye surgery to fix a fractured eye socket. The victim's mother testified that during this same incident, her daughter's injuries were so severe because Cherco had hit the victim in the face with a fistful of keys. The victim’s mother also testified that when she arrived at the hospital following this incident, her daughter did not have clothes on because Cherco had ripped them off of her during the altercation.

      , The six character witnesses testified at the post-conviction hearing. The witnesses all indicated they would have been available to testify during the sentencing hearing, and if called to testify, they would have stated they believed Cherco to be a good person, that Cherco was employed, that Cherco wanted to help the victim pay her medical bills, and that Cherco had expressed remorse concerning the multiple assaults for which he had pleaded guilty.

      . Rule 29.15(a) reads nearly identically to Rule 24.035(a) with the exception that Rule 29.15(a) refers to convictions after trial, instead of convictions following a plea of guilty.

      . Of course, this determination will not prevent a defendant from claiming that ineffective assistance of counsel in the sentencing phase negated the knowing and voluntary nature of the guilty plea. Claims of ineffective assistance of counsel during sentencing usually involve a defendant’s claim that he would not have pleaded guilty had he known and understood that a recommended sentence would not be binding on the court or a claim that counsel misinformed the defendant in some fashion about the effect of sentencing.


author: ALOK AHUJA, Judge.

text:
    Darrin M. DENBOW, Appellant, v. STATE of Missouri, Respondent.
    No. WD 70474.
    Missouri Court of Appeals, Western District.
    Feb. 9, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 30, 2010.
    Application for Transfer Denied May 25, 2010.

      Andrew D. Propplewell, Esq., Columbia, MO, for appellant.
    Karen L. Kramer, Esq., Jefferson City, MO, for respondent.
    Before Division One: LISA WHITE HARDWICK, P.J., and JAMES M. SMART, JR. and ALOK AHUJA, JJ.
   ALOK AHUJA, Judge.

Darrin M. Denbow appeals the circuit court’s judgment denying his motion for post-conviction relief, following his plea of guilty to one count of driving while intoxicated. On appeal, he argues that he was erroneously sentenced as a persistent offender based (in part) on a prior state-court conviction for driving with excessive blood alcohol content. We affirm.

Factual Background

On June 25, 2007, Denbow pled guilty in Boone County Circuit Court to one count of driving while intoxicated under § 577.010. On July 9, 2007, he was sentenced as a persistent offender pursuant to § 577.023 to three years in the Department of Corrections. Execution of Den-bow’s sentence was suspended, and he was placed on probation for five years.

On August 4, 2008, the circuit court revoked Denbow’s probation, and he was remanded to the Department of Corrections to serve the previously imposed three-year prison sentence. Denbow then filed a timely motion for post-conviction relief under Rule 24.035, which the circuit court denied. Denbow appeals.

Analysis

To be convicted as a persistent offender pursuant to § 577.023.1(4)(a), the State must prove that an individual “has pleaded guilty to or has been found guilty of two or more intoxication-related traffic offenses.” Section 577.023.1(3), in turn, defines an “intoxication — related traffic offense” to include both “driving while intoxicated” and “driving with excessive blood alcohol content.”

Denbow does not dispute that he had previously been convicted, in state court, of driving while intoxicated in 2000, and of driving with excessive blood alcohol content in 2002. Section 577.023.1(3) expressly denominates both of those offenses as “intoxication-related traffic offenses.” Denbow nevertheless argues that he does not qualify as a persistent offender, because he claims that under § 577.023.16 (as it existed prior to 2008) only prior convictions “for driving while intoxicated” — and not convictions for driving with excessive blood alcohol content — may be used to enhance punishment under § 577.023. Because the State failed to prove that he had two qualifying prior convictions, Denbow contends that he was erroneously sentenced as a persistent offender. We disagree.

As it existed prior to 2008, § 577.023.16 provided in pertinent part:

A conviction of a violation of a municipal or county ordinance in a county or municipal court for driving while intoxicated or a conviction or a plea of guilty or a finding of guilty followed by a suspended imposition of sentence, suspended execution of sentence, probation or parole or any combination thereof in a state court shall be treated as a prior conviction.

The crux of Denbow’s argument is that §§ 577.023.1(3) and § 577.023.16 conflict, because § 577.023.1(3) defines “intoxication-related traffic offenses” to include offenses in addition to driving while intoxicated (and specifically lists driving with excessive blood alcohol content), while § 577.023.16 refers only to prior convictions “for driving while intoxicated.” According to Denbow, this conflict must be resolved by application of the rule of lenity, and the prior convictions which can justify sentence enhancement limited to the driving while intoxicated offense specified in the narrower § 577.023.16.

Because we find that Denbow was properly found to be a persistent offender under the plain and unambiguous language of §§ 577.023.1(3), .1(4), and .16, we affirm.

“Statutory interpretation is a question of law, and questions of law are reviewed de novo.” The primary objective of statutory interpretation is to ascertain the intent of the legislature and give effect to that intent as it is reflected in the plain language of the statute. When the language of the statute is unambiguous, a court must give effect to the language as written.

State v. Simmons, 270 S.W.3d 523, 531 (Mo.App. W.D.2008) (citations omitted).

Denbow qualifies as a persistent offender under the plain language of the governing statutory provisions. Both of his prior state-court convictions — -for driving while intoxicated and for driving with excessive blood alcohol content — are expressly denominated “intoxication-related traffic offenses” under § 577.023.1(3). Because he “has pleaded guilty to or has been found guilty of two or more intoxication-related traffic offenses,” he is a persistent offender as specified in § 577.023.1 (4)(a). Moreover, Denbow makes no argument that the disposition of his two prior “intoxication-related traffic offenses” does not fall within § 577.023.16, as it relates to state-court convictions: “a conviction or a plea of guilty or a finding of guilty followed by a suspended imposition of sentence, suspended execution of sentence, probation or parole or any combination thereof in a state court shall be treated as a prior conviction.”

The analysis in the prior paragraph should end the matter. Denbow argues, however, that a limitation contained in the first clause of the relevant sentence of § 577.023.16, which addresses convictions in county or municipal courts, should be applied here. The relevant clause provides that “[a] conviction of a violation of a municipal or county ordinance in a county or municipal court for driving while intoxicated ... shall be treated as a prior conviction.” (Emphasis added.) According to Denbow, Turner v. State, 245 S.W.3d 826 (Mo. banc 2008), requires that the limitation to convictions “for driving while intoxicated” found in § 577.023.16’s description of qualifying county- or municipal-court dispositions must also be applied to prior siaie-eourt convictions. This argument, if accepted, would disqualify Denbow’s 2002 conviction for driving with excessive blood alcohol content from serving as a basis for a “persistent offender” finding.

The limitation to convictions “for driving while intoxicated” in § 577.023.16’s first clause cannot reasonably be read to apply to prior state-court convictions, however. Turner itself holds that, in ascertaining the intent of the legislature, we are duty-bound to employ “canons of construction other than the rule of lenity, which should only be used in the event the other canons are inapplicable.” 245 S.W.3d at 828. One such interpretive canon “is found in the long recognized ‘last antecedent rule,’ which instructs that: ‘relative and qualifying words, phrases, or clauses are to be applied to the words or phrase immediately preceding and are not to be construed as extending to or including others more remote.’ ” Rothschild v. State Tax Comm’n of Mo., 762 S.W.2d 35, 37 (Mo. banc 1988) (citation omitted); see also Thompson v. Comm. on Legislative Research, 932 S.W.2d 392, 395 n. 3 (Mo. banc 1996). Applying the “last antecedent rule” here, the limitation to convictions “for driving while intoxicated” plainly applies only to the county- or municipal-court convictions described in the first clause of § 577.023.16, not to the state-court convictions which are described in language appearing after the limiting phrase. The second clause does not limit the nature of the offenses which can qualify as “prior convictions” when prosecuted in state court, referring only to “a conviction or a plea of guilty or a finding of guilty.” Nothing in that second clause suggests that any limitations on the use of county- or municipal-court convictions, found in the first clause, should be imported into the second clause.

Indeed, the fact that the legislature expressly limited county- and municipal-court convictions to those “for driving while intoxicated” in the first clause, but omitted that language from the second clause, is itself a significant indicator that this limitation does not apply to state-court dispositions.

It is well settled, in interpreting a statute, that the legislature is presumed to have acted intentionally when it includes language in one section of a statute, but omits it from another. “A disparate inclusion or exclusion of particular language in another section of the same act is ‘powerful evidence’ of legislative intent.”

State v. Bass, 81 S.W.3d 595, 604 (Mo.App. W.D.2002) (quoting Jantz v. Brewer, 30 S.W.3d 915, 918 (Mo.App. S.D.2000)); see also Brams Trust # 2 v. Haydon, 266 S.W.3d 307, 314-15 (Mo.App. W.D.2008).

We also note that Denbow’s argument would have the perverse effect of rendering § 577.023.1(3) a complete nullity. That sub-section denominates a variety of offenses — going well beyond driving while intoxicated — as “intoxication-related traffic offenses.” Under Denbow’s argument, however, the detailed enumeration of intoxication-related traffic offenses in § 577.023.1(3) would be completely inoperative surplusage, because § 577.023.16 would limit the offenses which may be considered for sentence enhancement purposes to driving while intoxicated alone. We are properly hesitant to construe § 577.023.16 in such a way as to render other provisions of the same statutory section meaningless. Turner, 245 S.W.3d at 828 (“it is presumed, of course, ‘that the legislature did not insert idle verbiage or superfluous language into a statute’ ” (citation omitted)); Edwards v. Gerstein, 237 S.W.3d 580, 581 (Mo. banc 2007) (“When interpreting statutes, courts do not presume that the legislature has enacted a meaningless provision.”).

Turner does not require a contrary result. Turner held that municipal-court prosecutions which resulted in suspended impositions of sentence did not qualify as prior convictions which could support sentence enhancement under § 577.023. The Court reached this result because — unlike the specific reference to suspended impositions of sentence in state-court proceedings — the first clause of what is now § 577.023.16 did not designate municipal-court proceedings which resulted in suspended impositions of sentence as “prior convictions.” Turner, 245 S.W.3d at 828. Turner held that the description of prior municipal-court convictions in the first clause of § 577.023.16 excluded, by negative implication, proceedings ending in a suspended imposition of sentence. This conflicted with the definition of a persistent offender in what is now § 577.023.1(4)(a), since the latter provision referred to a prior guilty plea or finding, without any reference to “the disposition of the charge — whether by suspended imposition of sentence, suspended execution of sentence, probation or parole.” Turner, 245 S.W.3d at 828. Turner held that it was necessary to resort to the rule of lenity to resolve this conflict, and therefore interpreted the statute in the defendant’s favor, as excluding municipal-court proceedings which resulted in a suspended imposition of sentence from being used for sentence enhancement purposes.

Unlike in Turner, however, there is no conflict between the specification of qualifying state-court dispositions in the second clause of § 577.028.16 — which is not limited to any particular type of offense — -and the persistent offender definition in § 577.023.1(4)(a). With respect to state-court proceedings, § 577.023.16 merely requires “a conviction or a plea of guilty or a finding of guilty” resulting in specified outcomes; the type of prior offenses which can qualify an offender for sentence enhancement is specified in the definition of “intoxication-related traffic offenses” in § 577.023.1(3).

If anything, Turner’s analysis aids the State, not Denbow. Turner held that, “in the context of the entire statute, the terms ‘conviction’ [in § 577.023.16] and ‘intoxicated-related traffic offense’ are synonymous.” 245 S.W.3d at 828. Thus, Turner itself indicates that the reference to “a conviction or a plea of guilty or a finding of guilty” in the second clause of § 577.023.16 — without further qualification or limitation — incorporates the full range of offenses defined as “intoxication-related traffic offenses” in § 577.023.1(3).

In addition, Turner recognized that the description of prior state-court convictions in § 577.023.16’s second clause included cases resulting in a suspended imposition of sentence, while the description of qualifying county- and municipal-court dispositions in the first clause did not include such outcomes. 245 S.W.3d at 828. Rather than importing language from the description of state-court convictions into the description of county- and municipal-court convictions, however, Turner treated the descriptions in the first and second clauses of § 577.023.16 as independent of one another, and ascribed significance to the fact that language in one clause was omitted from the other. We follow precisely the same approach today, and refuse to apply statutory language applicable solely to county- and municipal-court convictions to the statute’s separate description of prior state-court convictions. Instead, as in Turner, we assume that the legislature intentionally chose to define the prior convictions which justified sentence enhancement differently, depending on the court in which those prior convictions were entered.

Conclusion

The judgment of the trial court, denying Denbow’s motion for post-conviction relief, is affirmed.

All concur.

      . All statutory citations are to RSMo 2000 updated through the 2007 Cumulative Supplement.

      . “Under the rule of lenity an ambiguity in a penal statute will be construed against the government or party seeking to exact statutory penalties and in favor of persons on whom such penalties are sought to be imposed.” State v. Graham, 204 S.W.3d 655, 656 (Mo. banc 2006).


author: PER CURIAM:

text:
    Michael FARNAN, Appellant, v. STATE of Missouri, Respondent.
    No. WD 69921.
    Missouri Court of Appeals, Western District.
    Feb. 23, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 30, 2010.
    Application for Transfer Denied May 25, 2010.

      Frederick J. Ernst, for Appellant.
    Evan J. Buchheim, for Respondent.
    Before Division Two: JOSEPH M. ELLIS, Presiding Judge, VICTOR C. HOWARD, Judge and CYNTHIA L. MARTIN, Judge.
   ORDER

PER CURIAM:

Michael Farnan 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. No jurisprudential purpose would be served by a formal written opinion; however, a memorandum explaining the reasons for our decision has been provided to the parties.

Judgment affirmed. Rule 84.16(b).


author: MARK D. PFEIFFER, Judge.

text:
    Stancie F. MOLDER, Appellant, v. TRAMMELL CROW SERVICES, INC., Respondent.
    No. WD 70926.
    Missouri Court of Appeals, Western District.
    Feb. 23, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 30, 2010.
    Application for Transfer Denied May 25, 2010.

      Robert J. Bjerg, Overland Park, KS, for Appellant.
    Russell F. Watters and Patrick A. Bous-quet, St. Louis, MO, for Respondent.
    Before Division III: JAMES EDWARD WELSH, Presiding Judge, and MARK D. PFEIFFER and KAREN KING MITCHELL, Judges.
   MARK D. PFEIFFER, Judge.

Stancie F. Molder (Molder) appeals the Circuit Court of Clay County’s (trial court) judgment dismissing Molder’s negligence lawsuit against Trammell Crow Services, Inc. (Trammell Crow). The trial court concluded that the applicable statute of limitations barred the lawsuit. Molder argues the trial court committed reversible error when it dismissed the lawsuit as being untimely filed because the lawsuit was timely filed within the one-year savings period prescribed in section 516.230. We agree.

Facts

This dispute arose from an injury that Molder suffered on December 16, 2000, in the Bank of America parking lot where she worked. Molder filed a lawsuit alleging that Trammell Crow’s negligence caused her injuries. Molder timely filed the original lawsuit (First Lawsuit) against Tram-mell Crow on January 31, 2005.

Molder then attempted to amend the First Lawsuit on December 15, 2005, by adding an additional defendant. In this attempt at pursuing an amended pleading, Molder made numerous mistakes. First, Molder erroneously filed the First Amended Petition in the wrong county. Eventually, Molder discovered this mistake and filed the First Amended Petition with the trial court on February 14, 2006. More importantly, in Molder’s First Amended Petition, Molder continued to list Tram-mell Crow as a party defendant in the caption of the case, but Molder failed to state a claim for relief against Trammell Crow in the specific allegations of the First Amended Petition.

On February 22, 2006, Trammell Crow filed its answer to the First Amended Petition and included the affirmative defense that Molder failed to state a claim for relief against Trammell Crow. On March 8, 2006, Trammell Crow filed a motion to dismiss Molder’s First Amended Petition. Molder then recognized the pleading error and filed a Second Amended Petition on March 10, 2006, continuing to include Trammell Crow as a named defendant in the caption of the pleading, but also specifically re-asserting claims for relief against Trammell Crow. Prior to filing the Second Amended Petition in the First Lawsuit, Molder failed to obtain leave of court to do so as required by the Missouri Rules of Civil Procedure. Thus, Trammell Crow responded to the Second Amended Petition by filing a motion to strike the Second Amended Petition.

The trial court held a hearing on March 15, 2006, to rule on Trammell Crow’s motion to dismiss the First Amended Petition and the motion to strike the Second Amended Petition. On the day of that hearing, Molder filed a motion for leave of court to file the Second Amended Petition. The trial court made three rulings at the March 15, 2006 hearing: (1) the trial court denied Trammell Crow’s motion to dismiss Molder’s First Amended Petition; (2) the trial court granted Trammell Crow’s motion to strike Molder’s Second Amended Petition; and (3) the trial court granted Molder’s motion for leave of court to file a Second Amended Petition within ten days from the date of the hearing.

After obtaining leave of court to do so and on the same date the court granted such leave, Molder filed the Second Amended Petition re-asserting claims against Trammell Crow on March 15, 2006. The Clay County Circuit Clerk (circuit clerk) stamped the Second Amended Petition as filed and received on March 15, 2006, but failed to record the filing in the docket sheet for the First Lawsuit. For reasons unclear from the record, Trammell Crow did not respond to the Second Amended Petition and filed a second motion to dismiss Molder’s First Amended Petition. At this point, Molder sought leave to obtain new trial counsel, and the record from the First Lawsuit reflects that little activity took place for approximately two years.

On March 5, 2008, the trial court held a hearing on Trammell Crow’s second motion to dismiss Molder’s First Amended Petition. Even though Molder’s trial counsel provided the trial court with a copy of the Second Amended Petition bearing the circuit clerk’s stamp reflecting that the Second Amended Petition had, in fact, been filed in accordance with the trial court’s instruction to do so, the trial court ignored the Second Amended Petition and granted Trammell Crow’s second motion to dismiss the First Lawsuit and stated in its dismissal order: “The 1st Amended Petition (the only operative pleading in this case) makes no claim against Trammel[l] Crow Services, Inc.” The trial court did, however, specify in its dismissal order of March 5, 2008, that the First Lawsuit was dismissed without prejudice.

Molder re-fíled a new lawsuit against Trammell Crow (Second Lawsuit) on July 7, 2008, four months and two days after the trial court dismissed the First Lawsuit. On February 13, 2009, Trammell Crow filed a motion to dismiss the Second Lawsuit arguing that it was barred by the five-year statute of limitations. The trial court granted Trammell Crow’s motion to dismiss the Second Lawsuit, entered a judgment dismissing the Second Lawsuit, and this timely appeal ensued.

Standard of Review

The dismissal of a claim as barred by the statute of limitations raises a question of law that this court reviews on a de novo basis. Rickner v. Golfinopoulos, 271 S.W.3d 32, 34 (Mo.App. W.D.2008). Missouri law favors disposition of a case on the merits when possible, Givens v. Highland Diversified, Inc., 850 S.W.2d 107, 109 (Mo.App. E.D.1993), and care must be given by trial courts to issue their rulings in a manner that serves the ends of justice. Horobec v. Mueller, 628 S.W.2d 942, 944 (Mo.App. E.D.1982).

Discussion

This appeal raises two questions: (1) Which petition was the operative pleading at the March 5, 2008 dismissal hearing in the First Lawsuit? (2) Does the statute of limitations bar the Second Lawsuit?

The filing of a pleading occurs when the document is delivered to the proper officer and lodged in such office. Unnerstall v. State, 53 S.W.3d 589, 591 (Mo.App. E.D.2001). “The critical date is the date the document is received; and once the document is delivered, the person filing the document is not responsible for the disposition of the document by the clerk’s office.” Euge v. Golden, 551 S.W.2d 928, 931 (Mo.App.1977); see also Faris v. Dewitt, 947 S.W.2d 847, 850 (Mo.App. S.D.1997) (holding that a motion to dismiss filed by the defendants in a negligence action was timely filed when the motion was stamped filed by the clerk but placed in the wrong file and not entered in the correct docket); Durley v. State, 685 S.W.2d 284, 286 (Mo.App. S.D.1985) (noting that a pleading need only be deposited with the clerk of the court to be considered filed).

At the March 5, 2008 hearing on the First Lawsuit, the trial court was simply wrong when it concluded that the First Amended Petition was the operative pleading in the First Lawsuit as of that date. Two years earlier, the trial court had granted Molder leave to file a Second Amended Petition on or before March 25, 2006. It is undisputed that Molder filed the Second Amended Petition with the circuit clerk’s office on March 15, 2006. The Second Amended Petition is stamped “filed” on March 15, 2006, and bears the initials of the circuit clerk. The Second Amended Petition has been included in the circuit clerk’s certification of true and accurate copies of documents from the circuit clerk’s documentary file from the First Lawsuit and is a part of the Legal File in this appeal. As a matter of law, the Second Amended Petition was filed when delivered to and received by the circuit clerk on March 15, 2006. See Unnerstall, 53 S.W.3d at 591. Therefore, as a matter of law, the Second Amended Petition was the operative pleading in the First Lawsuit at the time the trial court dismissed Molder’s First Lawsuit on March 5, 2008. Id.

The remaining issue is whether the statute of limitations barred the Second Lawsuit. We conclude the trial court committed reversible error on this point.

Missouri law requires that personal injury actions must be filed within five years of the incident producing the alleged injury. § 516.120. However, Missouri law also provides a “savings statute”:

If any action shall have been commenced within the times respectively prescribed in sections 516.010 to 516.370, and the plaintiff therein suffer a nonsuit ... such plaintiff may commence a new action from time to time, within one year after such nonsuit suffered or such judgment arrested or reversed....

§ 516.230.

Therefore, a litigant must meet three requirements in order for the savings statute to apply: (1) the original action must have been timely filed; (2) the second cause of action is the same as the first; and (3) the plaintiff suffered a non-suit in the first cause of action. Here, Molder’s Second Lawsuit meets all three requirements.

First, Molder timely filed both the original petition and the Second Amended Petition in the First Lawsuit. Molder filed the original petition on January 31, 2005, within the applicable five-year statute of limitations. After Molder committed a series of procedural pleading errors, the trial court granted Molder leave to file a Second Amended Petition in the First Lawsuit on or before March 25, 2006. Molder complied with the trial court’s ruling on Molder’s motion for leave to file Second Amended Petition and filed the Second Amended Petition with the circuit clerk’s office on March 15, 2006. As a result, Molder timely filed the original and Second Amended petitions in the First Lawsuit and, at the time of dismissal of the First Lawsuit, the operative pleading was the Second Amended Petition, which stated a claim for relief against Trammell Crow. See Unnerstall, 53 S.W.3d at 591.

Second, Molder’s Second Lawsuit is the same cause of action as the First Lawsuit. The savings statute applies only where the first and second causes of action are the same and the defendants in the second suit are the same as in the first. Centerre Bank of Kansas City, N.A. v. Angle, 976 S.W.2d 608, 619 (Mo.App. W.D.1998). Molder alleged in the Second Amended Petition that Trammell Crow’s negligence caused her injuries during a slip and fall outside of her place of employment at Bank of America. Likewise, the Second Lawsuit alleges that Molder left work at the Bank of America facility, slipped and fell on accumulated ice in the parking lot, and that Trammell Crow’s negligence caused the dangerous conditions. Both the First and Second Lawsuits claim to hold Trammell Crow legally responsible for Molder’s injuries and damages arising out of the same incident. Therefore, Molder’s Second Lawsuit is the same cause of action as the First Lawsuit. Id.

Third, Molder suffered a nonsuit on March 5, 2008. A dismissal without prejudice is a nonsuit and permits a party to bring another civil action for the same cause. Rhone v. Horton, 139 S.W.3d 199, 200 (Mo.App. E.D.2004). The savings statute allows a lawsuit to be re-filed within one year after a dismissal without prejudice of the first suit. Bushie v. Brown (In re Estate of Klaas), 8 S.W.3d 906, 909 (Mo.App. S.D.2000). Moreover, the initial dismissal begins the running of the one-year grace period provided in the savings statute, so that a re-filing within one year of the dismissal is within the statute of limitations. Britton v. Hamilton, 740 S.W.2d 704, 705 (Mo.App. E.D.1987).

The trial court dismissed Molder’s First Lawsuit without prejudice on March 5, 2008. Consequently, Molder suffered a nonsuit on March 5, 2008, and had one year from that date to re-file the lawsuit within the statute of limitations. See Rhone, 139 S.W.3d at 199. Molder filed the Second Lawsuit on July 7, 2008, four months and two days after the March 5, 2008 nonsuit. As a result, Molder filed the Second Lawsuit within the applicable statute of limitations. Id.

Conclusion

Molder’s Second Amended Petition stated a claim against Trammell Crow and was the operative pleading in the First Lawsuit at the time of its dismissal without prejudice, Molder’s petition against Trammell Crow in the Second Lawsuit asserts the same cause of action against Trammell Crow as the First Lawsuit, and Molder timely filed the petition in the Second Lawsuit within the time period prescribed in section 516.230. Therefore, we reverse the trial court’s judgment of dismissal in this, the Second Lawsuit, and remand the case for further proceedings.

JAMES EDWARD WELSH, Presiding Judge, and KAREN KING MITCHELL, Judge, concur.

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

      . Missouri Rule of Civil Procedure 55.33(a) (2009) allows a party to amend a pleading once as a matter of course. Otherwise, the pleading may be amended only by leave of court or by written consent of the adverse party. Rule 55.33(a).

      . At the current time, both parties are represented by different counsel. Although there is no reasonable dispute that Molder’s previous counsel did, in fact, file the Second Amended Petition on March 15, 2006, both of the parties’ current counsel surmised at oral argument that Molder’s previous counsel probably neglected to serve a copy of the filed Second Amended Petition on opposing counsel. Combined with the fact that the circuit clerk failed to docket the filing of the Second Amended Petition, it was understandable for Trammell Crow’s previous counsel to mistakenly assume that the Second Amended Petition had not been filed after leave had been granted by the trial court.

      . Trammell Crow could have sought immediate redress if it believed the trial court’s order granting Molder leave to file a second amended petition was in error. However, Trammell Crow never sought a writ of mandamus or prohibition or otherwise challenged that ruling on any basis at any time.


text:
    Jason Adam INGRIM, Appellant, v. STATE of Missouri, Respondent.
    No. WD 69938.
    Missouri Court of Appeals, Western District.
    March 2, 2010.
    Motion for Rehearing and/or Transfer to Supreme Court Denied March 30, 2010.
    Application for Transfer Denied May 25, 2010.
    Jonathan Sternberg, for Appellant.
    Robert Bartholomew, for Respondent.
    Before Division Two: Joseph M. Ellis, Presiding Judge, Victor C. Howard, Judge and Cynthia L. Martin, Judge.
   ORDER

PER CURIAM:

Jason Ingrim appeals from the motion court’s denial of his post-conviction motion filed pursuant to Rule 29.15 on the basis that his trial counsel was ineffective. Because Ingrim has failed to present any evidence of prejudice, the judgment is affirmed.

Judgment affirmed. Rule 84.16(b).


text:
    Samuel K. LIPARI, Appellant, v. NOVATION, LLC, et al., Respondents.
    No. WD 70832.
    Missouri Court of Appeals, Western District.
    March 9, 2010.
    Application for Transfer to Supreme Court Denied April 27, 2010.
    Application for Transfer to Denied May 25, 2010.
    Samuel K. Lipari, Independence, MO, Appellant Acting Pro Se.
    William E. Quirk, Kansas City, MO, for Respondent, Shughart, Thomson & Kilroy.
    Mark A. Olthoff, Kansas City, MO, for Respondents, Piper, and Duff.
    Michael Thompson, Kansas City, MO, for Respondent, Husch Blackwell Sanders.
    Peter F. Daniel, Kansas City, MO, for Respondent, Lathrop & Gage.
    Jay Heidrick, Overland Park, KS, for Respondents, Grundhofer, Cecere, and Davis.
    John Power, Kansas City, MO, for Respondents, Novation, University, VHA, Spindler, Bezanson, Duncan, Oliverius, Trease, Robb, Terry, Cox Health, St. Luke, Stormont-Vail, Baker, GHX, Neo-forma, Zollars, Nonomaque, and Volunteer Hosp.
    Before THOMAS H. NEWTON, C.J., LISA WHITE HARDWICK, and CYNTHIA R. MARTIN, JJ.
   ORDER

PER CURIAM:

Mr. Samuel K. Lipari appeals from trial court judgments granting motions to dismiss and a motion for judgment on the pleadings. For reasons stated in the memorandum provided to the parties, we affirm. Rule 84.16(b).