Section 10.24 Standard of Effectiveness

• Library: App Ct Prac 2015 Supp

2. (§10.24) Standard of Effectiveness

In order to be successful in a claim of ineffective assistance of counsel, the movant has the burden to establish that the performance of counsel fell below that degree of performance that conforms to the care and skill of a reasonably competent lawyer rendering similar services under the existing circumstances. Also, the movant must establish that counsel’s behavior prejudiced the movant. Seales v. State, 580 S.W.2d 733 (Mo. banc 1979); Lowery v. State, 650 S.W.2d 692 (Mo. App. S.D. 1983).

Counsel is presumed to be competent and is not to be adjudged incompetent by reason of what, in retrospect, appear to be errors of judgment. Wilson v. State, 626 S.W.2d 243 (Mo. banc 1982). In other words, counsel will not be faulted for his or her “trial strategy.”

Rules 24.035 and 29.15 specifically provide that they govern the proceedings for raising ineffective assistance of appellate counsel. Previously, a claim was usually raised by a motion to recall mandate filed in the appellate court. State v. Hire, 857 S.W.2d 230 (Mo. App. W.D. 1992); State v. Williams, 844 S.W.2d 562 (Mo. App. W.D. 1992). Effectiveness of counsel in a motion to vacate proceeding cannot be raised in the proceeding. Lingar v. State, 766 S.W.2d 640 (Mo. banc 1989).

2013 SUPPLEMENT (§10.24)

2. (§10.24) Standard of Effectiveness

Counsel can be found ineffective for affirmatively misadvising a movant about parole eligibility if the movant would not have pleaded guilty if the movant had known that the movant was not eligible for parole. Coke v. State, 229 S.W.3d 638 (Mo. App. W.D. 2007). Also, in Webb v. State, 334 S.W.3d 126 (Mo. banc 2011), counsel advised a client that he would serve 40% of his sentence when the movant would actually have to serve 85%. This affirmative misadvice warranted an evidentiary hearing. The Court also noted in Webb that there is a difference in an attorney’s failure to inform (which is not ineffective) and giving affirmative misinformation (which is ineffective).

In Missouri v. Frye, 132 S. Ct. 1399 (2012), and Lafler v. Cooper, 132 S. Ct. 1376 (2012), the U.S. Supreme Court held that ineffective assistance of counsel in the plea bargaining process required relief. In Frye, the defendant was not timely advised of a plea offer and ultimately accepted a less-favorable offer. In Lafler, the defendant rejected a plea offer because of erroneous advice by counsel and went to trial.

But the Southern District of the Missouri Court of...