LEE HARRELL,                                 )
                                             )
       Movant-Appellant,                     )
                                             )
v.                                           )       No. SD32710
                                             )       Filed: 2-24-14
STATE OF MISSOURI,                           )
                                             )
       Respondent-Respondent.                )

           APPEAL FROM THE CIRCUIT COURT OF PHELPS COUNTY

                        Honorable Tracie L. Storie, Circuit Judge

AFFIRMED

       Lee Harrell (Movant) appeals from an order denying his amended Rule 29.15

motion for post-conviction relief after an evidentiary hearing.1 Because the motion

court’s decision to deny relief was not clearly erroneous, we affirm.

       In July 2009, Movant was charged by information with two offenses. Count I

alleged that Movant had committed the class B felony of burglary in the first degree by

knowingly and unlawfully entering a building, for the purpose of stealing, while armed

with a deadly weapon. See § 569.160 RSMo (2000). Count II alleged that Movant had



       1
         All rule references are to Missouri Court Rules (2013). All statutory references
are to RSMo Cum. Supp. (2008) unless otherwise indicated.
committed the unclassified felony of armed criminal action (ACA) by committing the

aforementioned burglary with and through the knowing use, assistance and aid of a

dangerous instrument. See § 571.015 RSMo (2000). A jury found Movant guilty of both

offenses.     The trial court imposed consecutive sentences of ten and fifteen years,

respectively. We affirmed the conviction and sentence on direct appeal in State v.

Harrell, 342 S.W.3d 908 (Mo. App. 2011) (hereinafter, Harrell I).

         Movant filed a timely pro se Rule 29.15 motion for post-conviction relief.

Thereafter, appointed counsel filed an amended motion. After conducting an evidentiary

hearing, the motion court issued findings of fact and conclusions of law denying relief.2

This appeal followed.

                                           Point I

         Movant’s first point contends that trial counsel was ineffective for failing to

object to Instruction No. 9, the verdict-directing instruction on the ACA charge, because

the instruction erroneously contained the definition for a dangerous instrument, rather

than a deadly weapon.

         To obtain post-conviction relief on the basis of ineffective assistance of counsel,

the movant must satisfy the two-prong test in Strickland v. Washington, 466 U.S. 668

(1984). See Taylor v. State, 382 S.W.3d 78, 80 (Mo. banc 2012). A movant must

establish that:      (1) counsel’s performance fell below an objective standard of

reasonableness; and (2) the movant was thereby prejudiced. Id. at 80-81. Both the

performance and prejudice prongs of the Strickland test must be proven to obtain relief.

State v. Kinder, 942 S.W.2d 313, 335 (Mo. banc 1996). If a movant fails to satisfy either

         2
             The Honorable Tracie L. Storie acted as both the trial court and motion court
judge.

                                              2
prong, the claim fails. Marschke v. State, 185 S.W.3d 295, 302 (Mo. App. 2006).

Consideration of the other prong is unnecessary. Id.

       While the motion court noted that Instruction No. 9 was erroneous because it

failed to comply with the pattern Missouri Approved Instruction, the motion court also

found that Movant was not prejudiced by counsel’s failure to object to the instruction.

We review that ruling for clear error. Rule 29.15(k); Morrow v. State, 21 S.W.3d 819,

822 (Mo. banc 2000). “A motion court’s findings and conclusions are clearly erroneous

only if the Court, after reviewing the entire record, is left with the definite and firm

impression that a mistake has been made.” Gehrke v. State, 280 S.W.3d 54, 56-57 (Mo.

banc 2009).

       Instruction No. 9 stated:

              As to Count II, if you find and believe from the evidence beyond a
       reasonable doubt:

              First, that defendant committed the B felony of Burglary 1st, as
                       submitted in Instruction No. 7 , and

              Second, that defendant committed that offense by, with through the
                    use, assistance, and aid of a deadly weapon,

       then you will find the defendant guilty under Count II of armed criminal
       action.

              As used in this instruction, the term “dangerous instrument” means
       any instrument, article, or substance that, under the circumstances in
       which it is used, is reasonably capable of causing death or other serious
       physical injury.

              However, unless you find and believe from the evidence beyond a
       reasonable doubt each and all of these propositions, you must find the
       defendant not guilty of that offense.




                                           3
(Emphasis added.) Movant argues that the erroneous inclusion of the definition of

“dangerous instrument” confused and misdirected the jury, and therefore counsel was

ineffective in failing to object to its submission.3

        This Court has already determined that the erroneous substitution of the

“dangerous instrument” definition in Instruction No. 9 did not result in plain error.

Harrell I, 342 S.W.3d at 919-20. As our Supreme Court explained in Johnson v. State,

406 S.W.3d 892 (Mo. banc 2013):

        [T]he determination there was no plain error prejudice resulting from the
        State’s comments does not end the inquiry because the Strickland standard
        of prejudice is less rigorous than the plain error standard. Deck v. State,
        381 S.W.3d 339, 358 (Mo. banc 2012). Strickland prejudice requires only
        that there is a reasonable probability that the result would have been
        different. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. The “theoretical
        difference in the two standards of review will seldom cause a court to
        grant postconviction relief after it has denied relief on direct appeal....”
        Deck v. State, 68 S.W.3d 418, 428 (Mo. banc 2002) (citing Strickland, 466
        U.S. at 697, 104 S.Ct. 2052). There are only a “small number of cases in
        which the application of the two tests will produce different results.” Id.

Id. at 904. The motion court found that the error in Instruction No. 9 did not result in

Strickland prejudice to Movant. That finding is not clearly erroneous.

        “An error by counsel, even if professionally unreasonable, does not warrant

setting aside the judgment of a criminal proceeding if the error had no effect on the

judgment.” Strickland, 466 U.S. at 691. “It is not enough for the defendant to show that

the errors had some conceivable effect on the outcome of the proceeding.” Id. at 693.



        3
           There is no dispute that Instruction 9 erroneously contained the definition of
“dangerous instrument.” See Notes on Use 7, MAI-CR 3d 332.02. The general rule is
that instructional errors are not cognizable in a Rule 29.15 proceeding unless the error
rises to the level of constitutional error. Tilley v. State, 202 S.W.3d 726, 732 (Mo. App.
2006). Our review here is limited to whether the motion court clearly erred in finding
that Movant was not prejudiced by counsel’s failure to object to the submission of
Instruction No. 9.

                                               4
“The defendant must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.          A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694; see also State v. Shurn, 866 S.W.2d 447, 468 (Mo. banc 1993).

       Paragraph Second of Instruction No. 9 required the jury to find beyond a

reasonable doubt “that defendant committed that offense by, with through the use,

assistance, and aid of a deadly weapon.” (Emphasis added.) A “deadly weapon” is

defined as “any firearm, loaded or unloaded, or any weapon from which a shot, readily

capable of producing death or serious physical injury, may be discharged, or a

switchblade knife, dagger, billy, blackjack or metal knuckles[.]” § 556.061(10). This

classification applies irrespective of the weapon’s actual use. State v. Payne, 250 S.W.3d

815, 819 (Mo. App. 2008). There was no requirement that the term “deadly weapon” be

defined in Instruction No. 9, unless the trial court decided to do so or a party so

requested. See Harrell, 342 S.W.3d at 913 n.7; Notes on Use 7, MAI-CR 3d 332.02. As

we noted in Harrell I, the trial court permitted Movant’s counsel to provide the jury with

a definition of “deadly weapon” and a case law definition of “dagger” for the jurors to

use in deciding whether Paragraph Second had been met. Harrell I, 342 S.W.3d at 921-

22. Movant was actually better off because of his counsel’s decision, in that counsel was

permitted to supplement the definition of “deadly weapon” with a not-in-MAI definition

of “dagger” used in Payne.       Movant’s counsel then spent most of his argument

attempting to convince the jury that the replica sword was not a “deadly weapon.”

(“What I’m here to talk about is deadly weapons.”; “Let’s talk about what makes a deadly

weapon, because you are not going to get any guidance from the jury instructions.”) As




                                            5
there was ample evidence that the replica sword met the requirements of the correct

definitions of deadly weapon and dagger provided by Movant’s counsel, Movant suffered

no prejudice from the instructional error.        See Harrell I, 342 S.W.3d at 912-15.

Accordingly, there is no reasonable probability that the jurors were confused or misled by

Instruction No. 9. Movant’s counsel provided correct definitions for “deadly weapon”

and “dagger” during closing argument and focused the jurors’ attention on whether the

replica sword met those definitions.

       Assuming arguendo the jurors did attempt to apply the “dangerous instrument”

definition, our conclusion would not change because the State took on a higher-than-

necessary burden because of the error.         The definition of deadly weapon applies

irrespective of how the defined object is actually used. See § 556.061(10); Payne, 250

S.W.3d at 819.      A “dangerous instrument,” on the other hand, is defined as “any

instrument, article or substance which, under the circumstances in which it is used, is

readily capable of causing death or other serious physical injury[.]”           § 556.061(9).

Because there was evidence that the replica sword had only been used to gain entry to the

church and on a door inside the structure, this definition was actually favorable to

Movant. By including this definition in Instruction No. 9, the jurors could have believed

the State had to prove beyond a reasonable doubt that Movant used the replica sword in a

manner which was capable of causing death or serious physical injury. See § 566.061(9).

“A criminal jury instruction that puts an additional burden on the state beyond that which

is legally required in order to establish guilt, is not prejudicial to the defendant.” State v.

Livingston, 801 S.W.2d 344, 350 (Mo. banc 1990). Movant has not shown that there is a




                                              6
reasonable probability that the outcome of his trial would have been different if counsel

had objected to the submission of Instruction No. 9. Point I is denied.

                                         Point II

       Movant’s second point states:

       The motion court clearly erred in denying [Movant’s] Rule 29.15 motion
       for post-conviction relief because a review of the record leaves a definite
       and firm impression that [Movant] was denied due process of law as
       guaranteed by the Fifth and Fourteenth Amendments to the United States
       Constitution and Article I, Section 10 of the Missouri Constitution in that
       the court violated Section 217.362 by not notifying the Department of
       Corrections prior to sentencing to determine whether [Movant] was
       eligible for the long-term drug treatment program as required by the
       statute. [Movant] was prejudiced in that the court’s omission constituted a
       substantial failure to comply with Section 217.362 and thereby violated
       [Movant’s] constitutional rights to due process.

Movant’s point alleges trial court error. Generally, claims of trial court error are not

cognizable in a Rule 29.15 motion. Osborn v. State, 370 S.W.3d 324, 327 (Mo. App.

2012). “A Rule 29.15 motion cannot be used to obtain review of matters which were or

should have been raised on direct appeal.” Phillips v. State, 214 S.W.3d 361, 364 (Mo.

App. 2007).   “Claims of trial error will only be considered in a Rule 29.15 motion where

fundamental fairness requires, and then, only in rare and exceptional circumstances.”

McIntosh v. State, 413 S.W.3d 320, 331 (Mo. banc 2013) (citation omitted).

       Movant was sentenced on January 11, 2010. He filed his notice of appeal the next

day. All briefs were filed before the end of 2010, and the case was docketed for oral

argument in April 2011. Movant and the trial court were not informed of Movant’s

ineligibility for the treatment program until March 16, 2011. Under these circumstances,

Movant’s Rule 29.15 motion presented his first opportunity to raise this claim of trial

court error. Accordingly, this is one of those rare circumstances when fundamental




                                             7
fairness requires us to consider this claim of trial court error as a part of his post-

conviction proceeding.4

       Section 217.362 provides for the creation and implementation of “an intensive

long-term program for the treatment of chronic nonviolent offenders with serious

substance abuse addictions who have not pleaded guilty to or been convicted of a

dangerous felony as defined in section 556.061.” § 217.362.1.

       Prior to sentencing, any judge considering an offender for this program
       shall notify the department. The potential candidate for the program shall
       be screened by the department to determine eligibility. The department
       shall, by regulation, establish eligibility criteria and inform the court of
       such criteria. The department shall notify the court as to the offender’s
       eligibility and the availability of space in the program. ... If the court is
       advised that an offender is not eligible or that there is no space available,
       the court shall consider other authorized dispositions.

§ 217.362.2.   After Defendant was found guilty, he was apprised of his right to a

sentencing assessment report, and he waived that right. At sentencing, Movant’s counsel

requested that the trial court order Movant be placed in the § 217.362 treatment program.

The following colloquy occurred:

       THE COURT: I’m of the opinion that – and we obviously haven’t had
       him screened – based on his prior convictions, he probably wouldn’t
       qualify. Did you investigate?

       [MOVANT’S COUNSEL]: He does qualify for the long-term treatment
       program, your Honor. It requires two prior convictions and a sentence of
       at least five years.

       THE COURT: But with the other prior matters involving assaults and so
       forth –

       4
           Our decision to review Movant’s claim on the merits is supported by the
Court’s analysis in State ex rel. Taylor v. Moore, 136 S.W.3d 799 (Mo. banc 2004), a
case heavily relied on by Movant. In Taylor, a defendant sought relief on a similar claim
through a writ of habeas corpus. Id. at 801. In granting the defendant’s relief, the Court
noted and excused the defendant’s failure to bring his claim as a part of a Rule 24.035
post-conviction proceeding. Id.

                                            8
       [MOVANT’S COUNSEL]: They do not disqualify him.

       THE COURT: That would not?

       [MOVANT’S COUNSEL]: No, sir, not to my knowledge. I have – I have
       not had [Movant] screened, but I understand your concerns with crimes
       involving violence, and that would preclude him from drug court, but it
       does not preclude him from long-term treatment.

       THE COURT: Well, of course, what qualifies is determined by rules
       promulgated, adopted by the Department of Corrections.

       [MOVANT’S COUNSEL]: Yes, sir.

       THE COURT: Until we get their input, it’s hard to say one way or the
       other.

The trial court then proceeded with sentencing, ordering Movant to serve consecutive

sentences of ten and fifteen years on the charges of burglary and ACA, respectively.

After advising Movant of his rights under Rule 29.15, the trial court stated:

       I have absolutely no objection to a placement in the long-term drug
       treatment, drug and alcohol abuse program. Again, whether or not it fits, I
       can’t say, but I will order it at this point, unless we find out otherwise
       within the internal workings of the Department of Corrections, that
       [Movant] doesn’t qualify under 217.362, a placement in long-term drug
       treatment.

The Department of Corrections (DOC) determined Movant was ineligible for the

treatment program. A parole analyst advised the trial judge of the DOC’s determination

“in the event [he] wish[ed] to take alternative action regarding the offender’s sentence.”

The motion court determined Movant was not prejudiced because the trial court had

imposed its sentences irrespective of Movant’s eligibility for the treatment program.

       Movant argues that the trial court erred in failing to investigate his eligibility prior

to sentencing. Movant argues his case is analogous to State ex rel. Taylor v. Moore, 136

S.W.3d 799 (Mo. banc 2004), and that we should remand the case for a new sentencing



                                              9
hearing. In Taylor, the defendant pleaded guilty to three counts of first-degree trafficking

and one count of second-degree trafficking. Id. at 801. The plea agreement provided the

defendant was to be placed in a drug treatment program pursuant to § 217.362. Id. After

sentencing, the DOC determined the defendant was ineligible for the treatment program.

Id. The Court determined the defendant was entitled to habeas relief because the trial

court erred in sentencing him without first verifying his eligibility for the treatment

program. Id. The Court specifically noted that “if [the defendant] had known he was

ineligible for [the treatment program], he would have rejected the plea agreement and

gone to trial.   He expected to serve less than two years…but now serves lengthy

sentences.” Id. at 802.

       The motion court distinguished Taylor because the defendant’s guilty plea was

premised on his sentencing to the treatment program. We agree with that analysis. In

this case, the trial court imposed the sentences he intended to give Movant. Those

sentences were in no way conditioned upon Movant’s eligibility for long-term treatment.

The trial judge explained that he had no objection to Movant’s participation in the long-

term treatment program if he was determined to be eligible. The sentencing transcript

reveals that the trial court expressed serious doubts as to whether Movant was eligible for

the treatment program and reiterated that his eligibility for the program would need to be

evaluated by the DOC. We see no indication in this record that the sentences imposed on

Movant were in any way affected by whether he was, or was not, eligible for long-term

treatment.

       Moreover, any error on the trial court’s part was invited. Movant waived his right

to a Sentencing Assessment Report, which would have evaluated his eligibility for




                                            10
various DOC programs. More importantly, Movant’s counsel repeatedly assured the trial

court that Movant was eligible for the treatment program. This led the trial court into

making the very error now challenged by Movant. He may not take advantage of self-

invited error. Taylor v. State, 173 S.W.3d 359, 367 (Mo. App. 2005); State v. Crenshaw,

59 S.W.3d 45, 50 (Mo. App. 2001). Unlike Taylor, 136 S.W.3d at 802, the record here is

clear that Movant’s sentence was not contingent on his acceptance into the long-term

treatment program. Point II is denied.

       After reviewing the entire record, we do not have a definite and firm impression

that a mistake was made. Therefore, the findings and conclusions of the motion court are

not clearly erroneous. See Rule 29.15(k); Gehrke, 280 S.W.3d at 56-57. Accordingly, the

motion court’s order denying Movant’s amended Rule 29.15 motion is affirmed.



JEFFREY W. BATES, P.J. – OPINION AUTHOR

GARY W. LYNCH, J. – CONCUR

DON E. BURRELL, J. – CONCUR




                                          11
