WILLIAM SCOTT SOURS,                                    )
                                                        )
                    Movant-Appellant,                   )
                                                        )
           vs.                                          )     No. SD35776
                                                        )     Filed: July 18, 2019
STATE OF MISSOURI,                                      )
                                                        )
                    Respondent-Respondent.              )


                     APPEAL FROM THE CIRCUIT COURT OF JASPER COUNTY

                                        Honorable Gayle L. Crane, Judge


AFFIRMED

           William Scott Sours (“Sours”), appeals from a judgment of the motion court denying his

pro se Rule 29.15 1 motion to set aside his conviction of the class C felony of receiving stolen

property. Because the motion court’s decision to deny relief after an evidentiary hearing was not

clearly erroneous, we affirm.




1
    All rule references are to Missouri Court Rules (2019).
                               Factual and Procedural Background

           We recite the evidence in accord with the motion court’s explicit and implicit

determinations, including those regarding credibility. Shockley v. State, No. SC96633 2019

WL 1614593, at *3 (Mo. banc Apr. 16, 2019). Other information is set forth as necessary for

clarity.

           On February 21, 2015, Brad McDaniel (“McDaniel”) and Michele Johnson (“Johnson”)

went shopping at The Buckle, a clothing store in Joplin. McDaniel purchased a shirt and a pair of

jeans for $231.23, as a birthday gift for Johnson. Afterwards, the couple went to a movie. Johnson

left the bag of clothes in the trunk of McDaniel’s car (including the receipt), along with her purse

and cell phone (a Samsung Galaxy S5 with a “hot pink and teal” Otterbox case and screen

protector). The cell phone was in Johnson’s purse. Johnson’s mother purchased the phone and

Otterbox on February 6, 2015, for Johnson’s birthday. The cell phone was purchased at a cost of

$649.99, and the Otterbox case and screen protector was purchased at a cost of $78.

           Upon exiting the movie theater, McDaniel and Johnson discovered that McDaniel’s car

was broken into. Johnson’s bag of clothes from The Buckle (including the receipt), and her purse

and cell phone had been stolen.

           McDaniel and Johnson reported the break-in to the Joplin Police Department. They gave

detailed descriptions of the items stolen, and Johnson gave a value of $649 for the phone as of the

night of the theft.

           McDaniel went to The Buckle, told the manager what happened, and asked him to call the

police if anyone tried to return the clothes.




                                                 2
           On February 23, 2015 (two days after the break-in and theft), Sours and a co-conspirator

walked into The Buckle and attempted to return the stolen clothes, using the stolen receipt. The

manager spoke to the two men, then stepped outside and called police.

           Officer Wes Massey (“Officer Massey”) responded. He arrested both Sours and his co-

conspirator. In Sours’ pants pocket, Officer Massey found a Samsung Galaxy S5 cell phone in a

pink and teal Otterbox. Sours, absent any questions from Officer Massey about the phone, asserted

the phone “belonged to his girlfriend.” Officer Massey subsequently found the report McDaniel

and Johnson had made regarding the car break-in and stolen items. He dialed the number

associated with the stolen cell phone, and the recovered phone “started ringing.”

           On February 24, 2015, Officer Massey filed a probable cause statement asserting that Sours

committed the offense of receiving stolen property.” 2

           On May 22, 2015, the prosecutor of Jasper County filed an Information charging Sours

with the class C felony of receiving stolen property, pursuant to section 570.080, 3 in that

           on or about February 23, 2015, in the county of Jasper, State of Missouri, the
           defendant, with the purpose to deprive the owner of a Samsung Galaxy S5, received
           such property, of a value of at least five hundred dollars, knowing or believing that
           it had been stolen.




2
    As relevant here, the probable cause statement listed the following facts in support:

           On 02/23/2015 at 1451 hours, . . . Sours and . . . Reynolds [] were attempting to return stolen items
           (clothing reference Joplin PD case #15-001526 to the Buckle store. Staff at Buckle called when the
           transaction matched the information given from the victim, and both subjects were detained when
           officers arrived. Warrants check on Sours revealed he had Duquesne PD warrants, and during a
           search incident of his person a cell phone (white Samsung Galaxy with a neon pink and teal Otter
           box phone cover) was located in his right pants pocket. The phone matched the description of a
           reported stolen cell phone (Joplin PD case #15-001526), and had matching DEC and HEX numbers
           . . . given from the reported victim, the phone was valued at over $649. Officer Massey called the
           listed phone number from the stolen cellular phone . . . and the white Samsung Galaxy with a neon
           pink and teal Otter box phone cover began to ring.
3
    All references to statutes are to RSMo Cum.Supp. 2011, unless otherwise indicated.


                                                             3
         Significant discovery, including numerous depositions, occurred. Sours made several pro

se filings during this time. 4

         An Amended Information was filed on November 6, 2015, again charging Sours with the

class C felony of receiving stolen property, pursuant to section 570.080, in that

         on or about February 23, 2015, in the county of Jasper, State of Missouri, the
         defendant, with the purpose to deprive the owner of a Samsung Galaxy S5, with an
         Otter Box case and screen protector, and jeans and shirt from The Buckle, retained
         such property, of a value of at least five hundred dollars, knowing or believing that
         it had been stolen.

         At a pre-trial conference on November 9, 2015, Sours’ counsel made an oral objection to

the filing of the amended information. The trial court scheduled argument on Sours’ objection for

November 16, 2015 (one day before the scheduled jury trial), at which time all pending motions

were to be heard. 5

         At the pre-trial conference on November 16, 2015, Sours filed a written “Objection to filing

of Amended Information and Motion to Dismiss Amended Information,” and the trial court heard

argument thereon. Sours’ counsel argued that until the amended information was filed, the

defense’s trial preparation focused on the cell phone only, and that the “additional items” now

included in the amended information, violated her “client’s . . . due process rights, constitutionally

speaking, as well as his rights to know the charges against him and to be able to prepare a proper

defense for those charges against him.”                    Defense counsel conceded that “possibly some

information at the end of one of the depositions . . . would have included” some information on

the additional items, but claimed that defense preparations had been aimed only at defending


4
 The record reflects that the trial court made efforts to treat these filings with due consideration, while also recognizing
the narrow boundaries of authorized pro se actions while represented by counsel. See Lewis v. State, 767 S.W.2d 49,
52 (Mo.App. W.D. 1989)
5
 In so ruling, the trial court explained that it was scheduling in this manner because, “I don’t know what else to do;
okay?” Defense counsel replied, “Okay.”


                                                             4
against the cell phone allegations, not against the clothing allegations. The prosecutor argued that

the amendment was authorized pursuant to Rule 23.08, 6 and that the “clothing was always part of

the case, and it had been discussed at the depositions.” The depositions included the “owners of

the clothing.” The trial court rejected Sours’ motion.

           A jury trial commenced November 17, 2015. Sours did not testify. The jury found Sours

guilty of the class C felony of receiving stolen property, and the trial court sentenced Sours, as a

prior and persistent offender, to 15 years in the Department of Corrections.

           On appeal, this Court affirmed the judgment of the trial court, pursuant to Rule 30.25, in

an unpublished opinion in State v. Sours, No. SD34296. Mandate issued on December 19, 2016.

           On January 31, 2017, Sours timely filed a pro se motion, pursuant to Rule 29.15, setting

forth seven claims.

           On February 9, 2017, the motion court appointed the public defender to represent Sours

On March 9, 2017, the motion court granted a thirty-day extension of time in which to file an

amended motion. Appointed counsel timely filed an amended motion on May 10, 2017, raising

six claims. The amended motion purported to also incorporate the seven claims in Sours’ original

pro se motion by attaching it to the amended motion.

           On December 29, 2017, Sours filed a pro se motion styled “Motion To Strike Amended

Motion.” Therein, he requested that the motion court “strike the Amended Motion filed by




6
    Rule 23.08 states:

                    Any information may be amended or an information may be substituted for an indictment
           at any time before verdict or finding if:
                     (a) No additional or different offense is charged, and
                    (b) A defendant’s substantial rights are not thereby prejudiced.
                    No such amendment or substitution shall cause delay of a trial unless the court finds that a
           defendant needs further time to prepare a defense by reason of such amendment or substitution.


                                                            5
appointed counsel,” allow Sours “to proceed on his claims presented in his pro se motion,” and

allow Sours “to proceed pro se at his rule 29.15 hearing.” Sours also asserted that:

           appointed counsel failed to advance his claims cited in his pro se Motion to Vacate,
           Set Aside or Correct the Judgment or Sentence or advance any claims of ineffective
           assistance of direct appeal counsel. Further, counsel violated [Rule] 29.15(g) when
           he incorporated Movant’s pro se Motion within the Amended Motion . . .
           abandoning Movant’s claims. In interpreting Rule 29.15, ‘the same standards as
           those used in the construction of statutes’ is used. Rohwer v. State, 791 S.W.3d
           741, 743 (Mo.App. W.D. 1990). The plain and ordinary meaning of rule 29.15(g)
           is to mandate the appointment of counsel and ‘the amended motion shall not
           incorporate by reference or attachment material contained in any previously filed
           motion nor attach or incorporate the pro se motion.’ Id. 29.15(g). Movant’s
           appointed counsel clearly has violated Rule 29.15(g) and abandoned Movant’s
           viable claims.

           On August 6, 2018, the motion court held an evidentiary hearing. 7 Sours’ counsel

explained that he had verified with Sours that it was still Sours’ “intent and his request to strike

the Amended Motion.” Counsel explained that this was his first “PCR case,” and that he had

attached the pro se motion to the amended motion, not realizing that the post-conviction rules had

changed to prohibit that particular practice. The motion court granted Sours’ request to strike the

amended motion and to proceed on Sours’ pro se motion. 8

           The motion court then heard testimony from appellate counsel, trial counsel, and Sours. In

relevant part, appellate counsel testified that she had been an appellate public defender for nearly

thirty years, and over the course of those thirty years, she had handled “over a thousand” appeals.

She identified a copy of the brief she filed, in which she challenged the sufficiency of the evidence

and asserted a claim of instructional error.




7
    The motion court took judicial notice of both the underlying criminal file, and the appeal file.
8
 There is no indication in the record that the motion court ruled on Sours’ request “to proceed pro se at his rule 29.15
hearing.” Regardless, he was represented by appointed counsel at the motion hearing.


                                                             6
       Appellate counsel testified that she was “certain” that in preparing Sours’ appeal, she

reviewed the entire transcript, made notes about what objections were raised and objections that

were not raised, and reviewed the relevant charging documents. The motion court specifically

asked counsel whether there was anything that she missed in Sours’ appeal. Counsel replied, “I’ve

raised this issue before. If I thought it would have won, I would have raised it.” Appellate counsel

agreed that there was no substantive difference between the complaint and the information.

       On September 5, 2018, the motion court denied Sours’ motion. This appeal followed.

       In two points on appeal, Sours asserts the motion court erred in failing to conduct an

abandonment inquiry because a presumption of abandonment arose when appointed counsel

incorporated Sours’ pro se motion by attaching it to the amended motion and failed to promptly

correct the defect; and that the motion court clearly erred in denying his Rule 29.15 motion because

appellate counsel was ineffective for failing to raise on appeal the trial court’s denial of Sours’

motion to strike the amended information or remand for a preliminary hearing.

                                       Standard of Review

               This Court reviews the denial of post-conviction relief to determine whether
       the motion court’s findings of fact and conclusions of law are clearly erroneous.
       Rule 29.15(k). A judgment is clearly erroneous when, in light of the entire record,
       the court is left with the definite and firm impression that a mistake has been made.
       The motion court’s findings are presumed correct. This Court defers to the motion
       court’s superior opportunity to judge the credibility of witnesses.

               To be entitled to post-conviction relief for ineffective assistance of counsel,
       a movant must show by a preponderance of the evidence his or her trial counsel
       failed to meet the Strickland test to prove his or her claims. Strickland v.
       Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under
       Strickland, Movant must demonstrate: (1) trial counsel failed to exercise the level
       of skill and diligence reasonably competent trial counsel would in a similar
       situation, and (2) he was prejudiced by that failure. Id. at 687.

               Movant must overcome the strong presumption trial counsel’s conduct was
       reasonable and effective. To overcome this presumption, a movant must identify
       specific acts or omissions of counsel that, in light of all the circumstances, fell

                                                 7
       outside the wide range of professional competent assistance. Trial strategy
       decisions may be a basis for finding ineffective assistance of counsel only if that
       decision was unreasonable. Strategic choices made after a thorough investigation
       of the law and the facts relevant to plausible opinions are virtually
       unchallengeable[.]

              To establish relief under Strickland, a movant must prove prejudice.
       Prejudice occurs when there is a reasonable probability that, but for counsel’s
       unprofessional errors, the result of the proceeding would have been different.

Shockley, 2019 WL 1614593, at *3 (internal quotations and citations omitted).

                                             Analysis

                                              Point I

       In his first point, Sours argues that the motion court clearly erred in “failing to conduct an

abandonment inquiry before proceeding on, and denying, [his] Rule 29.15 motion[.]” Specifically,

Sours asserts that “a presumption of abandonment arose when appointed post-conviction counsel

incorporated the pro se motion by attaching it to the amended motion and failed to promptly correct

the defect when it was brought to his attention[.]” Sours points to the fact that “effective January

1, 2017, Rule 29.15 no longer allows the prior practice of incorporation by attachment,” and argues

that the effect here was to “render[] the entire amended motion defective[.]”

       Counsel made an ineffectual attempt to incorporate Sours’ pro se claims into the amended

motion. Sours wanted to keep his pro se claims, and therefore sought and obtained reinstatement

of the original pro se motion. Sours requested that the amended motion claims be dismissed, and

he be allowed to proceed solely on his original pro se claims. The motion court gave Sours what

he asked for. “[I]t is axiomatic that a defendant may not take advantage of self-invited error or

error of his own making.” Miller v. State, 558 S.W.3d 15, 22 (Mo. banc 2018) (internal quotation

and citation omitted).




                                                 8
       Even if this were not so, abandonment is inapplicable. The amended motion was timely

and effectual as filed. See Latham v. State, 554 S.W.3d 397, 403 (Mo. banc 2018). The motion

may not have included every claim Sours wanted, but it was sufficient to raise the extant claims

within its four corners.

       Sours fails to demonstrate that the motion court clearly erred in failing to conduct an

abandonment inquiry based on counsel’s attempt to incorporate Sours’ pro se motion in the

amended motion, or in denying his pro se Rule 29.15 motion. Point I is denied.

                                                Point II

       Sours’ second point argues that the motion court clearly erred in denying his Rule 29.15

motion because appellate counsel was ineffective in failing to “raise a claim on direct appeal that

the trial court erred in denying [] Sours’ motion to strike the Amended Information or remand for

a new preliminary hearing.”

       The motion court’s findings on this issue were as follows:

       Movant was originally charged with receiving stolen property. The amended
       information charged the same offense, receiving stolen property. The amended
       information alleged that Movant not only retained a stolen cell phone, but also a
       phone case, screen protector, and items of clothing. Movant was not prejudiced by
       the trial court’s decision to allow the filing of the amended information because the
       parties had completed substantial pretrial discovery as to the value of the items
       alleged to have been retained by defendant and his co-defendant[.]

       Missouri Supreme Court Rule 23.08 provides: ‘Any information may be amended
       . . . at any time before verdict . . . if (a) No additional or different offense is charged,
       and (b) A defendant’s substantial rights are not thereby prejudiced.’ This Court
       finds that the trial court acted within its discretion when it permitted the State to
       amend its information on November 6, 2015, twelve days prior to trial. The
       amended information did not allege a new charge, and Movant was not prejudiced.

       Furthermore, this Court finds that had this issue been raised on appeal, it would not
       have required reversal, and therefore, Movant has failed to sustain his burden of
       proof on this issue. As stated in Sanfilippo v. State, 143 SW3d 765, 768, (Mo App
       SD 2004), ‘[t]o support a Rule 29.15 motion due to ineffective assistance of
       appellate counsel, strong grounds must exist showing that counsel failed to assert a

                                                    9
       claim of error which would have required reversal had it been asserted and which
       was so obvious from the record that a competent and effective lawyer would have
       recognized it and asserted it.’

       It was well within the discretion of the trial court to permit the State to amend its
       information to conform to the evidence, and that had the issue been raised on
       appeal, it would not have required reversal. Therefore, movant has failed to
       sustain his burden of proof on this issue.

(Bold in original) (References to trial transcript omitted).

       “Appellate counsel ‘need not (and should not) raise every nonfrivolous claim, but rather

may select from among them in order to maximize the likelihood of success on appeal.’” Lopez

v. State, 300 S.W.3d 542, 552 (Mo.App. S.D. 2009) (quoting Smith v. Robbins, 528 U.S. 259,

288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000)). Sours’ post-conviction appellate counsel testified

at the motion hearing. Her credited testimony, and the other credited evidence relevant to the

instant claim, indicate as follows: (1) appellate counsel was an experienced appellate attorney who

reviewed the entire transcript and all relevant portions of the legal file at issue; (2) she had made

notes concerning the possibility of raising a challenge concerning the difference between the

information and the amended information, but eliminated that challenge in favor of other

challenges on appeal that, in her professional judgment, were more likely to achieve success;

(3) appellate counsel was familiar with a challenge of this type because she had raised it before;

and (4) based on her professional expertise and review of all relevant documents, appellate counsel

did not think this claim would succeed, and therefore did not raise it.

       “Where counsel has investigated possible strategies, courts should rarely second-guess

counsel’s actual choices.” Barton v. State, 432 S.W.3d 741, 749 (Mo. banc 2014) (internal

quotation and citation omitted). “Strategic choices made after thorough investigation of law and

facts relevant to plausible options are virtually unchallengable.” Id. (quoting Strickland, 466 U.S.

at 690).

                                                 10
       Sours fails to demonstrate that the motion court clearly erred in rejecting his Rule 29.15

motion on the basis that appellate counsel was ineffective for failing to present an argument in

Sours’ direct appeal that the trial court erred in denying Sours’ “motion to strike the Amended

Information or remand for a new preliminary hearing.” Point II is denied.

       The judgment of the motion court is affirmed.

WILLIAM W. FRANCIS, JR., J. – OPINION AUTHOR

GARY W. LYNCH, P.J. – CONCURS

NANCY STEFFEN RAHMEYER, J. – CONCURS




                                              11
