                          In the Missouri Court of Appeals
                                  Eastern District
                                                 DIVISION TWO


    RALPH H. CATO,                                             )   No. ED106996
                                                               )
            Appellant,                                         )   Appeal from the Circuit Court of
                                                               )   the City of St. Louis
    vs.                                                        )
                                                               )   Honorable Paula P. Bryant
    STATE OF MISSOURI,                                         )
                                                               )
            Respondent.                                        )   Filed: August 13, 2019

                                                     Introduction

           Ralph Cato (Movant) appeals the motion court's judgment denying his Rule 29.15 motion

for post-conviction relief after an evidentiary hearing.1 He contends the motion court clearly

erred in denying his claim of ineffective assistance of counsel because defense counsel failed to

make an offer of proof regarding the victim’s alleged gang membership and marijuana dealing.

We affirm.

                                                     Background

           In November 2014, a jury convicted Movant of murder in the first degree, two counts of

assault in the first degree, and three counts of armed criminal action stemming from a 2013




1
    All rule citations are to Missouri Supreme Court Rules (2016) unless otherwise indicated.
shooting in the City of St. Louis. The evidence viewed in the light most favorable to the

judgment shows the following:2

           In May or June 2013, Movant became reacquainted with his former classmates and

victims, Charles Moorehead (Decedent) and Johnathon Robinson. Mr. Robinson sold marijuana

to Movant. They had a verbal dispute over a marijuana sale. Later, in early July 2013, Movant

saw Robinson and Decedent at a gas station. Movant got into a fist fight with Robinson resulting

in minor injuries. Movant then told Robinson he would get a “chopper,” which Robinson

testified meant a pistol.

           On July 16, 2013, Robinson was at Decedent’s home. Decedent showed Robinson a

photo Movant had posted to Facebook of himself with a gun in his waistband. Robinson took the

photo as a threat. Later in the day, Robinson, Decedent, and Decedent’s cousin Kenyatia Eddy

were sitting on the front porch. A man with a gun, later identified as Movant, came out of the

alley and shot multiple times injuring Robinson and killing Decedent. Eddy escaped the gun fire.

Both Robinson and Eddy identified Movant as the shooter.

           At trial, Decedent’s mother Dana Dodson testified July 16th was her son’s first day off

from his new job as a lifeguard and when she arrived on the scene:

           It looked like he was asleep. And I knew then while they say they was waitin' on
           the ambulance, I knew in my heart that he was gone. I just couldn’t understand
           what brought that on. I mean, I was just talkin’ to him. He never been in no
           trouble. He never had a record. He hadn’t been fingerprinted at all other than a
           Metrolink stop that happened when he was in the ninth grade. He never been in
           trouble. He never been a problem to me or my family.

Defense counsel Matt Waltz believed Dodson’s testimony opened the door to evidence of

Decedent’s character.3 He gave a verbal narrative to the court about evidence that would show

Decedent had a “gang life” tattoo, possessed marijuana that day, and was dealing marijuana at

2
    See McFadden v. State, 553 S.W.3d 289, 296 n.2 (Mo. banc 2018).
3
    A motion in limine precluded evidence about prior bad acts by Decedent.


                                                          2
the time of his death. The court found Dodson’s testimony did not open the door. Decedent’s

character evidence was excluded.

         The jury convicted Movant on all six counts. On January 7, 2015, he was sentenced to

life without parole on Count I, murder in the first degree.4 Movant appealed, claiming the trial

court abused its discretion in overruling objections (1) to a photo of Movant with a gun admitted

into evidence and (2) to the State’s closing argument that Movant sought out the two victims.

This Court affirmed the judgment and sentence on April 20, 2016.

         Movant timely filed his pro se motion for post-conviction relief under Rule 29.15 on July

11, 2016. The motion court appointed counsel for Movant on July 28, 2016. Then 152 days after

counsel was appointed, counsel untimely filed the Amended Motion on December 27, 2016.

         At the evidentiary hearing on March 20, 2018, Waltz testified the defense strategy at trial

was mistaken identification and alibi. He stated a partial defense could have been a disgruntled

gang member or marijuana customer shot Decedent. Dodson testified her son was not in a gang

and did not deal drugs. She also reported she was not on Facebook and did not know what was

on Facebook about her son. The court found Movant’s trial counsel was not ineffective for

failing to make an adequate offer of proof regarding the character of the victim because it did not

prejudice Movant and the evidence was not admissible.5 The motion court entered its findings of

fact and conclusions of law denying the Amended Motion on July 6, 2018. This appeal followed.




4
  Movant also received concurrent terms of imprisonment of thirty years (Count III), twenty years (Counts II, IV,
and VI), and fifteen years (Count V).
5
  The motion court also made the following findings not raised in this appeal: (1) appellate counsel was not
ineffective for failing to appeal the trial court’s denial of cross-examination of the victim’s mother; (2) appellate
counsel was not ineffective for failing to appeal the admission of a Facebook post based on a lack of foundation; and
(3) trial counsel was not ineffective for failing to advise Movant he could enter an Alford plea to second degree
murder.


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                                                  Discussion

    I.       Abandonment Inquiry

         Before reaching the merits, we must address the timeliness of the Amended Motion. See

Watson v. State, 536 S.W.3d 716, 717 (Mo. banc 2018). “If an appeal of the judgment sought to

be vacated, set aside, or corrected is taken, the amended motion or statement in lieu of an

amended motion shall be filed within 60 days of the earlier of the date both a complete transcript

of the trial and sentencing hearing has been filed in the trial court and: (1) Counsel is appointed,

or (2) An entry of appearance is filed by any counsel that is not appointed but enters an

appearance on behalf of movant.” Rule 29.15(g). Here, the mandate was issued on April 20,

2016, and the motion court appointed counsel for Movant on July 28, 2016 and granted a thirty-

day extension to file an amended motion. Due to a conflict of interest, counsel was reappointed

on September 28, 2016, and the motion court granted an additional thirty-day extension.6 The

Amended motion was untimely filed 152 days later on December 27, 2016.

         The filing deadlines for post-conviction relief cannot be waived. Watson, 536 S.W.3d at

717. “The withdrawal and transfer of a post-conviction case from one office of the public

defender to another due to a conflict of interest does not affect the time limits for filing an

amended motion.” Thomas v. State, 513 S.W.3d 370, 371 (Mo. App. E.D. 2016) (remanded for

abandonment inquiry). Because of the untimely filing, an independent inquiry is required to

determine if abandonment occurred. Moore v. State, 458 S.W.3d 822, 825 (Mo. banc 2015).

         The appropriate forum to address abandonment of counsel is the motion court. Id. at 494.

If the motion court finds inattention of counsel resulted in filing the untimely amended motion

and movant is free from responsibility for the untimely filing, the court shall permit the filing. Id.


6
  The applicable version of Rule 29.15(g) only allowed one thirty-day extension, but the Amended Motion was filed
thirty-two days after the unauthorized extension.


                                                       4
“The method of making this inquiry is left to the discretion of the trial court, but a sufficient

record must be made to demonstrate on appeal the motion court's determination on the

abandonment issue is not clearly erroneous.” Lampkin v. State, 560 S.W.3d 67, 71 (Mo. App.

E.D. 2018).

         Here, the motion court made an independent inquiry sua sponte after holding an

evidentiary hearing and reviewing each party’s suggestions in support of or in opposition to the

Amended Motion. In its conclusions of law, the motion court explained the law regarding time

limits for filing and found the reasons for the untimely filing to be the delayed discovery of a

conflict of interest within the Public Defender’s office and a misunderstanding of the strict time

limit. The court concluded the Amended Motion was filed untimely through no fault of the

Movant so it addressed the Amended Motion on the merits. In its findings of fact and

conclusions of law, the motion court made a sufficient record for us to review abandonment. We

find the motion court did not clearly err in finding Movant was abandoned by counsel.

   II.      Standard of Review

         Under Rule 29.15, appellate review of the motion court’s judgment is limited to whether

the findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k). The motion

court’s findings are presumed correct. Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009). The

findings of fact and conclusions of law are clearly erroneous if, after reviewing the entire record,

we have a definite and firm impression a mistake has been made. Davis v. State, 453 S.W.3d

882, 884 (Mo. App. E.D. 2015).

         Under the Strickland standard, Movant must show by a preponderance of the evidence:

(1) his trial counsel failed to exercise the level of skill and diligence that a reasonably competent

counsel would in a similar situation, and (2) he was prejudiced by counsel’s failure. Strickland v.




                                                 5
Washington, 466 U.S. 668, 687 (1984). Both prongs of the Strickland test must be satisfied for

Movant to be entitled to post-conviction relief for ineffective assistance of counsel. Zink, 278

S.W.3d at 175.

   III.      Analysis

          In his sole point on appeal, Movant argues the motion court clearly erred in denying his

claim trial counsel was ineffective for failing to make an offer of proof regarding Decedent’s

alleged gang membership and marijuana dealings. Movant claims had the offer of proof been

made and the evidence been admitted, there is reasonable probability Movant would have been

acquitted. Movant argues in the alternative, had the offer of proof been made and the evidence

was excluded, the case likely would have been reversed on appeal. Respondent argues the

evidence Movant claims defense counsel should have presented in an offer of proof was

inadmissible and that Movant’s alternative argument is not a recognized claim under Rule 29.15.

          For the performance prong of the Strickland test, Movant needs to overcome the strong

presumption his counsel’s conduct was reasonable and effective. Zink, 278 S.W.3d at 176.

Movant must point to "specific acts or omissions of counsel that, in light of all the

circumstances, fell outside the wide range of professional competent assistance." Id. To raise a

successful ineffective assistance of counsel claim based on failure to make an offer of proof,

Movant must prove the evidence would be admissible if the offer of proof had been

made. Barnes v. State, 334 S.W.3d 717, 722 (Mo. App. E.D. 2011).

          At the evidentiary hearing, Waltz testified the defense strategy at trial was alibi and

mistaken identification. Waltz said evidence of Decedent’s “gang-life” tattoo and marijuana

dealings could have supported a partial defense theory that someone else committed the crime.

Evidence of an alternate perpetrator “must tend to prove that the other person committed some




                                                 6
act directly connecting him with the crime.” State v. Nash, 339 S.W.3d 500, 513 (Mo. banc

2011) (quoting State v. Rousan, 961 S.W.2d 831, 848 (Mo. banc 1998)). When the evidence is

only that someone else may have had motive or opportunity to commit the offense, alternate

perpetrator evidence is not admissible. State v. Bowman, 337 S.W.3d 679, 686 (Mo. banc 2011).

“Counsel cannot be deemed ineffective for failing to do that which would have been futile.”

State v. Danback, 886 S.W.2d 204, 209 (Mo. App. E.D. 1994); see also Sidebottom v. State, 781

S.W.2d 791, 799 (Mo. banc 1989) (counsel cannot be ineffective for failing to make a non-

meritorious objection). The vague allegation an unknown disgruntled gang member or unknown

marijuana customer may have committed the crime is not admissible alternative perpetrator

evidence. Therefore, Movant’s counsel was not ineffective because failing to make the offer of

proof would have been futile.

       Even if Movant could prove the performance prong of the Strickland test, he has not

established prejudice from counsel’s failure to make an offer of proof. Movant must show “but

for” the alleged unprofessional error of counsel, the result of the proceeding would have been

different. Strickland, 466 U.S. at 694. At the evidentiary hearing, Dodson stated her son was not

in a gang and did not deal drugs. She had no knowledge what was on Facebook about her son.

Had this cross-examination been allowed at trial, it would not have helped Movant.

       The motion court correctly found it was mere speculation when Movant claimed

Dodson’s testimony portraying her son as a good kid “roused” the jury to convict Movant. The

State’s evidence at trial was the prior disagreement and fist fight between Movant and Robinson;

the Facebook photo of Movant with a gun in his waistband from the same day of the shooting;

and the two eyewitness identifications of Movant. Counsel’s failure to make an offer of proof did

not prejudice Movant.




                                               7
       Movant argues in the alternative, had the offer of proof been made but the evidence

excluded, the case likely would have been reversed on appeal. Movant’s argument is a claim that

counsel was ineffective for failing to preserve an error for review because the offer of proof was

not made. Movant concedes failure to preserve error for appellate review is not a cognizable

claim in a Rule 29.15 motion. Dickerson v. State, 269 S.W.3d 889, 893 n.3 (Mo. banc 2008);

Strong v. State, 263 S.W.3d 636, 646 (Mo. banc 2008); McCoy v. State, 431 S.W.3d 517, 522-23

(Mo. App. E.D. 2014). We agree. Point denied.

                                           Conclusion

       For the reasons stated above, we find the motion court did not clearly err in denying post-

conviction relief. The motion court's judgment is affirmed.




                                             _______________________________
                                             Philip M. Hess, Presiding Judge




Kurt S. Odenwald, J. and
Lisa P. Page, J. concur.




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