                                                       In the
                                  Missouri Court of Appeals
                                              Western District
SHANNON J. ROLLINS,                                         )
                                                            )
                      Appellant,                            )   WD77074
                                                            )
v.                                                          )   OPINION FILED: February 3, 2015
                                                            )
STATE OF MISSOURI,                                          )
                                                            )
                     Respondent.                            )

                    Appeal from the Circuit Court of Jackson County, Missouri
                              The Honorable W. Brent Powell, Judge

     Before Division Three: Victor C. Howard, Presiding Judge, James E. Welsh, Judge and
                                     Gary D. Witt, Judge


          Shannon Rollins ("Rollins") appeals from the denial of his Rule 29.151 motion

 following an evidentiary hearing. In his sole point on appeal, Rollins argues that his

 appellate counsel provided ineffective assistance by failing to raise an open and obvious

 claim of error that a reasonably competent attorney would have raised. Specifically,

 Rollins argues that his appellate counsel failed to raise on direct appeal that Rollins did

 not unequivocally waive his right to counsel. Rollins argues that, but for his counsel's

 ineffectiveness, Rollins's direct appeal would have been granted on this basis and he

          1
              All rule references are to Missouri Supreme Court Rules (2014) unless otherwise noted.
would have received a new trial. Because we agree with the motion court that appellate

counsel appropriately chose not to raise a non-meritorious claim and further that Rollins's

waiver of right to counsel was unequivocal, we affirm.

                                   Factual and Procedural History2

A. Underlying Facts3

         On the evening of October 18, 2008, officers James Hopper and Warner

Stumpenhaus of the Kansas City, Missouri, Police Department were patrolling a high

crime area of the city. They spotted a white Pontiac van and entered its license plate

number into their computer. The computer search revealed two outstanding warrants

associated with the van. As soon as the officers saw the warrants, they activated the

lights of their patrol car to stop the van. The van pulled over, and the driver and

passenger immediately began to exit the vehicle. Out of concern for officer safety, the

officers also immediately exited their vehicle. One officer approached the passenger,

Rollins, while the other contacted the driver, Rollins's brother, Theron. The officers

obtained identifying information from both men and entered the information into the

patrol car's computer, which indicated each had outstanding arrest warrants.

         After Rollins was placed under arrest, the officers searched him and discovered

5.45 grams of crack cocaine in his front right jacket pocket. Rollins admitted possessing

the crack cocaine found in his pocket.

         The State charged Rollins with second degree drug trafficking.

         2
          We view the facts in the light most favorable to the jury's verdict. Cothran v. State, 436 S.W.3d 247, 250,
n.1 (Mo. App. W.D. 2014) (citation omitted).
        3
          Without further attribution, a portion of the statement of facts is taken from this court's unpublished
memorandum. State v. Rollins, 353 S.W.3d 723 (Mo. App. W.D. 2011).

                                                         2
B. Pre-Trial Proceedings

      The issue of Rollins's waiver of his right to counsel first appeared during a case

management hearing on February 16, 2010, before Judge Charles E. Atwell. The court

opened the hearing by noting that Rollins had previously expressed a desire to represent

himself. In addition to the general discussion of the problems of self-representation, the

court also discussed the requirement that Rollins execute a written waiver of counsel

should he choose to proceed pro se.

      At a hearing on February 18, 2010, the court again explained Rollins's right to

represent himself, the statutory requirement of a written waiver of counsel pursuant to

Section 600.051,4 and detailed the risks involved in representing himself. Rollins asked

if he would be provided investigators to seek out witnesses regarding the charges. The

court explained that the state provided those types of services through the public

defender's office, but if Rollins was waiving his right to counsel, he would not be

receiving those services through the public defender's office. Rollins made it clear that

he did not trust the public defender's office and did not want it to represent him. Rollins

asked about receiving appointed "co-counsel," to which the court indicated that he would

not be afforded co-counsel or standby counsel if he were to proceed pro se.

      Rollins asked if he would have full and adequate access to a law library. The

court responded that it would work with Rollins on that issue. Rollins expressed that he

could not make a decision to represent himself without a definite answer regarding access

to the law library. The court took a recess to contact the Jackson County Jail to discuss

      4
          All statutory references are to RSMo 2000 as currently supplemented unless otherwise indicated.

                                                        3
realistic access to the law library. The court eventually entered an order allowing Rollins

twenty hours of access to the law library a week, which Rollins stated was "no problem."

Rollins then signed the written waiver of counsel and acknowledged his signature in open

court. Rollins told the court he had no other issues he wished to discuss and the hearing

was adjourned.

       On March 30, 2010, the court held a hearing on various motions including Rollins

motion requesting standby counsel be appointed. The motion requested that standby

counsel would not be "counsel of record, and will not do anything to interfere with the

defendant’s control of the defense." The court indicated it would probably deny the

motion for standby counsel due to Rollins waiving his right to counsel, to which Rollins

responded, "Okay."

       On June 1, 2010, the court addressed several motions, including another motion

regarding standby counsel and a motion to dismiss on the grounds that Rollins was not

represented by counsel during the indictment. Rollins expressed to the court that he

desired private counsel the entire time but was unable to afford it. The court reiterated to

Rollins that he had been given the opportunity to obtain a public defender when he was

indicted. The court again offered to appoint a public defender immediately to defend

him. Rollins again refused to be represented by a public defender. In response, the court

denied the motions to dismiss and access to standby counsel, stating,

       [Y]ou've had the chance on a number of occasions to be represented by the
       public defender, and you have chosen not to take their representation. So
       you have a right to one or the other; you don't have a right to both. So I'm
       going to deny the request for stand-by counsel.


                                             4
C. Trial Proceedings

       Rollins's jury trial began on June 21, 2010. The court notified Rollins that it

would inform the jury Rollins had been offered counsel but had chosen to exercise his

right to represent himself. Rollins explained to the venire panel he chose to represent

himself to address issues he believed a public defender would not, and stated, "it was my

decision to do that…" Rollins reiterated in his opening statement, "I decided to represent

myself in this case." The State charged Rollins with second degree drug trafficking and

he was convicted of that charge by the jury.

       After the jury returned its finding of guilt, Rollins agreed to have a public defender

appointed to represent him regarding his motion for new trial. The court denied the

motion and sentenced Rollins as a prior and persistent drug offender to ten years'

imprisonment.

D. Postconviction Proceedings

       Rollins was represented by the public defender's office on his direct appeal and we

affirmed his conviction. Rollins, 353 S.W.3d 723.

       Rollins then timely filed a pro se Motion to Vacate, Set Aside, or Correct the

Judgment and Sentence under Rule 29.15 on January 27, 2012. Counsel was appointed

pursuant to Rule 29.15 and she filed an amended motion that claimed Rollins's direct

appeal counsel rendered ineffective assistance of counsel by failing to raise an open and

obvious issue: that he did not unequivocally waive his fundamental right to counsel.

       The motion court held an evidentiary hearing on October 4, 2013. At the hearing,

appellate counsel in Rollins’s direct appeal testified that she did not pursue the issue as a

                                               5
matter of strategy. Specifically, counsel testified that she felt this argument was certain

to lose on appeal and that bringing such a claim would hurt her credibility with the

appellate court. Counsel stated that she reviewed the trial transcript and found the

movant's Sixth Amendment waiver of trial counsel to be clear and voluntary.

       The motion court found appellate counsel’s testimony to be credible and denied

the claim, determining Rollins's waiver to be unequivocal and that counsel's decision not

to raise the issue was a matter of appropriate strategy. The motion court also concluded

that Rollins failed to demonstrate a reasonable probability that his conviction would have

been reversed had the waiver issue been raised, and thus, failed to establish that he was

prejudiced by counsel's actions.

                                   Standard of Review

       Appellate review of a motion court’s 29.15 ruling is limited to a determination of

whether its findings of fact or conclusions of law of the motion court are clearly

erroneous. Rule 29.15(k). The motion court's findings are presumed correct and will

only be overturned if the ruling leaves the appellate court with a definite and firm

impression that a mistake has been made. Johnson v. State, 406 S.W.3d 892, 898 (Mo.

banc 2013) (citations omitted). The judgment should be upheld if the motion court's

findings are sustainable on any grounds. Swallow v. State, 398 S.W.3d 1, 3 (Mo. banc

2013) (citation omitted).




                                            6
                                         Discussion

       The crux of Rollins's appeal is that his appellate counsel was ineffective for failing

to argue in his direct appeal that Rollins did not knowingly and voluntarily waive his

Sixth Amendment right to counsel.

       To prevail on a claim of ineffective appellate counsel, Rollins must establish that:

(1) the counsel failed to exercise the degree of care, skill, and diligence of a reasonably

competent attorney under the circumstances; and (2) the alleged deficiency prejudiced

Rollins. Strickland v. Washington, 466 U.S. 668, 687 (1984). If the performance prong

or the prejudice prong is not met, then we need not consider the other, as the claim of

ineffective assistance of counsel must fail if either prong is not present. Id.

       Rollins "must overcome the presumption that the challenged action was a sound

trial strategy, adequate assistance was rendered, and all significant decisions were the

result of reasonable professional judgment." Mallow v. State, 439 S.W.3d 764, 770 (Mo.

banc 2014). Appellate counsel has the discretion to pick and choose claims to maximize

the likelihood of success on appeal. Sykes v. State, 372 S.W.3d 33, 41 (Mo. App. W.D.

2012) (holding that appellate counsel was not ineffective for refusing to raise issue

preserved for appeal as a matter of strategy). See also Royer v. State, 421 S.W.3d 486,

490 (Mo. App. S.D. 2013).         Strategic decisions made by appellate counsel after a

thorough investigation are virtually unchallengeable. Baumruk v. State, 364 S.W.3d 518,

531 (Mo. banc 2012).

       To establish a claim of ineffective assistance of appellate counsel, a movant must

establish that strong grounds "exist showing that [appellate] counsel failed to assert a

                                              7
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." Richardson v. State, 386 S.W.3d 803, 806 (Mo. App. S.D. 2012)

(internal citations and quotation marks omitted).

       During the evidentiary hearing on the motion, appellate counsel testified that, after

reviewing the record in its entirety, she did not raise the issue of Rollins waiver of

counsel because she thought it was "certain to fail," and, therefore, did not raise it as a

matter of strategy. Specifically, counsel testified that "the record was clear that Mr.

Rollins wanted to proceed pro se and that his waiver was knowing and voluntary."

Because of this, appellate counsel felt raising this issue on appeal would result in her

losing credibility with the appellate court. Rollins offered no evidence to the contrary.

For these reasons, we find no clear error in our review of the motion court's ruling.

       Additionally, Sixth Amendment jurisprudence and a thorough review of the record

support appellate counsel's decision not to raise the waiver of counsel issue. Rollins's

waiver is valid if his "invocation of the right [was] made unequivocally and in a timely

manner, and the corresponding waiver of counsel [was] knowing and intelligent." State

v. Black, 223 S.W.3d 149, 153 (Mo. banc 2007). Rollins does not dispute that his waiver

was made timely, knowingly, and intelligently. Rollins's only argument is that his waiver

was not unequivocal.

       Rollins contends that his inquiries regarding investigators, access to a law library,

and standby counsel before he signed his waiver of counsel show that his waiver was

equivocal. Furthermore, Rollins argues his continued motions for standby counsel during

                                             8
pre-trial conferences and references to standby counsel during voir dire establish that it

was obvious from the record that Rollins's waiver of counsel was not unequivocal, and

therefore, appellate counsel was deficient for not raising the open and obvious issue on

direct appeal. We disagree.

       "[W]hen an accused manages his own defense, he relinquishes, as a purely factual

matter, many of the traditional benefits associated with the right to counsel." Wilkins v.

State, 308 S.W.3d 778, 783 (Mo. App. S.D. 2010) (citation omitted). Thus, "a defendant

who elects to represent himself cannot thereafter complain that the quality of his own

defense amounted to a denial of 'effective assistance of counsel.'" Wilkins, 308 S.W.3d at

783.

       Rollins made it clear throughout the proceedings that he refused to be represented

by a public defender. While a criminal defendant enjoys "a constitutional right to legal

counsel, he does not have an absolute right to be represented by counsel of his own

choosing."   State v. Briggs, 318 S.W.3d 203, 206 (Mo. App. W.D. 2010) (citation

omitted). "The right to be represented by counsel of one's own choosing is qualified by

the public's right to the effective and efficient administration of justice." State v. Rice,

249 S.W.3d 245, 251 (Mo. App. E.D. 2008) (citation omitted).

       A defendant has the right to "proceed without counsel when he voluntarily and

intelligently elects to do so." Marshall v. Rodgers, 133 S. Ct. 1446, 1449 (2013) (citing

Faretta v. Cal., 422 U.S. 806, 807 (1975)). Prior to trial, the court must alert the

defendant of the perils of self-representation. Faretta, 422 U.S. at 835. The Missouri

Supreme Court has declared it judicious for a trial court to not "proceed from one step to

                                             9
the next until all questions were resolved in so far as possible" during a Faretta hearing.

Wilkins v. State, 802 S.W.2d 491, 501 (Mo. banc 1991). Faretta hearings are designed so

that the defendant is "made aware of the dangers and disadvantages of self-

representation, so that the record will establish that 'he knows what he is doing and his

choice is made with eyes open.'" Faretta, 422 U.S. at 835 (citation omitted). Rollins's

inquiries do not establish his waiver was equivocal, rather, the inquiries establish that the

trial court held a proper Faretta hearing. Moreover, all of these inquiries came before

Rollins voluntarily executed a written waiver of counsel, which is used to provide

"objective assurance" that the accused intended to waive his right to counsel. May v.

State, 718 S.W.2d 495, 497 (Mo. banc 1986); § 600.051.

       Further, the record shows that Rollins's waiver was unequivocal despite his

continued motions for standby counsel and attempts to alert the venire panel of that

during voir dire. Rollins's motions explicitly demanded that standby counsel would not

be "counsel of record, and will not do anything to interfere with the defendant's control of

the defense." Rollins's desire for assistance after a valid waiver of counsel does not later

render that waiver invalid. See State v. Garth, 352 S.W.3d 644, 651 (Mo. App. E.D.

2011) (holding that the trial court had the authority to deny a defendant counsel after the

State rested its case and after the defendant had previously waived his right to counsel).

Here, the trial court repeatedly offered to appoint the public defender to represent Rollins,

an offer which was repeatedly rejected by Rollins. Rollins's own conduct during voir

dire indicates that his waiver of counsel was, in fact, unequivocal.



                                             10
       Even if this issue had been properly raised and presented on direct appeal, the

issue is without merit. Appellate counsel cannot be deemed ineffective for failing to raise

a non-meritorious claim on appeal. Glover v. State, 225 S.W.3d 425, 429 (Mo. banc

2007) (citation omitted).

                                       Conclusion

       The motion court did not err in denying Rollins's Rule 29.15 motion for post-

conviction relief due to ineffective assistance of counsel. The judgment of the motion

court is affirmed.




                                          __________________________________
                                          Gary D. Witt, Judge

All concur




                                            11
