               SUPREME COURT OF MISSOURI
                                           en banc
DONNIE WAYNE HOUNIHAN,                            )          Opinion issued October 15, 2019
                                                  )
                 Appellant,                       )
                                                  )
v.                                                )          No. SC97622
                                                  )
STATE OF MISSOURI,                                )
                                                  )
                 Respondent.                      )


          APPEAL FROM THE CIRCUIT COURT OF PEMISCOT COUNTY
                    The Honorable W. Keith Currie, Judge

         Donnie Hounihan appeals the motion court’s judgment overruling his Rule 29.15

motion for postconviction relief. Hounihan was convicted of driving while intoxicated

under sections 577.010 and 577.023 and driving while revoked under section 302.321. 1

In his Rule 29.15 motion, Hounihan argued his trial counsel was ineffective for failing to

call his physician to testify that medications he took for his illnesses made him appear

intoxicated by alcohol on the night he was arrested. Because there is not a reasonable

probability the trial court’s finding would have been different had the physician testified




1
    All statutory references are to RSMo Supp. 2012 unless otherwise specified.
at Hounihan’s trial, the motion court did not err in denying Hounihan’s Rule 29.15 claim

for postconviction relief relating to his driving while intoxicated conviction.

       Hounihan further asserted his appellate counsel was ineffective for failing to argue

there was insufficient evidence to enhance his driving while revoked misdemeanor to a

felony pursuant to section 302.321.2 because the evidence did not establish (1) he was

represented by counsel or filed a written waiver of counsel before his prior municipal

court conviction and (2) whether he had served more than 10 days on either of the prior

convictions for driving while revoked. Because appellate counsel’s failure to raise the

sufficiency of evidence claim constituted deficient performance by which Hounihan was

prejudiced, the motion court erred in denying Hounihan’s Rule 29.15 claim for

postconviction relief for the driving while revoked conviction.

                                       Background

       Hounihan was charged with the class B felony of driving while intoxicated under

sections 577.010 and 577.023 and the class D felony of driving while revoked under

section 302.321. Evidence adduced at trial demonstrated that, in September 2014, a

patrolman observed Hounihan driving a vehicle that crossed the center line at least three

times. The patrolman stopped the vehicle and observed that Hounihan had cigarette

ashes in his lap and smelled of alcohol. The patrolman asked for Hounihan’s driver’s

license and insurance. Hounihan replied that he had neither and that he believed his

driver’s license was revoked. The patrolman then instructed Hounihan to step outside

his vehicle and walk to the patrol vehicle. Hounihan swayed as he walked. Inside the

patrol vehicle, the patrolman observed Hounihan’s eyes were bloodshot, watery, and

                                              2
glassy. Hounihan admitted he had consumed several beers and a pint of whiskey before

driving.

       The patrolman placed Hounihan under arrest and took him to a hospital for a blood

sample, which showed a blood alcohol content level of 0.15. During questioning at the

hospital, Hounihan again admitted he drank beer and whiskey within three hours of being

stopped. He further stated he took hydrocodone, Klonopin, and other prescription drugs.

       Hounihan testified regarding his many mental and physical illnesses, including

chronic obstructive pulmonary disease, asthma, black mold poisoning, memory loss, and

bulging spinal disks. He stated his medications had made his eyes watery and red on the

day the patrolman stopped him.

       The trial court found Hounihan guilty as charged and sentenced him to seven

years’ imprisonment for driving while intoxicated and four years’ imprisonment for

driving while revoked, to run concurrently. Hounihan’s convictions were affirmed on

direct appeal. In his amended Rule 29.15 motion for postconviction relief, Hounihan

argued trial counsel was ineffective for failing to call his physician to testify that the

medications he took for his illnesses made him appear intoxicated by alcohol on the night

he was arrested. He further asserted appellate counsel was ineffective for failing to argue

there was insufficient evidence to enhance his driving while revoked misdemeanor to a

felony pursuant to section 302.321.2. Hounihan claimed the State failed to present

evidence establishing (1) Hounihan was represented by counsel or filed a written waiver

of counsel before a prior municipal court conviction and (2) he had served more than 10



                                               3
days on either of the prior convictions for driving while revoked, as required under

section 302.321.2, to enhance the misdemeanor to a felony.

          At the evidentiary hearing, trial counsel testified she was aware prior to trial that

Hounihan wanted his physician to testify. She stated she wrote a letter to Hounihan

advising she would not ask his doctor to testify “[d]ue to the high amount of unpaid

fees.” She admitted she had not contacted the physician and, accordingly, was unware

whether he charged a fee. Trial counsel further stated she did not believe the physician’s

testimony would have aided Hounihan’s defense because there was substantial evidence

of his intoxication. The physician testified Hounihan had a number of physical

conditions affecting his balance and gait. He stated he did not charge a fee to testify and,

if called at Hounihan’s trial, he would have testified similarly.

          In an affidavit, appellate counsel conceded he should have argued on direct appeal

that there was insufficient evidence to convict Hounihan of the felony of driving while

revoked under section 302.321. He stated that he failed to raise the claim “under a

mistaken understanding of the quantum of proof necessary” for the trial court to enhance

Hounihan’s driving while revoked misdemeanor to a felony and that he had “no strategic

or other legal reason” for failing to raise the issue.

          The motion court overruled Hounihan’s motion for post-conviction relief.

Hounihan appeals. 2




2
    After an opinion by the court of appeals, this Court granted transfer. Mo. Const. art. V, sec. 10.
                                                   4
                                    Standard of Review

       A motion court’s judgment denying postconviction relief will be affirmed unless

its findings and conclusions are clearly erroneous. Rule 29.15(k); Meiners v. State, 540

S.W.3d 832, 836 (Mo. banc 2018). Findings and conclusions are clearly erroneous only

when “this Court is left with a definite and firm impression that a mistake has been

made.” Mallow v. State, 439 S.W.3d 764, 768 (Mo. banc 2014).

                                          Analysis

       Hounihan raises two claims of ineffective assistance of counsel. First, he claims

trial counsel was ineffective for failing to call his physician to testify that medications he

took for his illnesses made him appear intoxicated by alcohol on the night of his arrest.

Second, Hounihan asserts his appellate counsel was ineffective for failing to argue there

was insufficient evidence to enhance his driving while revoked misdemeanor to a felony

under section 302.321.2.

       To obtain postconviction relief under Rule 29.15, the movant must satisfy the two-

prong Strickland standard. Anderson v. State, 564 S.W.3d 592, 600 (Mo. banc 2018)

(citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). A movant must first

demonstrate that counsel’s performance was deficient. Id. An attorney’s performance is

deficient when it fails to rise to the level of skill that would be exercised by a reasonably

competent attorney under similar circumstances. Id. When alleging ineffective

assistance of appellate counsel, the error on appeal must have been “so obvious that a

competent and effective lawyer would have recognized and asserted it.” Id. at 617

(quoting Williams v. State, 168 S.W.3d 433, 444 (Mo. banc 2005)).

                                              5
       A movant must also prove that counsel’s deficient performance prejudiced his

defense. Id. at 601. Prejudice transpires when “there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. (quoting Deck v. State, 68 S.W.3d 418, 429 (Mo. banc 2002)). A

reasonable probability “is a probability sufficient to undermine confidence in the

outcome.” Tisius v. State, 519 S.W.3d 413, 420 (Mo. banc 2017).

                         I. Driving While Intoxicated Conviction

       Hounihan argues trial counsel was ineffective for failing to call his physician to

testify. According to Hounihan, had the trial court heard the physician’s testimony

regarding Hounihan’s various diagnoses and the side effects of his medications, there is a

reasonable probability the trial court would not have found him guilty of driving while

intoxicated. The motion court denied this claim, finding Hounihan was not prejudiced by

trial counsel’s failure to contact the physician or to call him as a witness.

       At the evidentiary hearing, the physician testified that Hounihan had a number of

medical conditions that affected his ability to walk and that he prescribed Hounihan

multiple medications to treat those conditions. He stated he would have testified

similarly had he been called as a witness at Hounihan’s trial.

       To prove the failure to call a witness prejudiced the movant, it must be shown that

“the witness’s testimony would have produced a viable defense.” Johnson v. State, 388

S.W.3d 159, 166 (Mo. banc 2012). Hounihan twice admitted to the patrolman that he

consumed alcohol prior to driving – once after being stopped by the patrolman and again

in the hospital while being interrogated. In particular, Hounihan stated, shortly after

                                              6
being stopped by the patrolman, he had consumed a pint of whiskey and several beers

before driving. Hounihan’s blood alcohol content level was 0.15, and the patrolman

testified Hounihan smelled of alcohol and had watery and glassy eyes. Further, at the

evidentiary hearing, the physician admitted on cross-examination that none of the

medications he prescribed Hounihan had a side effect of causing a smell of alcohol. The

motion court determined there was considerable evidence of Hounihan’s guilt that would

not have been refuted by the physician’s testimony.

       The motion court did not clearly err in finding the physician’s testimony would

not have produced a viable defense for Hounihan’s driving while intoxicated conviction.

Because there is not a reasonable probability that the outcome of the trial would have

been different had Hounihan’s physician testified, the motion court did not err in

overruling Hounihan’s Rule 29.15 motion for postconviction relief for his driving while

intoxicated conviction. 3

                            II. Driving While Revoked Conviction

       Hounihan argues appellate counsel was ineffective for failing to argue there was

insufficient evidence to enhance his driving while revoked conviction from a

misdemeanor to a class D felony pursuant to section 302.321.2. The motion court denied

the claim, finding appellate counsel’s error was not so obvious from the record that a

competent lawyer would have recognized and asserted it.


3
  A movant must satisfy both prongs of the Strickland standard to obtain postconviction relief as
a result of ineffective assistance of counsel. Anderson, 564 S.W.3d at 600. Because the
prejudice prong is not satisfied here, this Court need not evaluate counsel’s performance. State
v. Taylor, 929 S.W.2d 209, 224-25 (Mo. banc 1996).
                                                7
       A person convicted of driving while revoked is guilty of a misdemeanor pursuant

to section 302.321.2. That misdemeanor is enhanced to a class D felony when:

       [A]ny person with a prior alcohol-related enforcement contact as defined in
       section 302.525, convicted a third or subsequent time of driving while
       revoked or a county or municipal ordinance of driving while suspended or
       revoked where the defendant was represented by or waived the right to an
       attorney in writing, and where the prior two driving-while-revoked offenses
       occurred within ten years of the date of occurrence of the present offense and
       where the person received and served a sentence of ten days or more on such
       previous offenses . . . .

Section 302.321.2. Accordingly, to enhance a driving while revoked misdemeanor to a

class D felony, the State must prove beyond a reasonable doubt that the defendant (1) had

a prior alcohol-related enforcement contact pursuant to section 302.525, (2) had at least

two prior driving while revoked convictions within the past 10 years of the date of the

occurrence of the offense at issue, (3) was represented by or waived the right to an

attorney in writing for prior county or municipal driving while revoked convictions, and

(4) received and served a sentence of 10 days or more on the previous offenses. Id.; see

also Moore v. State, 318 S.W.3d 726, 734 (Mo. App. 2010) (interpreting section

302.321.2 to require the State to prove the defendant was represented by or waived the

right to an attorney for violations of county or municipal ordinances and not for other

driving while revoked offenses).

       To enhance Hounihan’s driving while revoked misdemeanor to a class D felony,

the State alleged in its amended information:

       On or about February 4, 2013, the defendant was convicted of driving while
       revoked in the Circuit Court of Pemiscot County for events occurring January
       4, 2013, and


                                             8
       On or about January 13, 2005, defendant was convicted of driving while
       revoked in Hayti Municipal Court and defendant was represented by an
       attorney or waived counsel in writing, for events occurring on December 29,
       2004, and

       On or about December 7, 2010, defendant was convicted of driving while
       intoxicated in the circuit Court of Pemiscot County [], for events that
       occurred May 21, 2010, and served a sentence of more than ten days for said
       conviction.

At trial, the State offered a copy of Hounihan’s Missouri driver’s record. That document

listed offenses corresponding to those the State pleaded in its amended information. The

document established Hounihan had a prior alcohol-related enforcement contact and at

least two prior driving while revoked convictions within 10 years of his most recent

offense. Importantly, though, the document did not contain any evidence regarding

whether Hounihan had counsel or filed a written waiver of counsel before his municipal

court conviction nor did it specify whether he had served more than 10 days for either of

the prior driving while revoked convictions.

       Despite the State failing to present sufficient evidence under section 302.321.2 to

support enhancement of the misdemeanor to a felony, the trial court convicted Hounihan

of the class D felony of driving while revoked, and appellate counsel did not raise a

sufficiency of evidence claim on appeal. Hounihan argues appellate counsel’s failure to

raise the sufficiency of evidence claim was an error so obvious that competent counsel

would have recognized and asserted the claim. He further asserts that if the claim had

been raised, it would have changed the appeal’s outcome.

       The motion court found appellate counsel did not recognize the sufficiency of

evidence claim but implied appellate counsel’s failure to raise the claim was reasonable

                                               9
because the issue was overlooked by the trial court, the prosecuting attorney, and trial

counsel. But appellate counsel’s failure to recognize and raise this issue on appeal is not

reasonable merely because the issue was overlooked by others at trial. “[F]ailure to raise

a claim that has significant merit raises an inference that counsel performed beneath

professional standards.” State v. Sumlin, 820 S.W.2d 487, 490 (Mo. banc 1991). Under

these circumstances, a reasonably competent attorney should have reviewed both the

relevant law and the record and recognized this meritorious claim. Indeed, this claim is

ascertainable after review of one statute – the statute that defines the crime of driving

while revoked – and one exhibit – the sole evidence concerning Hounihan’s prior driving

while revoked convictions.

       The State argues it was reasonable for appellate counsel not to raise the

sufficiency of evidence claim to better focus on the issues he chose to raise. But

reasonable counsel would not have chosen to forgo the meritorious sufficiency of

evidence claim to focus on other claims. Appellate counsel’s brief was only 37 pages

long, containing 7,534 words – well below the 31,000 word maximum pursuant to Rule

84.06. Accordingly, appellate counsel’s failure to raise the sufficiency of evidence claim

constituted deficient performance.

       To warrant relief, Hounihan must have been prejudiced by appellate counsel’s

failure to bring the sufficiency of evidence claim. Pursuant to the due process clause, the

State is required to prove every element of a criminal offense beyond a reasonable doubt.

State v. Seeler, 316 S.W.3d 920, 925 (Mo. banc 2010). Failure to do so requires reversal

of the judgment. State v. Stover, 388 S.W.3d 138, 155 (Mo. banc 2012). It is not

                                             10
disputed that the State failed to present sufficient evidence to enhance the misdemeanor

to a class D felony. Had appellate counsel raised the sufficiency of evidence claim, the

driving while revoked conviction likely would have been vacated, and the case would

have been remanded for resentencing. Because there is a reasonable probability that the

outcome on appeal would have been different, Hounihan was prejudiced by appellate

counsel’s failure to bring the sufficiency of evidence claim. The motion court erred in

overruling Hounihan’s Rule 29.15 motion for postconviction relief for the driving while

revoked conviction.




                                            11
                                       Conclusion

       Because there was not a reasonable probability the trial court’s finding would have

been different had Hounihan’s physician testified, the motion court did not err in

overruling Hounihan’s Rule 29.15 motion for postconviction relief for the driving while

intoxicated conviction. Appellate counsel’s failure to raise the sufficiency of evidence

claim constituted deficient performance that prejudiced Hounihan. As a result, the

motion court erred in overruling Hounihan’s Rule 29.15 motion for postconviction relief

on his driving while revoked conviction. The motion court’s judgment is reversed to the

extent it overruled Hounihan’s motion for postconviction relief on his driving while

revoked conviction, and the case is remanded for resentencing as a misdemeanor on that

charge. In all other aspects, the judgment is affirmed.




                                                 ______________________________
                                                 Mary R. Russell, Judge


All concur.




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