                IN THE MISSOURI COURT OF APPEALS
                        WESTERN DISTRICT

 JASON L. BERRY,                                          )
                                                          )
                                          Appellant,      )
                                                                WD82440
 v.                                                       )
                                                          )
                                                                OPINION FILED:
                                                          )
                                                                March 31, 2020
 STATE OF MISSOURI,                                       )
                                                          )
                                       Respondent.        )


                    Appeal from the Circuit Court of Jackson County, Missouri
                             The Honorable Kevin D. Harrell, Judge

                    Before Division Four: Karen King Mitchell, Chief Judge, and
                           Gary D. Witt and Edward R. Ardini, Jr., Judges

       Jason Berry appeals, following an evidentiary hearing, the denial of his amended

Rule 29.151 motion for post-conviction relief. In his sole point on appeal, Berry argues that the

hearing court erred in denying his motion because he received ineffective assistance of counsel in

that he was dissatisfied with his assigned public defender and was unable to have his case assigned

to a different public defender. Finding no error, we affirm.




       1
           All Rule references are to the Missouri Supreme Court Rules (2016) unless otherwise noted.
                                                 Background2

        On the morning of May 23, 2014, Victim heard someone fiddling with the lock on the

screen door of her home. She went to the door and asked the person what he wanted. The man,

whom Victim later identified as Berry, opened the door and entered the house. Victim again asked

Berry what he wanted, and he told her, “I’ll show you what I want.” Berry started pulling at

Victim’s clothing. She tried pushing him and kicking him, but Berry pushed Victim onto the couch

on her back and started taking off her pants and underwear. Berry then penetrated Victim’s vagina

with his penis, touched her breast with his mouth, and choked her with his hands. Berry told

Victim to lick his penis, and when she moved her head out of the way, he started choking her,

causing her to faint.

        When Victim regained consciousness, Berry was gone. She called the police and reported

that a man had forced his way into her home and raped her. She described the man as a black male

with collar-length hair and facial hair, who referred to himself as “Jason.” Victim told police that

Berry forced his way into her living room, pushed her in, pulled off her clothes, made her insert

his penis into her mouth, kissed and sucked on her breasts, choked her, and inserted his penis into

her vagina.

        The police observed that the screen door to Victim’s home was slit and the exterior handle

appeared to be pulled away from the door frame. Berry’s fingerprints were recovered from the

exterior and interior sides of the storm door. Victim’s living room was in disarray. A pair of

women’s underwear was on the floor near the couch, and there was a large stain on one of the

couch cushions.




        2
           The facts of Berry’s underlying offenses here presented are taken from the decision issued in his direct
appeal, State v. Berry, 506 S.W.3d 357, 360-61 (Mo. App. W.D. 2016), without further attribution.


                                                        2
         Victim was taken to the hospital, where an examination revealed that she had petechiae

markings on the right and left sides of her neck.3 While Victim was at the hospital, a detective

presented her with a photographic lineup, from which she identified Berry as her assailant.

         At the time of the offense, Berry was living with his girlfriend and their children in a house

about 200 feet from Victim’s home. On the morning of the offense, when Berry’s girlfriend left

to take their child to school at 8:00 a.m., Berry was home asleep. When his girlfriend returned

home at 9:25 a.m., Berry was gone, and the back door was unlocked, which was unusual because

his girlfriend kept the doors locked. Berry returned home about 9:45 a.m. As part of their

neighborhood canvas, the police interviewed Berry who claimed that he had not left the house all

day.

         Berry’s DNA was found in samples taken from Victim’s right breast and vagina. The State

charged Berry by indictment with one count each of first-degree burglary, first-degree rape,

first-degree sodomy, and first-degree sexual abuse. The State subsequently filed an information

in lieu of indictment, charging Berry as a prior and persistent offender. While Berry was in jail

awaiting trial, he called his girlfriend and told her that he needed her to testify that he was with her

when she took their child to school the morning of the assault.

         Berry testified at trial in his own defense and claimed that he did not rape, sodomize, or

sexually abuse Victim. He stated that he was in Victim’s house in 2012 but not on the day she

was assaulted.

         The jury found Berry guilty, and the trial court, having previously found Berry to be a prior

and persistent offender, sentenced him to thirty years’ imprisonment on the burglary count, seventy

years’ imprisonment on the rape count, and fifteen years’ imprisonment on the sexual abuse count,


         3
           At Berry’s trial, a forensic nurse examiner testified that petechiae are tiny blood dots under the skin caused
by blunt force trauma.


                                                           3
to be served consecutively.4 On direct appeal, this court affirmed Berry’s convictions and

sentences, with the exception of his sentence for first-degree sexual abuse.5 State v. Berry, 506

S.W.3d 357 (Mo. App. W.D. 2016). We issued our mandate on February 1, 2017.

         Berry timely filed his pro se Rule 29.15 motion, and appointed counsel filed a timely

amended motion.

         The motion court held an evidentiary hearing, which included testimony by Berry and trial

counsel, among others. On direct examination, Berry testified that trial counsel did not show

interest in Berry’s case or demonstrate any “fight.” Trial counsel referred to Berry by the wrong

name and discussed a different case with him and, as a result, Berry did not trust trial counsel. At

Berry’s request, trial counsel moved to withdraw6 and Berry filed his own motion for reassignment

of counsel;7 both motions were denied. On cross-examination, Berry testified that trial counsel

met with him eight times, explained the evidence against him, relayed plea offers to him, and

advised him of the benefits of pleading versus the risks of going to trial. Berry also testified

regarding “a lot” of motions he had wanted trial counsel to file, but Berry could not recall the

nature of those motions.




         4
            The jury found Berry not guilty of sodomy.
         5
            At the conclusion of Berry’s sentencing hearing, the court orally pronounced a thirty-year sentence on the
sexual abuse count, but the court’s written judgment issued later the same day reflected a fifteen-year term of
imprisonment for that count. State v. Berry, 506 S.W.3d 357, 364 (Mo. App. W.D. 2016). The State moved to correct
the sentence nunc pro tunc because the thirty-year sentence orally pronounced by the court exceeded the maximum
term of fifteen years allowed by law, and the court entered a nunc pro tunc order granting the State’s motion. Id. This
court concluded that the imposition of a new sentence nunc pro tunc violated Berry’s due process rights because he
was not personally present for resentencing, and thus, there was clear, obvious error affecting his substantive rights.
Id. at 365. Accordingly, we vacated his sentence for first-degree sexual abuse and remanded for resentencing on that
count consistent with our ruling. Id. Berry was subsequently resentenced to fifteen years’ imprisonment on the sexual
abuse count.
          6
            Trial counsel moved to withdraw following a meeting with Berry, during which Berry told counsel he was
fired and asked counsel to file the appropriate paperwork with the court. Trial counsel told Berry that he would have
to hire counsel or represent himself; another public defender would not be assigned to the case.
          7
            Berry’s motion alleged that he and trial counsel both believed that they had an irreconcilable personality
conflict and a difference of opinion as to how Berry’s case should be litigated.


                                                          4
       Trial counsel testified that he met regularly with Berry and felt their communication was

good. Trial counsel was not aware of any breakdown in communication with Berry “other than

[Berry] did not enjoy hearing what the evidence in the case was.” Trial counsel was not aware of

any other complaints by Berry. Trial counsel felt comfortable advising Berry about the evidence

against him and his options regarding pleading or proceeding to trial.

       On November 26, 2018, the motion court issued findings of fact and conclusions of law

denying Berry’s amended Rule 29.15 motion. The motion court concluded that Berry failed to

demonstrate “any conflict of interest, irreconcilable conflict, or complete breakdown in

communication” with trial counsel. The court found, “at best, [Berry] established a personality

conflict” with trial counsel and “such a personality conflict does not entitle one to a new public

defender; not only does the law not require such a remedy, but . . . the administrative burdens of

such a rule would be immense.”

       Berry appeals.

                                       Standard of Review

       We “review[] the denial of [a motion for] post-conviction relief to determine whether the

motion court’s findings of fact and conclusions of law are clearly erroneous.” Watson v. State,

520 S.W.3d 423, 428 (Mo. banc 2017). “A motion court’s findings and conclusions are clearly

erroneous only if . . . , after reviewing the entire record, [we are] left with the definite and firm

impression that a mistake has been made.” McKay v. State, 520 S.W.3d 782, 785 (Mo. banc 2017).

“The motion court’s findings are presumed correct.” Mallow v. State, 439 S.W.3d 764, 768 (Mo.

banc 2014). “At a post-conviction relief evidentiary hearing, the motion court determines the

credibility of witnesses and is free to believe or disbelieve the testimony of any witness, including

that of the [m]ovant.” Pendleton v. State, 570 S.W.3d 658, 661 (Mo. App. W.D. 2019) (quoting




                                                 5
Heller v. State, 554 S.W.3d 464, 468 (Mo. App. W.D. 2018)). As the movant, Berry bears the

burden of proving his claim for relief by a preponderance of the evidence. Rule 29.15(i).

                                              Analysis

       “To be entitled to post-conviction relief for ineffective assistance of counsel, a movant

must show by a preponderance of the evidence that his or her trial counsel failed to meet the

Strickland test.” Watson, 520 S.W.3d at 435 (citing Strickland v. Washington, 466 U.S. 668

(1984)). “Under Strickland, [a movant] must demonstrate: (1) his trial counsel failed to exercise

the level of skill and diligence that a reasonably competent trial counsel would in a similar

situation, and (2) [movant] was prejudiced by that failure.” Id. We presume that counsel both

rendered adequate assistance and exercised reasonable professional judgment and that any

challenged action was based upon sound trial strategy. Barton v. State, 432 S.W.3d 741, 749 (Mo.

banc 2014). The moving party must present evidence to rebut and overcome that presumption.

State v. Tokar, 918 S.W.2d 753, 768 (Mo. banc 1996). “To demonstrate prejudice [caused by

counsel’s ineffective assistance], a movant must show that, but for counsel’s poor performance,

there is a reasonable probability that the outcome of the [trial] would have been different.” Barton,

432 S.W.3d at 749 (quoting Johnson v. State, 333 S.W.3d 459, 463 (Mo. banc 2011)). “If either

the performance prong or the prejudice prong is not met, then [the court] need not consider the

other,” and the movant’s claim must fail. Neal v. State, 379 S.W.3d 209, 216 (Mo. App. W.D.

2012) (citing Strickland, 466 U.S. at 687).

       In his sole point on appeal, Berry argues that the hearing court erred in denying his

amended Rule 29.15 motion because the Public Defender, knowing that Berry was dissatisfied

with counsel, failed to mediate or assign a different attorney, thus requiring Berry to proceed to

trial with counsel with whom he was dissatisfied. While Berry’s point relied on frames the issue




                                                 6
in terms of failures by the Public Defender’s office, to claim ineffective assistance of counsel,

Berry must show that trial counsel’s performance fell below an objective standard of

reasonableness and Berry was thereby prejudiced. “Irrespective of whether there were problems

with the public defender system, in order to claim ineffective assistance of counsel, [movant] must

show that his trial counsel provided deficient performance and that it was prejudicial.” Prince v.

State, 390 S.W.3d 225, 236 (Mo. App. W.D. 2013) (quoting Johnson v. State, 693 N.E.2d 941,

953 (Ind. 1998)). Thus, we focus on Berry’s claim that he was dissatisfied with trial counsel.

         Berry claims he was dissatisfied because (1) trial counsel did not demonstrate sufficient

attention to or interest in Berry’s defense, causing Berry to lose faith in trial counsel; (2) the two

had a personality conflict; (3) the two disagreed regarding how Berry’s case should be litigated;

and (4) trial counsel refused to file unspecified motions that Berry wanted to pursue.8

         “Although 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. Cobbins, 445

S.W.3d 654, 658 (Mo. App. E.D. 2014) (quoting State v. Briggs, 318 S.W.3d 203, 206 (Mo. App.

W.D. 2010)). “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.” Id. at 659 (quoting State v.

Rice, 249 S.W.3d 245, 251 (Mo. App. E.D. 2008)). “To warrant substitution of appointed counsel,

a defendant must demonstrate justifiable dissatisfaction with counsel.” Johnson v. State, 510

S.W.3d 881, 884 (Mo. App. E.D. 2017). “Mere dissatisfaction with counsel is not enough; a

defendant’s dissatisfaction must be justifiable before the Sixth Amendment requires the

appointment of substitute counsel.” Id. “Examples of justifiable dissatisfaction include a conflict


         8
          Neither Berry nor trial counsel recalled the nature of the motions, but trial counsel testified that, while he
occasionally files a motion suggested by a client, he typically does not find such motions worthy of filing. As the
movant, Berry must prove his claim by a preponderance of the evidence. Rule 29.15(i). Berry fails to meet that
burden where he cannot even recall the nature of the motions he wanted trial counsel to file.


                                                           7
of interest, an irreconcilable conflict, or a complete breakdown in communication between the

attorney and the defendant[; d]isagreement about trial strategy or a general dissatisfaction with the

amount of time a defendant is able to spend with counsel is insufficient to establish a total

breakdown in communication.” Id. “Whether counsel should be permitted to withdraw rests

within the sound discretion of the trial court.” Id.

        In Johnson, the movant argued that he wanted counsel to withdraw before trial because

they had an argument about whether counsel had time to watch videotape evidence with movant.

Id. Movant testified that counsel said she did not have time to review the video with him, causing

him to lose faith in her. Id. The court held that movant failed to demonstrate justifiable

dissatisfaction with counsel where the record showed that, after the alleged irreconcilable conflict

arose, movant and counsel continued to communicate and counsel continued to represent movant

through trial and sentencing. Id. at 885. The court concluded that movant failed to show counsel

was ineffective in continuing to represent movant and not moving to withdraw as his attorney, and

movant likewise failed to show how he was prejudiced by counsel’s failure to move to withdraw.

Id. at 884.

        Likewise, in the present case, Berry failed to demonstrate justifiable dissatisfaction with

trial counsel. Berry offered no evidence of an actual conflict of interest. Instead, he argued that

there was an irreconcilable conflict and a complete breakdown in communication, but the evidence

indicates otherwise. Berry testified that trial counsel met with him eight times, explained the

evidence against him, relayed plea offers to him, and advised him of the benefits of pleading versus

the risks of going to trial. Trial counsel testified that he met regularly with Berry and felt their

communication was good. Trial counsel was not aware of any breakdown in communication with

Berry “other than [Berry] did not enjoy hearing what the evidence in the case was.” Trial counsel




                                                  8
testified that he felt comfortable advising Berry about the evidence against him and his options

regarding pleading or proceeding to trial. The motion court found trial counsel’s testimony

credible and the court was free to do so. Pendleton, 570 S.W.3d at 661. And, to the extent Berry

disagreed with counsel about trial strategy, such disagreement is insufficient to establish an

irreconcilable conflict or a total breakdown in communication. Johnson, 510 S.W.3d at 884.

         Thus, Berry failed to present evidence to rebut or overcome the presumption that trial

counsel rendered adequate assistance and exercised professional judgment. Because we conclude

that trial counsel’s conduct did not fall below an objective standard of reasonableness, we need

not address the prejudice prong of the Strickland test.9

         For these reasons, the motion court did not clearly err in denying Berry’s claim that he

received ineffective assistance of counsel because he was dissatisfied with his assigned public

defender and was unable to have his case assigned to a different public defender.

         Point I is denied.

                                                    Conclusion

         The motion court did not clearly err in denying Berry’s amended Rule 29.15 motion for

post-conviction relief. The trial court’s judgment is affirmed.



                                                      Karen King Mitchell, Chief Judge

Gary D. Witt and Edward R. Ardini, Jr., Judges, concur.




         9
           Berry argues that the refusal to mediate or reassign counsel constituted a “structural error,” and thus,
prejudice should be presumed. While a movant claiming constructive denial of counsel may not be required to plead
and prove prejudice, constructive denial of counsel requires either a complete absence of counsel or a complete failure
by counsel to subject the State’s case to adversarial testing. Polk v. State, 539 S.W.3d 808, 815-18 (Mo. App. W.D.
2017). Where, as here, counsel actively participated throughout trial and sentencing and Berry was found not guilty
of one charge, the record does not support a finding of constructive denial of counsel.


                                                          9
