CHRISTOPHER MICHAEL SHELBY,               )
                                          )
                     Appellant,           )
                                          )
       vs.                                ) No. SD36125
                                          )
STATE OF MISSOURI,                        ) FILED: March 24, 2020
                                          )
                     Respondent.          )

         APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                         Honorable David C. Jones, Judge
AFFIRMED
       Christopher Shelby appeals a denial of post-conviction relief. We affirm
because his ineffective assistance of counsel (“IAC”) claim is not recognized and he
would not prevail in any event.
                                   Background
       Shelby and others choked a man with a belt, cut his face, stole his wallet and
car, then left him for dead on a country road. When police found the victim’s car,
Shelby was nearby with the car keys and the victim’s debit card in his pocket.
       Shelby soon volunteered to talk to police because he “wasn’t going down for
this alone.” He admitted his involvement to a detective who interviewed him at
jail that night and again the next morning. Shelby was charged and counsel was
appointed.
         Shelby moved to suppress the police interviews, believing his jail-booking
video would show he was not of right mind when he was brought to jail. Counsel 1
obtained and viewed that video, which showed no inappropriate behavior by
Shelby. Counsel then discussed the video with Shelby and advised against using
the video because it would not help Shelby. Shelby agreed.
         Thereafter, in the following order:
             •   The state made a plea offer.
             •   The court denied Shelby’s motion to suppress.
             •   The state set a deadline for accepting its plea offer.
             •   Shelby conferred with counsel, then rejected the plea offer, which the
                 state would not later renew.
             •   Shelby himself saw the booking video.
             •   Shelby was convicted and sentenced less favorably than the plea
                 offer. We affirmed on direct appeal.
         Shelby sought Rule 29.15 relief, ultimately asserting four claims, all of which
were denied after an evidentiary hearing. 2
                              Point on Appeal/Analysis
         On appeal, Shelby renews only his claim of IAC because his lawyers did not
show him the booking video before the state’s plea-offer deadline
             in that [Shelby] erroneously believed that the booking video
             would help him get his confession suppressed, and he did not
             want to plead without seeing first-hand that it would not. Had
             his trial attorneys shown him the booking video before the offer
             had expired, there is a reasonable probability [Shelby] would
             have accepted the State’s plea offer.
         We will grant relief only if the motion court clearly erred. Hounihan v.
State, 592 S.W.3d 343, 347 (Mo. banc 2019); Rule 29.15(k).
         “The Supreme Court has addressed two specific and narrow instances of
attorney error in the context of plea bargaining: (1) failing to communicate an


1Shelby first was represented by a public defender, then by privately-retained counsel,
then again through trial and sentencing by his original public defender. Shelby lumped
both lawyers into a single IAC complaint below and on appeal.
2   The record shows that the pro se and amended motions were timely.

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existing offer to the defendant; and (2) providing bad advice about an existing
offer.” Arnold v. State, 509 S.W.3d 108, 114 (Mo.App. 2016). Shelby’s claim fits
neither category. If anything, Shelby implicitly concedes that counsel correctly
evaluated the booking video and that he (Shelby) did not.
       Further, the motion court cited both counsels’ testimony that they reviewed
the booking video, concluded it would not help Shelby, and told him so. The
motion court expressly credited their testimony in finding Shelby had not shown
IAC.   Despite Shelby’s contrary arguments, we defer to those credibility
determinations and the motion court’s right to believe counsel’s testimony. See
Durst v. State, 584 S.W.3d 817, 819 (Mo.App. 2019).
       The motion court did not clearly err. Point denied. Judgment affirmed.


DANIEL E. SCOTT, P.J. – OPINION AUTHOR
DON E. BURRELL, J. – CONCURS
MARY W. SHEFFIELD, J. – CONCURS




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