              IN THE MISSOURI COURT OF APPEALS
                      WESTERN DISTRICT
 ANTONIO D. WEST,                                       )
                                                        )
                                        Appellant,      )    WD83013
 v.                                                     )    (Consolidated with WD83014)
                                                        )
                                                        )    OPINION FILED:
 STATE OF MISSOURI,                                     )    August 25, 2020
                                                        )
                                     Respondent.        )


                    Appeal from the Circuit Court of Platte County, Missouri
                        The Honorable James W. Van Amburg, Judge

                  Before Division One: Thomas H. Newton, Presiding Judge, and
                        Mark D. Pfeiffer and Edward R. Ardini, Jr., Judges

        Mr. Antonio D. West (“West”) appeals from the judgment of the Circuit Court of Platte

County, Missouri (“motion court”), denying, after an evidentiary hearing, his Rule 29.15 amended

motion for post-conviction relief, based on ineffective assistance of trial and appellate counsel.

We affirm.

                                Factual and Procedural Background1

        In the underlying criminal case, West was charged in the Circuit Court of Platte County,

Missouri, with stealing in two separate cases. In the first case (Case No. 15AE-CR00141-01),



        1
           On appeal from the motion court’s denial of a Rule 29.15 motion, we view the facts in the light most
favorable to the verdict and judgment. McFadden v. State, 553 S.W.3d 289, 296 n.2 (Mo. banc 2018).
West was charged with committing the class D felony of stealing for appropriating Sony Bluetooth

speakers from Target on January 20, 2015. In the second case (Case No. 15AE-CR00642-01),

West was charged with committing the class D felony of stealing for appropriating a speaker from

Walmart on March 17, 2015.

        In each case, the State alleged that within ten years of the charged offense, West had

pleaded guilty on two separate occasions to stealing-related offenses: on October 19, 2014, in the

Circuit Court of Platte County, Missouri, in Case No. 12AE-CR02824-01, he pleaded guilty to

stealing for events that occurred on July 7, 2012; and on August 12, 2005, in the District Court of

Johnson County, Kansas, in Case No. 05CR1284, he pleaded guilty to attempted felony theft for

events that occurred on May 5, 2005. The State further alleged that West was a prior offender and

a persistent offender under section 558.016 in that he pleaded guilty to two or more felonies

committed at different times: on April 19, 2012, in the Circuit Court of Jackson County, Missouri,

in Case No. 1116-CR04334-01, he pleaded guilty to the class C felony of burglary in the second

degree for events that occurred on October 5, 2011; and on April 18, 2007, in the Circuit Court of

Jackson County, Missouri, in Case No. 0516-CR02874-01, he pleaded guilty to the class C felony

of stealing for events that occurred on March 5, 2005.

        The State moved the trial court to join the cases under Rule 23.05. West did not object to

the State’s motion, and the trial court consolidated the cases for trial. Prior to trial, the trial court

entered its order finding West was a prior and persistent offender as alleged in the information.

After a jury trial, West was found guilty as charged in both cases. The trial court later imposed

consecutive five-year sentences for each offense. West appealed his convictions, and this court

affirmed. State v. West, 541 S.W.3d 635 (Mo. App. W.D. 2017).




                                                   2
        West filed a pro se Rule 29.15 motion for post-conviction relief in each of the consolidated

cases, and appointed counsel timely filed an amended motion. The amended motion asserted two

grounds for vacating West’s convictions and sentences: West contends that both trial and appellate

counsel provided constitutionally ineffective services by failing to argue on his behalf at trial and

on appeal that the State failed to prove the elements of stealing, third offense, because one of the

two prior convictions submitted by the State as an element of the case did not qualify as a

“stealing-related offense” contemplated by section 570.040.2 The motion court conducted an

evidentiary hearing and later entered its judgment denying West’s post-conviction motion.

        West timely appealed.

                                           Standard of Review

        Appellate review of a judgment denying a Rule 29.15 motion for post-conviction relief is

limited to determining whether the motion court’s findings of fact and conclusions of law are

clearly erroneous. Rule 29.15(k).3 “A judgment is clearly erroneous when, in light of the entire

record, the court is left with the definite and firm impression that a mistake has been made.”

Shockley v. State, 579 S.W.3d 881, 892 (Mo. banc 2019) (internal quotation marks omitted).

                                                  Analysis

        West asserts two points on appeal. First, he contends that the motion court erred in denying

him post-conviction relief because trial counsel was ineffective for failing to raise in his motion

for new trial the claim that the State failed to prove the elements of stealing, third offense, in that

his prior conviction for “attempted theft” does not qualify as a “stealing-related” offense from

section 570.040.2. Second, he argues that the motion court erred in denying him post-conviction



        2
        All statutory references are to the REVISED STATUTES OF MISSOURI 2000, as updated through the 2014
Noncumulative Supplement. Section 570.040 was repealed by L. 2014, S.B. No. 491, § A, effective January 1, 2017.
      3
        All rule references are to I MISSOURI COURT RULES – STATE 2020.


                                                       3
relief because appellate counsel was also ineffective for failing to raise this issue in his direct

appeal. Because the points are related, we will address them together.

       To convict West of stealing, third offense, under section 570.040, the State bore the burden

to prove that West had committed the instant charged offense and “previously pled guilty to or

been found guilty of two stealing-related offenses committed on two separate occasions where

such offenses occurred within ten years of the date of occurrence of the present offense[.]”

§ 570.040.1. “Evidence of prior guilty pleas or findings of guilt shall be heard by the court, out of

the hearing of the jury, prior to the submission of the case to the jury, and the court shall determine

the existence of the prior guilty pleas or findings of guilt.” § 570.040.3. A “stealing-related

offense” is defined in section 570.040.2:

       As used in this section, the term “stealing-related offense” shall include federal
       and state violations of criminal statutes against stealing, robbery, or buying or
       receiving stolen property and shall also include municipal ordinances against same
       if the defendant was either represented by counsel or knowingly waived counsel in
       writing and the judge accepting the plea or making the findings was a licensed
       attorney at the time of the court proceedings.

       In both of the underlying criminal cases, the Information in Lieu of Indictment alleged that

West previously pleaded guilty on two or more separate occasions to a stealing-related offense for

events that occurred within ten years of the offense with which he was charged, specifically:

       On or about October 19, 2014 in the Circuit Court of Platte County, Missouri, the
       defendant pleaded guilty to stealing in Case No. 12AE-CR02824-01 for events
       which occurred on July 7, 2012; and

       On or about August 12, 2005, in the District Court of Johnson County, Kansas, the
       defendant pleaded guilty to attempted felony theft in Case No. 05CR1284 for events
       which occurred on May 5, 2005.




                                                  4
Defense counsel did not object during a pre-trial hearing when the State introduced evidence of

West’s two prior guilty pleas supporting the felony stealing charge.4 On appeal, it is the attempted

felony theft prior offense that West submits is not a “stealing-related” conviction.

         “In analyzing a criminal statute, this Court determines the legislature’s intent from the

language of the statute, and gives effect to that intent.” State v. Libertus, 560 S.W.3d 578, 581

(Mo. App. W.D. 2018) (internal quotation marks omitted). “We examine the language in the

statute according to its plain and ordinary meaning.” Id. (internal quotation marks omitted).

“Where the statutory language is unambiguous, we need not resort to statutory construction and

must give effect to the statute as written.” Id. (internal quotation marks omitted). “‘A court will

look beyond the plain meaning of the statute only when the language is ambiguous or would lead

to an absurd or illogical result.’” State v. Gilmore, 508 S.W.3d 132, 135 (Mo. App. S.D. 2016)

(quoting Akins v. Dir. of Revenue, 303 S.W.3d 563, 565 (Mo. banc 2010)). Conversely, “[w]e will

not interpret a statute or ordinance so as to reach an absurd result contrary to its clear purpose.”

Leiser v. City of Wildwood, 59 S.W.3d 597, 604 (Mo. App. E.D. 2001) (citing Spradlin v. City of

Fulton, 982 S.W.2d 255, 258 (Mo. banc 1998)). “A statute’s provisions must be construed and




         4
           The Kansas conviction, certified by the Johnson County District Court Clerk, was introduced into evidence
by the State. Ex. 3. The attached amended complaint charged that on May 5, 2005, West:

         unlawfully, feloniously and willfully commit[ted] an overt act, to-wit: enter a 1985 Chevy Monte
         Carlo, toward the perpetration of the crime of theft, as defined by K.S.A. 21-3701, which is to
         unlawfully, feloniously and willfully obtain or exert unauthorized control over property, to-wit: a
         1985 Chevy Monte Carlo, with the intention to permanently deprive the owner . . . of the possession,
         use or benefit of the property . . . with the intention to commit said crime but was prevented or
         intercepted in the execution thereof, a severity level 10 non-person felony, in violation of
         K.S.A. 21-3301, K.S.A. 21-4704 and K.S.A. 21-4707.

The judgment reflected West’s conviction for attempted felony theft in violation of K.S.A. 21-3701 (“Theft. (a) Theft
is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of the
owner’s property: (1) Obtaining or exerting unauthorized control over property[.]”) and K.S.A. 21-3301 (“Attempt.
(a) An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime
but fails in the perpetration thereof or is prevented or intercepted in executing such crime.”).


                                                          5
considered together and, if possible, all provisions must be harmonized and every clause given

some meaning.” Gilmore, 508 S.W.3d at 135 (internal quotation marks omitted).

        A person commits the offense of stealing when that person “appropriates property or

services of another with the purpose to deprive him or her thereof, either without his or her consent

or by means of deceit or coercion.” § 570.030.1(1). As defined in section 570.040.2, the term

“stealing-related offense” includes “federal and state violations of criminal statutes against

stealing, robbery, or buying or receiving stolen property.” (Emphasis added.) An attempt to

commit a charged offense is a lesser-included offense of the charged offense. § 556.046.1(3); see

also State v. Messa, 914 S.W.2d 53, 54 (Mo. App. W.D. 1996).5

        To suggest that having the purpose to appropriate another’s property without consent or by

means of deceit or coercion and taking a substantial step toward such criminal enterprise does not

constitute a criminal violation “related” to stealing is absurd and illogical. The clear purpose of

the legislature in enacting section 570.040 was to impose enhanced punishment on offenders who

purposely act to commit the act of stealing and engage in conduct designed to complete the

commission of that crime. And a plain reading of section 570.040 clearly attaches consequences

to offenders who intended to steal, committed a substantial act to complete the crime of stealing,

yet failed to accomplish the crime, perhaps by some reason beyond their control and certainly

against their wishes. We conclude that the plain meaning of section 570.040.2 is clear and

unambiguous:       the crimes of “stealing” and “attempted stealing” are both “stealing-related

offense[s].”




         5
           At the time of West’s prosecution, “attempt” to commit a crime was codified at section 564.011.1, and
required two elements: “(1) the defendant has the purpose to commit the underlying offense, and (2) the doing of an
act which is a substantial step toward the commission of that offense.” State v. Withrow, 8 S.W.3d 75, 78 (Mo. banc
1999) (modified on other grounds by State v. Claycomb, 470 S.W.3d 358, 362 (Mo. banc 2015)); see also State v.
Ransburg, 504 S.W.3d 721, 723 (Mo. banc 2016).


                                                        6
        “To be entitled to post-conviction relief for ineffective assistance of counsel, a movant

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

test to prove his or her claims.” Shockley, 579 S.W.3d at 892 (citing Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “Under Strickland, Movant must

demonstrate: (1) trial counsel failed to exercise the level of skill and diligence reasonably

competent trial counsel would in a similar situation, and (2) he was prejudiced by that failure.” Id.

(citing Strickland, 466 U.S. at 687). “Movant must overcome the strong presumption trial

counsel’s conduct was reasonable and effective.” Id. “To overcome this presumption, a movant

must identify specific acts or omissions of counsel that, in light of all the circumstances, fell outside

the wide range of professional competent assistance.” Id. (internal quotation marks omitted).

“Prejudice occurs when ‘there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.’” Id. (quoting Strickland, 466 U.S.

at 694).

        Trial counsel testified during the post-conviction evidentiary hearing that he was familiar

with section 570.040 and the elements required to prove stealing, third offense. He stated that he

conducted legal research and “believe[d] that legally within the definition of ‘stealing related

offense’ that attempted stealing fit under [section 570.040].” He further testified that, based upon

his reading of section 570.040, he did not believe there was a valid legal reason to argue that the

“attempted felony theft” conviction did not qualify as a “stealing-related offense” under the statute.

        The motion court found that trial counsel provided West with professional and effective

representation in both cases. Trial counsel “analyzed the prior offenses used for enhancement, and

in his professional opinion, they legally met the requirements to enhance [West’s] case to a felony.

After his legal analysis, he concluded the Johnson County, Kansas attempted stealing prior was a




                                                   7
‘stealing-related’ offense.” Thus, the motion court concluded that West’s claim of ineffective

assistance of trial counsel was without merit.

        Based upon our conclusion that the crime of attempted stealing is a “stealing-related

offense,” an insufficiency-of-the-evidence claim would not have provided West with a basis for a

new trial. The motion court did not clearly err in concluding that trial counsel’s conduct was

reasonable and was not constitutionally deficient.

        “The standard for reviewing a claim of ineffective appellate counsel is essentially the same

as that employed with trial counsel; movant is expected to show both a breach of duty and resulting

prejudice.” Hosier v. State, 593 S.W.3d 75, 87 (Mo. banc 2019) (internal quotation marks

omitted). “To prevail on a claim of ineffective assistance of appellate counsel, the movant must

establish that counsel failed to raise a claim of error that was so obvious that a competent and

effective lawyer would have recognized and asserted it.” Tisius v. State, 519 S.W.3d 413, 431

(Mo. banc 2017) (internal quotation marks omitted). “There is no duty to raise every possible

issue asserted in the motion for new trial on appeal, and no duty to present non-frivolous issues

where appellate counsel strategically decides to winnow out arguments in favor of other

arguments.” Hosier, 593 S.W.3d at 87 (internal quotation marks omitted). And, failure to raise

“an unpreserved claim of error . . . will rarely be determined to be ineffective by appellate counsel.”

Goodwater v. State, 560 S.W.3d 44, 57 (Mo. App. W.D. 2018).

        West’s direct-appeal counsel testified that she raised two claims in West’s direct appeal

that she believed had the best chance at success on appeal: She argued in West’s direct appeal that

(1) the trial court erred in admitting evidence of other crimes; and (2) the trial court erred by failing

to make an express finding on the record that West had pleaded guilty to or had been found guilty

of any prior stealing-related offenses.




                                                   8
       The motion court concluded that “appellate counsel properly observed the issues on appeal

and challenged those that she thought were worthy of challenging.” The motion court further

concluded that West was not prejudiced by appellate counsel not raising on direct appeal that the

prior used by the State to enhance West’s case to felony stealing did not meet the criteria to make

him eligible for felony prosecution under stealing, third offense, because “the attempted felony

stealing prior from the District Court of Johnson County, Kansas is a ‘stealing-related offense’

against stealing.” The motion court concluded that West’s claim of ineffective assistance of

appellate counsel was without merit.

       Appellate counsel testified that it was her appellate strategy to focus on trial court error in

admitting evidence of other crimes. “‘Reasonable choices of trial strategy, no matter how ill-fated

they appear in hindsight, cannot serve as a basis for a claim of ineffective assistance.’” Weinert v.

State, 593 S.W.3d 666, 670-71 (Mo. App. E.D. 2020) (quoting Anderson v. State, 196 S.W.3d 28,

33 (Mo. banc 2006)). “Appellate counsel can strategically decide to ‘winnow out’ non-frivolous

arguments in favor of other reasonable arguments.” Id. at 671. And, based upon our conclusion

that the crime of attempted stealing is a “stealing-related offense,” a claim on appeal asserting

insufficiency of the evidence to make a third offense stealing case based on the argument that the

attempted felony stealing prior was not a “stealing-related offense” would have been frivolous.

“‘[A]ppellate counsel cannot be deemed ineffective for failing to raise a nonmeritorious claim.’”

Proby v. State, 582 S.W.3d 170, 175 (Mo. App. S.D. 2019) (quoting Joyner v. State, 421 S.W.3d

580, 582 (Mo. App. E.D. 2014)). The motion court did not clearly err in concluding that appellate

counsel’s conduct was reasonable and was not constitutionally deficient.

       Having concluded that West’s trial counsel and appellate counsel each performed in a

reasonably competent and professional manner and that West failed to make the required showing




                                                 9
of constitutionally deficient performance by either counsel, we need not consider the Strickland

prejudice prong. Strickland, 466 U.S. at 700.

          Points I and II are denied.

                                           Conclusion

          Because the findings and conclusions of the motion court are not clearly erroneous, we

affirm.

                                             /s/Mark D. Pfeiffer
                                             Mark D. Pfeiffer, Judge

Thomas H. Newton, Presiding Judge, and Edward R. Ardini, Jr., Judge, concur.




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