STATE OF MISSOURI,                                 )
                                                   )
          Plaintiff-Respondent,                    )
                                                   )
vs.                                                )       No. SD32883
                                                   )
ANDREW LUKE LEMASTERS,                             )       Filed: June 16, 2014
                                                   )
          Defendant- Appellant.                    )

             APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY

                        Honorable Timothy W. Perigo, Circuit Judge

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

          Andrew Luke Lemasters ("Defendant") appeals from his conviction of

first-degree statutory sodomy. See § 566.062.1 He raises two points on appeal:

(1) the trial court erred in denying his motion to disqualify the Newton County

Prosecuting Attorney's Office and (2) the trial court erred in entering a written

judgment showing convictions for two counts of first-degree statutory sodomy

when Defendant was in fact convicted of only one count. We disagree with the

arguments raised in Defendant's first point but find merit in Defendant's second

point. Consequently, for the reasons explained below, we affirm Defendant's


1   Unless otherwise indicated, all statutory references are to RSMo 2000.
conviction for first-degree statutory sodomy but reverse and remand the case for

entry of an amended judgment.

                    Factual and Procedural Background

       Defendant's daughter, H.L. ("Victim"), was born in 1992. Pamela

Lemasters ("Lemasters") married Defendant in July 1992 and raised Victim as

her own child. During the spring of 2001 when the family lived in Newton

County, Defendant called Victim into his bedroom one day, told her to take her

clothes off, and put his finger in her vagina. Other incidents of sexual abuse

continued throughout Victim's childhood, but she did not tell anyone at the time

because she was afraid of Defendant and afraid she would be separated from

Lemasters and other members of the family. Victim eventually disclosed

Defendant's acts of sexual abuse.

       Defendant was charged with two counts of first-degree statutory sodomy.

Initially he was represented by Melia Cheney ("Cheney") who was employed by

the Missouri State Public Defender System ("MSPD"). Cheney subsequently left

the MSPD and joined the Newton County Prosecuting Attorney's Office. While

the case was pending, Defendant filed a motion to disqualify the Newton County

Prosecuting Attorney's Office because Cheney had previously represented

Defendant in this case.

       The trial court held a hearing regarding the motion to disqualify. The

testimony and court documents reveal the trial court ordered the MSPD to

represent Defendant on August 7, 2012. The MSPD then sent a form letter to

Defendant on August 8, 2012, advising him an attorney would subsequently visit

him as well as giving other information. On August 16, 2012, Cheney entered her

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written appearance in Defendant's case. Her office received telephone calls from

Defendant's family members, but Cheney asked her secretary to call them back

and inform them she could not speak with them about Defendant's case.

       Cheney attempted to get a bond reduction for Defendant. Cheney believed

the bond reduction request involved a court appearance, but she "did not

participate in a bond reduction hearing where witnesses were called to the

stand." Cheney met with Defendant briefly on August 19 or 20, 2012. After this

fifteen minute interview ended, Cheney asked one of her investigators to conduct

a recorded interview with Defendant because Defendant had "a problem using

too many pronouns" such that Cheney had difficulty "keep[ing] track of what he's

talking about." Finally, Cheney completed an inter-office transfer memorandum

on September 7, 2012, indicating other public defenders were working on the

case for preliminary hearing. She left the MSPD on September 7, 2012, and

began work at the Newton County Prosecuting Attorney's Office on September

10, 2012.

       Cheney testified that once she began work at the Newton County

Prosecuting Attorney's Office she did not have any participation "in the

prosecution of any individuals where [she] previously represented them."

Additionally, she did not discuss any of those cases with her colleagues at the

Newton County Prosecuting Attorney's Office except to say she had previously

represented the individuals involved. Cheney worked only with cases where the

defendants were represented by private attorneys or where the defendants

represented themselves.



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       After the hearing, the trial court denied Defendant's motion to disqualify

the Newton County Prosecuting Attorney's Office.

       Defendant was tried by a jury on June 4 - 5, 2013. During the instruction

conference, the trial judge noted "[t]he state has elected to dismiss one of the two

counts." The jury then found Defendant guilty of one count of first-degree

statutory sodomy. The judge sentenced Defendant to 31 years in the Missouri

Department of Corrections. Defendant appeals.

                                    Discussion

                      Point I: Alleged Disqualification

       In his first point, Defendant argues the trial court erred in denying his

motion to disqualify the Newton County Prosecuting Attorney's Office. This

argument is without merit because Cheney was appropriately screened from the

prosecution once she joined the Newton County Prosecuting Attorney's Office.

       "Generally, the court's decision on a motion to disqualify is reviewed based

on the abuse of discretion standard." State v. Walters, 241 S.W.3d 435, 437

(Mo. App. W.D. 2007). "Abuse of discretion only occurs if a 'ruling is clearly

against the logic of the circumstances then before the court and is so arbitrary

and unreasonable as to shock the sense of justice and indicate a lack of careful

consideration.'" State v. Hawkins, 328 S.W.3d 799, 808 (Mo. App. S.D. 2010)

(quoting State v. Taylor, 134 S.W.3d 21, 26 (Mo. banc 2004)). "If reasonable

persons can differ as to the propriety of the trial court's action, then it cannot be

said that the trial court abused its discretion." Id. (quoting Taylor, 134 S.W.3d

at 26). The facts of this case show no abuse of discretion.



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          At the time of trial, Cheney was an attorney representing a government

agency, the Newton County Prosecuting Attorney's Office. She had previously

represented Defendant in the same criminal case as his public defender. Cheney

did not participate in the prosecution of Defendant's case while she worked for

the Newton County Prosecuting Attorney's Office and disclosed no information

regarding his case. Consequently, this case involves imputation of a conflict

involving a government attorney. The applicable rule is Rule 4-1.11(d).2 Rule 4-

1.10(d); Rule 4-1.11 cmt. 2. That rule provides as follows:

          Except as law may otherwise expressly permit, a lawyer currently
          serving as a public officer or employee:

          (1)      is subject to Rules 4-1.7 and 4-1.9; and

          (2)      shall not:

                   (i)     participate in a matter in which the lawyer
                           participated personally and substantially while in
                           private practice or nongovernmental employment,
                           unless the appropriate government agency gives its
                           informed consent, confirmed in writing[.]

Rule 4-1.11(d).

          Rule 4-1.7 governs concurrent conflicts, so is not relevant to the

disposition of this case. Rule 4-1.9, governing duties to former clients, provides

that "[a] lawyer who has formerly represented a client in a matter shall not

thereafter represent another person in the same or a substantially related matter

in which that person's interests are materially adverse to the interests of the

former client unless the former client gives informed consent, confirmed in

writing." Rule 4-1.9(a).



2   Unless otherwise indicated, all rule references are to Missouri Court Rules (2013).

                                                   5
       These rules prohibit the government attorney's participation in a matter

where the attorney participated personally and substantially prior to joining the

government agency, but, contrary to the practice involving private attorneys, see

Rule 4-1.10, they do not impute the attorney's conflict to the entire agency. As

the comments to the rules explain, "[b]ecause of the special problems raised by

imputation within a government agency, Rule 4-1.11(d) does not impute the

conflicts of a government lawyer currently serving as an officer or employee of

the government to other associated government officers or employees, although

ordinarily it will be prudent to screen such lawyers." Rule 4-1.11 cmt. 2.

       In the present case, Cheney did not participate in any way in Defendant's

case once she joined the Newton County Prosecuting Attorney's Office. Thus,

Cheney complied with Rule 4-1.9(a) which prevented her participation in

Defendant's case because she had participated in the case during her employment

with the MSPD. Furthermore, Cheney did not talk to other attorneys in the

Newton County Prosecuting Attorney’s Office about the case or appear in court

on any MSPD dockets. Thus, the Newton County Prosecuting Attorney's Office

complied with Rule 4-1.11. Cheney's individual conflict was not imputed to the

government office as the procedures implemented to screen Cheney were

appropriate. See Rule 4-1.11 cmt. 2. The trial court did not abuse its discretion

when it denied Defendant's motion to disqualify.

       In reaching this conclusion, we have not overlooked our previous decision

in State v. Reinschmidt, 984 S.W.2d 189 (Mo. App. S.D. 1998). Rather, we

believe Reinschmidt was incorrectly decided.



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       In Reinschmidt, one of the attorneys associated with the prosecutor's

office represented the defendant for two years while she worked as an assistant

public defender. Id. at 192. After the former defense attorney started working

for the prosecutor's office, the defendant filed a motion to disqualify the

prosecutor's office. Id. at 191. The former defense attorney submitted an

affidavit assuring the trial court she was not involved in the defendant's

prosecution, and the trial court overruled the motion. Id. at 190-91. The

defendant was subsequently tried and convicted. Id. at 191.

       On appeal, the defendant again argued the prosecutor's office should have

been disqualified. Id. This Court found the situation created "such suspicions

and appearances of impropriety" that disqualification of the entire prosecutor's

office was required. Id. at 191-92.

       That conclusion was incorrect because it did not apply Rule 4-1.11.

Nowhere in the Reinschmidt opinion did the Court cite to the applicable rule.

Furthermore, the phrase the Court did use—"appearance of impropriety"—echoes

the former rules of professional conduct which stated lawyers should strive to

avoid "the appearance of impropriety." Rule 4, EC 9-6, Missouri Court Rules

(1983) (repealed 1986). However, those rules were repealed when the current

rules were adopted in 1986. State ex rel Horn v. Ray, 138 S.W.3d 729, 732

(Mo. App. E.D. 2002). Thus, Reinschmidt applied a rule that was no longer in

force. Consequently, it was improperly decided and should no longer be

followed.

       Defendant's reliance on State v. Croka, 646 S.W.2d 389 (Mo. banc

1983), is unpersuasive for a similar reason. Croka was decided in 1983. Thus,

                                          7
Croka applied the prior set of disciplinary rules which stated lawyers should

avoid an "appearance of impropriety." Rule 4, EC 9-6, Missouri Court Rules

(1983) (repealed 1986). As explained above, those rules were repealed in 1986.

Since Croka did not apply the rule that is currently in force, it has no bearing on

the proper result in this case.

       Finally, Defendant also cites State v. Ross, 829 S.W.2d 948 (Mo. banc

1992), in support of his argument for reversal. Ross is different from the present

case because it involved a different type of conflict. In Ross, the prosecuting

attorney's office charged the defendant with assault in connection with a fight.

829 S.W.2d at 949. The defendant subsequently consulted with a private law

firm in the hope of filing a civil lawsuit arising out of the same transaction. Two

of the attorneys with that private law firm were also part-time prosecuting

attorneys and received confidential information regarding the civil case at the

same time the criminal prosecution was taking place. Id. The Supreme Court of

Missouri discussed prior case law and the text of Rule 4-1.7 and Rule 4-1.11 before

deciding the concurrent conflict created an appearance of impropriety. Id. at

951.

       Here, unlike in Ross, the conflict was not created by a concurrent

representation but by Cheney's duties to a former client. A concurrent conflict of

interest creates more potential dangers to the affected client. Since Ross

involved a concurrent conflict of interest and the present case does not, Ross is

not controlling.

       Cheney was properly screened from the prosecution of Defendant’s case

when she joined the Newton County Prosecuting Attorney's Office. This

                                         8
procedure complied with Rule 4-1.9(a) and Rule 4-1.11(d). Defendant has not

alleged that Cheney's prior employment affected his trial in any way. The mere

fact that an assistant prosecuting attorney who was properly screened previously

represented a defendant in the same criminal matter should not automatically be

imputed to require a prosecuting attorney and his entire staff to be disqualified.

Consequently, the trial court did not abuse its discretion in denying Defendant's

motion to disqualify the entire Newton County Prosecuting Attorney's Office.

Defendant's first point is denied.

                  Point II: Error in the Written Judgment

       In his second point, Defendant argues the trial court erred in entering a

written judgment which reflects convictions for two offenses when in fact

Defendant was convicted of only one offense. The State concedes this was error,

and we agree.

       Clerical errors in the sentence and judgment in a criminal case may be

corrected by an order nunc pro tunc where the written record does not reflect

what was actually done. State v. Carroll, 207 S.W.3d 140, 142 (Mo. App. E.D.

2006); Rule 29.12(c). "When the decision of the trial court as announced in open

court was inaccurately memorialized, it is clear there was a clerical error." State

v. Kerns, 389 S.W.3d 244, 248 (Mo. App. S.D. 2012).

       Here, it is clear the written judgment does not reflect what actually

occurred during trial and sentencing. Defendant was initially charged with two

identical counts of first-degree statutory sodomy. During the instruction

conference, the judge stated the State had dismissed one of the charges. Only one

verdict director was submitted to the jury, and the jury returned only one guilty

                                         9
verdict. Then, the trial court specifically imposed one sentence of 31 years

incarceration.

       Nevertheless, the judgment states Defendant was found guilty of two

counts of first-degree statutory sodomy. Under this record, the trial court's

intentions are clear—Defendant was convicted of one count and was sentenced to

serve one term of 31 years incarceration—and a nunc pro tunc order is

appropriate. See State v. Allison, 326 S.W.3d 81, 95 (Mo. App. W.D. 2010).

       Defendant's second point is granted.

                                    Decision

       Defendant's conviction for first-degree statutory sodomy is affirmed. The

case is remanded for entry of an amended judgment reflecting only one

conviction for that offense.

Sheffield, J. - Opinion Author

Francis, C.J. - CONCURS

Rahmeyer, J. - CONCURS

Bates, J. - CONCURS

Lynch, J. - CONCURS

Scott, J. - CONCURS

Burrell, J. - CONCURS




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