                                                  In the
                              Missouri Court of Appeals
                                         Western District
DEE ANNE PAGEL,                                         )
                                                        )
                   Appellant,                           )   WD78066
                                                        )
v.                                                      )   OPINION FILED: January 12, 2016
                                                        )
STATE OF MISSOURI,                                      )
                                                        )
                  Respondent.                           )

                Appeal from the Circuit Court of Johnson County, Missouri
                          The Honorable Michael L. Wagner, Judge

     Before Division Three: Joseph M. Ellis, Presiding Judge, Karen King Mitchell, Judge
                                  and Gary D. Witt, Judge


         Appellant Dee Anne Pagel ("Pagel") was convicted by a Johnson County jury of

second-degree murder, Section 565.021,1 first-degree assault, Section 565.050, and two

counts of armed criminal action, Section 571.015. Pagel now appeals the motion court's

denial of her Rule 29.152 motion for post-conviction relief ("Motion"), in which she

alleged her trial counsel was ineffective because he advised her not to testify in her own




         1
          All statutory citations are to RSMo 2000, as updated through the 2015 Cumulative Supplement, unless
otherwise indicated.
        2
          All rule references are to Missouri Supreme Court Rules (2015).
defense.      Pagel raises six points on appeal all related to this general claim of

ineffectiveness. We affirm.

                                      FACTUAL BAKGROUND3

        On July 5, 2009, Pagel drove James Vitale ("Vitale") and Jason Booth ("Booth")

to the residence of Darrell Scott White ("White") in Holden, Missouri. The pretext of the

visit to White was that Vitale wanted to look at a building to rent located on White's

property to open a motorcycle repair shop. The real reason Vitale and Booth went to

White's property was to rob him of valuables (including gold bars) they believed were

located in a safe on the property. The first time the group drove to White's house, White

was not home. The group returned a second time and White answered the door. White

escorted Vitale to view the building located on the other side of White's property while

Booth remained in the yard and Pagel remained in her car.

        After viewing the building and returning back to the front of White's home, Vitale

pulled out a handgun and attempted to shoot White in the head. Vitale missed, and White

ran down the driveway trying to escape. Vitale and Booth then entered White's home,

and one of them shot and killed White's girlfriend, Lisa Smith. Meanwhile, Pagel drove

her car down the driveway chasing after White. White ran in a zig-zag pattern down the

driveway to keep from being run over, and Pagel zig-zagged behind him trying to strike

him. White made it to a trailer and went inside to escape and call 911. Pagel then drove




        3
         The facts are recited in a light most favorable to the verdict. Ferguson v. State, 325 S.W.3d 400, 404 n.2
(Mo. App. W.D. 2010).

                                                         2
back up the driveway to retrieve Vitale and Booth and drove away. Shortly thereafter,

the three were stopped by police and arrested while fleeing White's property.

       Pagel was tried on a theory of accomplice liability. The focus of the trial was

whether Pagel knew there was a plan to rob White before she drove Vitale and Booth to

White's residence. In her initial interrogation with police, Pagel denied that she had any

knowledge of the plan to rob White. In two subsequent interrogations and in her written

statement, Pagel admitted that she was aware of the plan to rob White and she knew that

Vitale had a gun when they went to White's house. White testified that he believed Pagel

had tried to run him over as he was fleeing down his driveway. Pagel did not testify in

her defense. The defense presented the testimony of two witnesses, who testified that

Pagel had only known Vitale for a very short period of time. The jury found Pagel guilty

of murder in the second degree, assault in the first degree, and two counts of armed

criminal action. This Court affirmed Pagel's convictions on direct appeal.4

       Pagel filed a timely motion for post-conviction relief that was subsequently

amended by appointed counsel. As relevant to her appeal, Pagel claimed her trial counsel

was ineffective for advising her against testifying in her own defense. An evidentiary

hearing was conducted at which Pagel's trial counsel and Pagel testified. The motion

court issued findings of fact and conclusions of law denying Pagel's motion for post-

conviction relief. Pagel now asserts six claims of error all related to counsel's advice for

her not to testify.



       4
           State v. Pagel, 382 S.W.3d 244 (Mo. App. W.D. 2012) (per curiam order).

                                                        3
                                STANDARD OF REVIEW

               This Court will affirm the judgment of the motion court unless its
       findings and conclusions are clearly erroneous. Rule 29.15(k). The motion
       court's judgment is clearly erroneous only if this Court is left with a definite
       and firm impression that a mistake has been made. The motion court's
       findings are presumed correct. Additionally, a movant bears the burden of
       proving the asserted "claims for relief by a preponderance of the evidence."
       Rule 29.15(f).

Christian v. State, 455 S.W.3d 523, 525-26 (Mo. App. W.D. 2015).

                                         ANALYSIS

                                    Points I, II, and III

       Pagel's Points I, II, and III on appeal all relate to her claim of ineffective assistance

of counsel premised on her assertion that her trial counsel was ineffective for advising her

not to testify at trial in her own defense in that such advice was unreasonable and

unsound trial strategy. Pagel argues that the motion court erred by: (Point I) failing to

recognize that an unreasonable trial strategy can provide a basis for an ineffective

assistance claim; (Point II) misunderstanding the claim; and (Point III) failing to find trial

counsel's performance was unreasonable. As all of these claims are interrelated, they will

therefore be addressed together.

       In order to establish ineffective assistance of counsel to warrant post-conviction

relief, the movant must satisfy the two-prong test from Strickland v. Washington, 466

U.S. 668, 687 (1984). Woods v. State, 458 S.W.3d 352, 356 (Mo. App. W.D. 2014).

First, the movant must show that counsel's performance was deficient by falling below an

objective standard of reasonableness.        Strickland, 466 U.S. at 688.         If counsel's

performance was deficient, the movant must then prove that she was prejudiced by

                                               4
counsel's deficiency. Id. at 687. 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. at 694. A "reasonable probability" is a probability sufficient to undermine

confidence in the outcome. Id. There is a strong presumption that counsel's conduct was

reasonable and effective. Id. at 689. To overcome this presumption, the movant must

point to specific acts or omissions of counsel that, in light of all the circumstances, fell

outside the wide range of effective assistance. Id. at 690. Strategic choices made after a

thorough investigation of the law and the facts are virtually unchallengeable. Id.

       Pagel claims her trial counsel was ineffective for advising her not to testify at trial.

The decision whether the defendant should testify at trial is often the most difficult

decision for the defendant and counsel to make. See State v. Powell, 798 S.W.2d 709,

718 (Mo. banc 1990). "The decision to testify solely rests with the defendant, but the

defendant is entitled to receive 'reasonably competent advice.'" Rousan v. State, 48

S.W.3d 576, 585 (Mo. banc 2001) (quoting State v. Dees, 916 S.W.2d 287, 301 (Mo.

App. W.D. 1995)). "Without more, advice from counsel not to testify is not deemed

ineffective assistance of counsel if it might be considered sound trial strategy." Id. (citing

Powell, 798 S.W.3d at 718); see also Morrison v. State, 75 S.W.3d 893, 897 (Mo. App.

S.D. 2002) ("In many cases, the decision to testify is an extremely difficult decision, and

absent exceptional circumstances, advice of counsel on the decision is a matter of trial

strategy and not grounds for post-conviction relief").

       The facts regarding trial counsel's advice are not in dispute as both Pagel and trial

counsel agreed as to the essential facts at the evidentiary hearing. Trial counsel testified

                                              5
that he advised Pagel that it was her right to decide whether she wanted to testify just as

much as it was her right to plead guilty or not guilty. Trial counsel told Pagel that there

are multiple factors to consider when deciding whether to testify.              Among the

considerations identified by trial counsel was that Pagel, at the time of the crimes, was on

probation for a previous drug-related felony and, if she testified, the jury would learn that

information.      Another issue identified by counsel was that Pagel was emotionally

unstable at the time of trial and he feared that having her testify could be dangerous and

detrimental to her defense. Trial counsel's advice to Pagel was that she should not testify.

At the time he gave this advice, trial counsel had thoroughly investigated the case and

was aware of Pagel's previous statements to police.        According to trial counsel, he

believed that the previous statements were both exculpatory and incriminatory. Trial

counsel discussed with Pagel whether she would testify both before trial started and after

the close of the State's evidence. Pagel ultimately decided she did not want to testify. At

the evidentiary hearing, Pagel testified that she was told and understood that it was her

decision whether to testify at trial. She heeded the advice of her trial counsel and decided

not to testify.    The motion court found that the facts above were established and

concluded that "[r]easonable trial strategy, in this instance a mere recommendation, will

not support an ineffective assistance of counsel claim." We agree.

       Contrary to Pagel's argument in Point I, the motion court correctly stated the law.

The motion court explicitly stated in its judgment that Pagel was entitled to "reasonably

competent advice" regarding her decision whether to testify, citing Rousan v. State, 48

S.W.3d 576 (Mo. banc 2001). The motion court found that trial counsel's strategy in

                                             6
recommending that Pagel not testify was a "reasonable trial strategy" and that, therefore,

it cannot support a claim for ineffective assistance of counsel. This is the correct state of

the law. See Rousan, 48 S.W.3d at 585 (Mo. banc 2001). Pagel is correct that previously

the motion court had stated "[a]llegations of ineffective assistance of counsel relating to

matters of trial strategy do not provide [a] [sic] basis for postconviction relief." A review

of the entire judgment, however, clearly shows that the court in fact found that a

reasonable or sound trial strategy is not a basis for post-conviction relief. This is how the

court addressed and dispensed with Pagel's claim.

       Further, contrary to Pagel's Point II on appeal, the motion court did not

misconstrue Pagel's claim.      Pagel suggests that the motion court's inclusion in its

judgment that it was Pagel's ultimate decision not to testify means the motion court

misconstrued the law and ignored whether the advice of counsel was reasonable or a

sound trial strategy. The motion court explicitly found, however, that trial counsel was

concerned about (1) informing the jury that Pagel at the time of the crimes was on

probation for a drug-related felony and (2) Pagel's emotional instability at the time of trial

and the possibility that she might cause damage to her defense by testifying. The motion

court found that "[r]easonable trial strategy, in this instance a mere recommendation, will

not support an ineffective assistance of counsel claim."         The motion court did not

misconstrue Pagel's claim and found that trial counsel's actions were within the broad

discretion afforded the performance of trial counsel.

       Continuing on to Point III, Pagel claims that the motion court's finding that

counsel's strategy was a reasonable trial strategy was in error. Pagel argues that the

                                              7
primary issue at trial was whether she knew there was a plan to rob White before she

drove Vitale and Booth to White's house. Granting that trial counsel was concerned with

both the evidence of Pagel's probation coming in at trial and her emotional stability and

ability to testify, Pagel argues that trial counsel's advice not to testify was nevertheless

unreasonable. Essentially, Pagel argues that she had nothing to lose by testifying because

it was the only way she would not have been found guilty, considering that her previous

statements to police were admitted into evidence.

       Before addressing Pagel's argument, the court notes that the inquiry into whether a

strategic decision made by counsel is a "sound" trial strategy is necessarily limited. An

appellate court must be deferential when scrutinizing trial counsel's performance to avoid

the "distorting effects of hindsight." See Morrison, 75 S.W.3d at 895; Strickland, 466

U.S. at 689. Thus, we have said that strategic choices made by trial counsel after a

thorough investigation of the law and facts are "virtually unchallengeable" and only

extraordinary circumstances would merit relief. Johnson v. State, 388 S.W.3d 159, 163

(Mo. banc 2012); Vaca v. State, 314 S.W.3d 331, 335 (Mo. banc 2010); Storey v. State,

175 S.W.3d 116, 125 (Mo. banc 2005) ("Where counsel has investigated possible

strategies, courts should rarely second-guess counsel's actual choices").

       Trial counsel testified at the evidentiary hearing that he agreed that the primary

issue at trial would be whether Pagel drove Vitale and Booth knowing that they intended

to rob White. After attempting and failing to get Pagel's statements to police suppressed,

Pagel's primary defense was that she did not know a crime would be committed when she

drove the vehicle to the scene of the crimes, as she had only met Vitale a week before,

                                             8
and that she was essentially an unwitting pawn in this robbery attempt. Trial counsel

believed that Pagel's statements to police that were admitted into evidence were partially

inculpatory and partially exculpatory. Trial counsel also believed that having Pagel

testify could be more damaging than helpful to her case due to evidence of prior criminal

behavior that would come into evidence and because of Pagel's emotional instability.

      We refuse to say that trial counsel's choice of strategy to recommend that Pagel

not testify due to these two reasonable concerns was beyond the wide range of strategic

and reasonable choices available to trial counsel. This is even more true here where trial

counsel had over twenty years of criminal defense experience. Where difficult decisions

about a defense must be made, in particular whether a defendant should testify in her own

defense, attorneys should use their best professional judgement, explain the various

factors to their client, give their own reasoned advice, and let the client make the final

decision. This is precisely what happened here. Trial counsel's advice was well within

the range of reasonable professional advice he could have given.

      Points I, II, III are denied.

                                      Point IV, V, and VI

      In Point IV on appeal, Pagel claims the motion court erred when it found Pagel

could not establish prejudice because her proposed testimony was not relevant to the

issue of accomplice liability. In Point V on appeal, Pagel also claims the motion court

erred when it found she could not establish prejudice with regard to her claim that if she

had testified she may have been able to present mitigating evidence to receive a lesser

sentence. Because we have found trial counsel's performance was not deficient, it is

                                              9
unnecessary to proceed further and determine whether Pagel was prejudiced by any of

her claims of ineffective assistance. See Strickland, 466 U.S. at 687-88 (movant must

show both deficient performance and that she was prejudiced by the deficiency).

      In Point VI on appeal, Pagel argues that, due to the cumulative alleged errors

addressed above, meaningful appellate review is unavailable and, therefore, the case

should be remanded. Having found the motion court did not err as alleged in Points I

through V on appeal, Point VI is without merit.

      Points IV, V, and VI are denied.

                                    CONCLUSION

      The judgment of the motion court is affirmed.




                                         __________________________________
                                         Gary D. Witt, Judge

All concur




                                           10
