                          In the Missouri Court of Appeals
                                  Eastern District
                                                 DIVISION TWO


    BRADLEY R. WEINERT,                                       )   No. ED107715
                                                              )
            Appellant,                                        )   Appeal from the Circuit Court of
                                                              )   St. Louis County
    vs.                                                       )
                                                              )   Honorable Stanley J. Wallach
    STATE OF MISSOURI,                                        )
                                                              )
            Respondent.                                       )   Filed: January 21, 2020

                                                     Introduction

           Bradley Weinert (“Movant”) appeals the motion court’s denial of his Rule 29.151 motion

for post-conviction relief. Movant claims his appellate attorney (“Appellate Counsel”) was

ineffective for failing to assert on direct appeal the trial court erred in accepting unauthenticated

documentary evidence from the driving while intoxicated tracking system (“DWITS”). The use

of the DWITS records supported Movant’s classification as a “chronic offender” under Section

577.023.2 Movant claims the motion court erred in finding Appellate Counsel’s actions were

reasonable because a reasonable attorney at the time should have recognized the claim of error

(“DWITS claim”) and asserted it on direct appeal. We disagree. We find Movant has failed to

show the DWITS claim was so obvious any reasonably competent attorney would have asserted

it at the time of Movant’s direct appeal. Therefore, we find the motion court’s conclusion

1
    All rule references are to Missouri Supreme Court Rules 2016, unless otherwise indicated.
2
    All statutory references are to RSMo (2012) effective March 20, 2012, unless otherwise indicated.
regarding Appellate Counsel’s performance was not clearly erroneous. The motion court’s

denial of Movant’s amended motion is affirmed.

                               Factual and Procedural Background

        Movant was charged with driving while intoxicated under Section 577.010 as a “chronic

offender” under Section 577.023.1(2). Movant’s case went to trial in the circuit court of St.

Louis County. Before the case was submitted to the jury, the circuit court held a hearing outside

the jury’s presence on Movant’s classification as a “chronic offender” under Section 577.023.

The State presented printed copies of search results from the DWITS as Exhibits 1 through 6.

These DWITS records were hard-copy facsimiles of online searches of the DWITS, which

indicated Movant had been found guilty or entered a guilty plea for six intoxication-related

traffic offenses. Movant’s counsel objected there was no foundation to authenticate the DWITS

records. The trial court overruled the objection and accepted the evidence saying it had accepted

these records in other cases under Section 577.023.16. The trial court classified Movant as a

“chronic offender” under Section 577.023.1(2) enhancing the class B misdemeanor charge of

driving while intoxicated to a Class B felony charge. At trial, the jury found Movant guilty.

Movant was sentenced by the circuit court to a term of 11 years in the Missouri Department of

Corrections.

        Movant appealed the judgment and sentence. Appellate Counsel represented Movant on

direct appeal and asserted three properly preserved claims of error. He claimed the trial court

abused its discretion by overruling the timely objections of Movant’s trial counsel when the State

used:

           evidence of the severity of one of the victim’s injuries because it was irrelevant and
            prejudicial;
           evidence of long-term emotional trauma allegedly suffered by one of the victim’s
            because it was irrelevant and prejudicial;


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          six beer bottles during closing argument because they were irrelevant and not offered
           into evidence at trial.

If granted, each claim would have resulted in a new trial. Movant’s claims were denied on direct

appeal in a per curiam order. See State v. Weinert, 502 S.W.3d 78 (Mo. App. E.D. 2016).

       Movant timely filed a pro se Rule 29.15 motion claiming Appellate Counsel was

ineffective during the direct appeal. Post-conviction counsel timely filed an amended Rule 29.15

motion. Movant claimed Appellate Counsel failed to assert the DWITS claim, which was

preserved for appeal. Movant claimed the trial court allowed the State to use the DWITS records

without authenticating the documents by presenting them as certified business records or calling

a witness to attest to their authenticity. Movant claimed if Appellate Counsel brought the

DWITS claim there was a reasonable probability the case would have been remanded to the trial

court for re-sentencing.

       The motion court held an evidentiary hearing. Movant and Appellate Counsel testified.

Appellate Counsel testified he reviewed the record for Movant’s direct appeal, including the trial

transcript and post-trial motion. Appellate Counsel conceded the DWITS claim was preserved

for appeal. Appellate Counsel also read Section 577.023.16 in his review of the Movant’s file.

Appellate Counsel believed the statute allowed the DWITS records to come in as offered by the

State. Appellate Counsel believed certain records must be certified based on the language of the

statute, but the records used by the State did not require certification. Appellate Counsel

believed the language of Section 557.023.16 eliminated the need to authenticate or lay

foundation for DWITS records

       The motion court denied Movant’s amended Rule 29.15 motion. The motion court found

the DWITS claim was properly preserved by trial counsel’s objection and post-trial motion. The

motion court found Appellate Counsel asserted three other preserved claims of error on direct


                                                3
appeal, not including the DWITS claim. The motion court also found Appellate Counsel had

impressive qualifications and experience including over 25 years of appellate work. The motion

court found Appellate Counsel reviewed Movant’s trial transcript and post-trial motion. The

motion court also found Appellate Counsel reviewed the language of Section 577.023.16 and,

after review, chose not to appeal the DWITS claim because he believed after review the statute

allowed the use of the DWITS records.

       According to the motion court, Appellate Counsel decided not to appeal the DWITS

claim based on “focused and thoughtful attention and analysis[.]” The motion court found

Appellate Counsel made a “considered, intentional decision.” The motion court found Movant

failed to meet the burden of showing, by a preponderance of the evidence, Appellate Counsel

was ineffective for failing to assert the DWITS claim on appeal. The motion court also found

Movant failed to show the failure to assert the DWITS claim prejudiced Movant.

       This appeal followed.

                                           Discussion

                                      Standard of Review

       This Court reviews a motion court’s judgment denying post-conviction relief to

determine whether any findings of fact or legal conclusions were clearly erroneous. Rule

29.15(k); Meiners v. State, 540 S.W.3d 832, 836 (Mo. banc 2018). A judgment is clearly

erroneous only if this Court is “left with a definite and firm impression that a mistake has been

made.” Id. A movant has the burden of proving all allegations by a preponderance of the

evidence. Rule 29.15(i).

       “In reviewing the overruling of a motion for post-conviction relief, the motion court's

findings are presumed correct.” Zink v. State, 278 S.W.3d 170, 175 (Mo. banc 2009) (citing




                                               4
Worthington v. State, 166 S.W.3d 566, 572 (Mo. banc 2005)). We defer to “the motion court's

superior opportunity to judge the credibility of witnesses.” Barton v. State, 432 S.W.3d 741, 760

(Mo. 2014) (quoting State v. Twenter, 818 S.W.2d 628, 635 (Mo. banc 1991)).

                    Strickland Standard – Failure to Raise A Claim on Appeal

       To be entitled to post-conviction relief based on ineffective assistance of appellate

counsel, the movant must satisfy the two-prong test set out in Strickland v. Washington, 466 U.S.

668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The movant must first establish appellate

counsel’s performance was deficient. Meiners, 540 S.W.3d at 836 (citing Strickland, 466 U.S. at

687). A movant must also demonstrate the deficient performance resulted in prejudice to his

defense. Id. (citing Strickland, 466 U.S. at 687). A movant must satisfy both prongs of the

Strickland test. State v. Simmons, 955 S.W.2d 729, 746 (Mo. banc 1997). If the movant fails to

satisfy either prong, an appellate court need not consider the other. Id.

                                            Performance

       To show deficient performance, a movant must show counsel “failed to exercise the level

of skill and diligence that a reasonably competent counsel would in a similar situation.” Meiners,

540 S.W.3d at 836 (quoting McIntosh v. State, 413 S.W.3d 320, 324 (Mo. banc 2013)). We

analyze the decisions of appellate counsel in essentially the same way as trial counsel. Murray v.

State, 511 S.W.3d 442, 445-46 (Mo. App. E.D. 2017) (citing Helmig v. State, 42 S.W.3d 658,

682 (Mo. App. E.D. 2001)). There is a strong presumption counsel’s conduct was reasonable

and effective. Johnson v. State, 406 S.W.3d 892, 899 (Mo. banc 2013).

       “[S]trategic choices made after a thorough investigation of the law and the facts relevant

to plausible opinions are virtually unchallengeable.” Zink, 278 S.W.3d at 176 (internal citations

omitted) (quoting Strickland, 466 U.S. at 690). “Reasonable choices of trial strategy, no matter




                                                  5
how ill-fated they appear in hindsight, cannot serve as a basis for a claim of ineffective

assistance.” Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006). On appeal as well as at trial,

the choice of one reasonable strategy over another is not ineffective assistance. Zink, 278 S.W.3d

at 176 (citing Worthington, 166 S.W.3d at 573).

          For a failure to raise a claim on appeal, a movant must show a claim of error is “so

obvious from the record that a competent and effective lawyer would have recognized it and

asserted it.” Murray, 511 S.W.3d at 446 (citing Reuscher v. State, 887 S.W.2d 588, 591 (Mo.

banc 1994)). An appellate attorney does not have to raise every preserved issue. Meiners, 540

S.W.3d at 838 (citing Storey v. State, 175 S.W.3d 116, 148 (Mo. banc 2005)). Appellate counsel

can strategically decide to “winnow out” non-frivolous arguments in favor of other reasonable

arguments. Murray, 511 S.W.3d at 446 (citing Mallett v. State, 769 S.W.2d 77, 84-85 (Mo. banc

1989) (internal citations omitted)). In evaluating counsel’s performance, we must “eliminate the

distorting effects of hindsight ... [and] evaluate the conduct from counsel’s perspective at the

time.” Strickland, 466 U.S. at 689.

                                            Prejudice

          To show prejudice, a movant must show a reasonable probability exists, “but for

counsel's unprofessional errors, the result of the proceeding would have been different.” Murray,

511 S.W.3d at 446 (quoting Deck v. State, 68 S.W.3d 418, 426 (Mo. banc 2002)). “A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Deck, 68 S.W.3d

at 426.




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                                                      Analysis3

         Movant argues the motion court’s findings and conclusions were clearly erroneous

because Appellate Counsel’s failure to assert the DWITS claim was unreasonable. Movant

argues Appellate Counsel should have asserted the DWITS claim because the claim of error was

obvious based on common law evidentiary rules for foundation and authentication. Movant also

argues the standard of review would have been favorable and the DWITS claim was properly

preserved by trial counsel, so Appellate Counsel should have been aware of it. Movant argues

his sentence would have been reduced had Appellant Counsel asserted the DWITS claim.

Movant argues Appellate Counsel erroneously substituted his own judgment for the judgment of

the appellate court at the time.

         The State responds Appellate Counsel’s decision not to assert the DWITS claim on direct

appeal was reasonable. The State claims the interpretation of Section 577.023.16 at the time of

the appeal was not so obvious any reasonably competent attorney would have asserted the

DWITS claim. The State argues the common law rule could have been eliminated by Section

577.023.16 and, based on Appellate Counsel’s testimony at the evidentiary hearing, Appellate

Counsel’s interpretation of the statute was reasonable.

         Movant has failed to show Appellate Counsel’s decision to forgo the DWITS claim on

appeal was deficient performance. The burden Movant must meet is to show the claim was “so

obvious from the record that a competent and effective lawyer would have recognized it and

asserted it.” Murray, 511 S.W.3d at 446. We presume a decision was reasonable strategy of an


3
  The State argues Movant’s brief raises issues not plead in his amended motion which limits us to plain error review
of Movant’s claims on appeal. We disagree. Movant specifically argued in the amended motion the DWITS
records could have been authenticated as business records but were not. Movant now argues the DWITS records
could have been authenticated in other ways. Movant’s claim preserved for appeal was the records were not
authenticated and there was no foundation. The specific ways the State could have authenticated the DWITS
records are irrelevant to our analysis. Movant’s point relied on is substantially similar to the claim in Paragraph 8(a)
supported by Paragraph 9(a) in the amended Rule 29.15 motion.


                                                           7
attorney. Johnson v. State, 406 S.W.3d 892, 899 (Mo. banc 2013). The motion court found

Appellate Counsel decided, after review of the law and the trial record, to forgo the DWITS

claim. Movant has failed to show the motion court should have found Appellate Counsel’s

decision to forgo this claim was deficient.         The motion court’s findings were not clearly

erroneous.

        Movant argues the basis for the DWITS claim was the well-established and rudimentary

common law requirement to authenticate documents.              We disagree.      Although foundation

customarily must be raised to authenticate documentary evidence, statutes can eliminate this

requirement. Hadlock v. Director of Revenue, 660 S.W2d 335, 337 (Mo. banc 1993). The

Supreme Court of Missouri found statutes can “eliminate the inconvenience and expense of live

but generally uncontested foundation testimony.” Id. Movant concedes this is a case of both

statutory interpretation and common law evidentiary issues, but Movant does not properly

characterize the possible confusion based on the language of Section 577.023.16.

        The effective version of Section 577.023.16 read:

        Evidence of a prior conviction, plea of guilty, or finding of guilt in an intoxication-
        related traffic offense shall be heard and determined by the trial court out of the hearing
        of the jury prior to the submission of the case to the jury, and shall include but not be
        limited to evidence received by a search of the records of the Missouri uniform law
        enforcement system, including criminal history records from the central repository or
        records from the driving while intoxicated tracking system (DWITS) maintained by the
        Missouri state highway patrol, or the certified driving record maintained by the
        Missouri department of revenue. After hearing the evidence, the court shall enter its
        findings thereon.

Section 577.023.16 (2012) (emphasis added).4

        At the time of the direct appeal, no appellate court had addressed the meaning of Section

557.023.16. Because driving records must be certified but DWITS and other records from the

4
 A statutory amendment adding the “DWITS” language and the “certified driving record” language to Section
577.023.16 became effective on August 28, 2010.


                                                   8
Missouri uniform law enforcement system had no certification requirement, the State, Movant’s

trial court, and Appellate Counsel all believed the language eliminated the need to authenticate

or lay foundation for DWITS records. Appellate Counsel testified his belief was based on his

reading of the statute and review of the trial record. The circuit court also mentioned it had

accepted DWITS records without authentication under Section 577.023.16 in previous cases.

Based on the record and the state of the law at the time of Movant’s direct appeal, the motion

court found Appellate Counsel’s reading of the statute was reasonable. This conclusion was not

clearly erroneous.

       Movant was required to show any reasonably competent attorney would have asserted the

claim of error on appeal. Meiners, 540 S.W.3d at 840-41. The motion court found Appellate

Counsel thoroughly investigated the record and reviewed the law relevant to the DWITS claim.

Appellate Counsel decided not to assert the DWITS claim based on a reasonable reading of the

statute. Such a decision by Appellate Counsel is virtually unchallengeable given the evidence of

his review and consideration of the relevant records and the law in this case. Zink, 278 S.W.3d at

176 (internal citations omitted) (quoting Strickland, 466 U.S. at 690). Based on Appellate

Counsel’s reasonable explanation of his interpretation of the statute, the DWITS claim was not

so obvious and clear as to suggest a reasonably competent attorney would have asserted it. See

Murray, 511 S.W.3d at 446 (internal citations omitted).

       After Movant’s direct appeal and the filing of his amended Rule 29.15 motion but before

the evidentiary hearing, the Western District decided State v. Pylypczuk, 527 S.W.3d 96 (Mo.

App. W.D. 2017). Pylypczuk was a case of first impression before the Appellate Courts of

Missouri interpreting Section 577.023.16. See generally Pylypczuk, 527 S.W.3d 96. Like in this

case, the State and the trial court in Pylypczuk believed the statutory language eliminated the




                                                9
need to authenticate DWITS records. Id. at 99. The Pylypczuk Court ruled the statute did not

eliminate the requirement to authenticate DWITS records at trial. Id. at 102. However, we must

avoid hindsight in deciding if the actions of counsel were reasonable. Strickland, 466 U.S. at

689; Anderson, 196 S.W.3d at 33.

        The motion court found Appellate Counsel’s interpretation of Section 577.023.16 was

reasonable. Movant has failed to show this findings was clearly erroneous. Appellate Counsel

could not have been expected to predict the clarification under Pylypczuk when another

reasonable interpretation existed. Meiners, 540 S.W.3d at 841 n.3.

        Movant argues the DWITS claim was properly preserved by trial counsel. The motion

court found the DWITS claim was preserved.          Preservation, however, does not require an

attorney to assert a claim on appeal. An appellate attorney does not have to “raise every

appealable issue[.]”Meiners, 540 S.W.3d at 838 (citing Storey, 175 S.W.3d at 148). Therefore,

Movant must show more than mere preservation. Movant must also show, at the time of the

appeal, the DWITS claim was “so obvious from the record that a competent and effective lawyer

would have recognized it and asserted it.” Murray, 511 S.W.3d at 446 (citing Reuscher, 887

S.W.2d at 591).

        Movant argues the standard of review was favorable for the DWITS claim. The standard

of review for a statutory interpretation claim is de novo. Pylypczuk, 527 S.W.3d at 99. However,

we already found the motion court did not err in finding Appellate Counsel was reasonable in his

reading of the statute. Based on Appellate Counsel’s reading of the statute, a de novo review of

the statute would not make the DWITS claim any more obvious as to require Appellate Counsel

to have asserted it.




                                               10
       Movant argues Appellate Counsel should have asserted the DWITS claim because it

would have resulted in a reduced sentence. After the Pylypczuk opinion, it is now clear the

DWITS claim would likely have resulted in a reduced sentence. However, Appellate Counsel

did not have the Pylypczuk opinion at his disposal and cannot be expected to predict the

clarification in the law or the result. Meiners, 540 S.W.3d at 841 n.3. At the time, Appellate

Counsel felt the DWITS claim would not have been successful and would, therefore, not have

reduced the sentence. Although hindsight clarifies the DWITS claim may have been more

effective, we cannot allow this knowledge to affect our view of Appellate Counsel’s actions

given the state of the law at the time of the appeal. See Anderson, 196 S.W.3d at 33.

       Movant argues Appellate Counsel erred in substituting his judgment for the judgment of

the court of appeals when deciding to omit the DWITS claim on direct appeal. We are troubled

by this argument. If an attorney makes a strategic decision based on a thorough investigation of

the law and the facts relevant to plausible opinions, then the decisions made are “virtually

unchallengeable.” Zink, 278 S.W.3d at 176 (internal citations omitted) (quoting Strickland, 466

U.S. at 690). Appellate Counsel, when deciding to assert a claim of error, is required to consider

how an appellate court would apply the relevant facts and interpret the relevant law to the

circumstances of the case. We find no merit to this portion of Movant’s argument.

       The use of judgment by Appellate Counsel is not the question before us. The question

before us is whether a reasonably competent attorney could have made the strategic choice to

omit the DWITS claim on direct appeal. Meiners, 540 S.W.3d at 836 (quoting McIntosh, 413

S.W.3d at 324). The motion court found this was a decision based on a reasonable interpretation

of the statute by Appellate Counsel. Movant has failed to show the motion court was clearly

erroneous in this finding.




                                                11
       When taken together, Movant’s arguments do not show the DWITS claim at the time of

Movant’s direct appeal was so obvious a reasonably competent attorney would have asserted it

on appeal. Id. Based on the record before us, we find the motion court did not err in finding

Appellate Counsel’s performance was effective on appeal.

       A movant must show counsel failed both prongs of the Strickland test, and if he fails to

satisfy either prong, we need not consider the other. Simmons, 955 S.W.2d at 746. Because

Movant failed to show deficient performance, we need not consider whether Appellate Counsel’s

decision caused prejudice in this case.

                                          Conclusion

       Because Movant failed to show Appellate Counsel’s performance was deficient given the

state of the law at the time of Movant’s direct appeal, we affirm the motion court’s denial of

Movant’s amended Rule 29.15 motion.




                                           _______________________________
                                           Philip M. Hess, Presiding Judge




Kurt S. Odenwald, J. and
Lisa P. Page, J. concur.




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