Missouri courts have previously found counsel not ineffective under these circumstances. SeeBright v. State, 4 S.W.3d 568, 571 (Mo.App.S.D. 1999) (trial counsel was not ineffective for failing “to adequately advise” movant on consequences of accepting or rejecting State's plea offer, when there was evidence in record that trial counsel presented plea offer to movant and they discussed it, even though trial counsel did not use the words, “you should take this plea”).Second, Movant has failed to show prejudice.
The prejudice necessary to succeed on a claim of ineffective assistance of counsel "is shown where 'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Bright v. State, 4 S.W.3d 568, 569 (Mo. App. S.D. 1999) (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). In the context of a rejected plea agreement, satisfying this test requires the movant to show "there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that were in fact imposed."
This Court's review of counsel's performance is "highly deferential" and the presumption that "counsel's conduct falls within the wide range of reasonable professional assistance" serves to "eliminate ‘the distorting effects of hindsight.’ " Bright v. State , 4 S.W.3d 568, 569 (Mo. App. S.D. 1999) (quoting Strickland , 466 U.S. at 689, 104 S.Ct. 2052 ). The fact that trial counsel believed her trial strategy would succeed, even though it did not ultimately persuade the trial court, does not necessarily mean that her advice to Movant regarding the case's strengths and weaknesses rendered her performance ineffective under the Strickland performance standard.
Missouri courts have previously found counsel not ineffective under these circumstances. SeeBright v. State, 4 S.W.3d 568, 571 (Mo.App.S.D. 1999) (trial counsel was not ineffective for failing “to adequately advise” movant on consequences of accepting or rejecting State's plea offer, when there was evidence in record that trial counsel presented plea offer to movant and they discussed it, even though trial counsel did not use the words, “you should take this plea”).Second, Movant has failed to show prejudice.
Thus, our "scrutiny of counsel's performance must be highly deferential," indulging "a strong presumption" that counsel's conduct was reasonable, and making "every effort . . . to eliminate the distorting effects of hindsight . . . and to evaluate the conduct from counsel's perspective at the time." Chaney, 73 S.W.3d at 847 (quoting Strickland, Abb U.S. at 689, 104 S.Ct. 2052, and Bright v. State, 4 S.W.3d 568, 569 (Mo.App. 1999)). fail[ed] to acknowledge that the victim's testimony, though not always consistent, was strongly corroborated by the DNA evidence.
"Our 'scrutiny of counsel's performance must be highly deferential,' and the strong presumption serves to eliminate 'the distorting effects of hindsight.'" Bright v. State, 4 S.W.3d 568, 569 (Mo.App. 1999) (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984)). To prevail on a claim of ineffective assistance of counsel based on the failure of counsel to investigate and call a witness, Movant must show (1) that trial counsel knew or should have known of the witness's existence; (2) that the witness could have been located through reasonable investigation; (3) that the witness would have testified if called; and (4) that the witness's testimony would have provided a viable defense.
When an appellate court reviews a Rule 29.15 case, it indulges a strong presumption that defense counsel's conduct falls within the wide range of reasonable professional assistance. Bright v. State, 4 S.W.3d 568, 569[1] (Mo.App. 1999). "Our 'scrutiny of counsel's performance must be highly deferential,' and the strong presumption serves to eliminate the 'distorting effects of hindsight.'"
Based on the Strickland standard, when reviewing a Rule 29.15 case, "we indulge in a strong presumption that defense counsel's conduct falls within the wide range of reasonable professional assistance." Bright v.State, 4 S.W.3d 568, 569[1] (Mo.App. 1999). "Our 'scrutiny of counsel's performance must be highly deferential,' and the strong presumption serves to eliminate the 'distorting effects of hindsight.'"
Based on the Strickland standard, when reviewing a Rule 29.15 case, "we indulge in a strong presumption that defense counsel's conduct falls within the wide range of reasonable professional assistance." Bright v. State, 4 S.W.3d 568, 569[1] (Mo.App. 1999). "Our `scrutiny of counsel's performance must be highly deferential,' and the strong presumption serves to eliminate the `distorting effects of hindsight."
First, Coke and Gaffney are not binding on this court. See Bright v. State, 4 S.W.3d 568, 571 (Mo.App. 1999). Second, even if we were to inclined to follow Coke and Gaffney — a choice we need not and do not make — this is not a case "where the evidence to convict rested so heavily on the testimony of one witness," as in Coke, 339 F.2d at 186.