Opinion
No. ED 84584.
December 7, 2004.
Appeal from the Circuit Court of St. Louis County; Colleen Dolan, Judge.
Timothy Joseph Forneris, St. Louis, MO, for appellant.
Deborah Daniels, Daniel Neal McPherson, Jefferson City, MO, for respondent.
Before GARY M. GAERTNER, SR., P.J., SHERRI B. SULLIVAN, J., and BOOKER T. SHAW, J.
ORDER
Lajuan Hayes (Movant) appeals from a judgment denying his request for post-conviction relief under Rule 29.15 without an evidentiary hearing. Movant claims ineffective assistance of trial counsel for failing to request that the trial court include the second paragraph from MAI-CR3d 319.02 in the first-degree assault verdict director and for failing to submit a jury instruction on second-degree assault based upon sudden passion arising out of adequate cause. We have reviewed the briefs of the parties and the record on appeal and conclude that because Movant's motion did not allege facts, not refuted by the record, showing that trial counsel's performance did not conform to the degree of skill, care and diligence of a reasonably competent attorney, Movant was not entitled to an evidentiary hearing, and the motion court's findings of fact and conclusions of law are not clearly erroneous. State v. Brooks, 960 S.W.2d 479, 497 (Mo. banc 1997); Rule 29.15(k). An extended opinion would have no precedential value. We have, however, provided a memorandum setting forth the reasons for our decision to the parties for their use only. We affirm the judgment pursuant to Missouri Rule of Civil Procedure 84.16(b).
All rule references are to Mo.R.Crim.P. 2004, unless otherwise indicated.