Opinion
No. 46641.
September 27, 1983. Motion for Rehearing and/or Transfer to Supreme Court Denied November 15, 1983.
APPEAL FROM THE CIRCUIT COURT, AUDRAIN COUNTY, PATRICK HORNER, J.
Carla Wood Tanzey, Mexico, for appellant.
John Ashcroft, Atty. Gen., John M. Morris, Asst. Atty. Gen., Jefferson City, for respondent.
Following an evidentiary hearing, the trial court denied movant's Rule 27.26 motion. We affirm.
Movant alleges the judge at his criminal trial: (1) should have ordered a mental examination pursuant to Chapter 552 RSMo 1978; (2) did not provide an impartial jury; (3) improperly limited the number of peremptory challenges to the jury panel; and (4) improperly refused to sever the criminal charges against movant. A jury convicted movant of first degree murder and kidnapping. The convictions and sentences were affirmed in State v. Mahaney, 625 S.W.2d 112 (Mo. banc 1981).
All of movant's Rule 27.26 allegations above lack merit because such issues could or should have been raised on direct appeal as matters concerning trial error. Rule 27.26(b)(3). Furthermore, the record shows no prejudice to defendant resulting from the alleged errors.
Movant also claims he received ineffective assistance of counsel. See, Seales v. State, 580 S.W.2d 733, 735 (Mo. banc 1979). The record reveals the matters upon which movant claims his counsel was ineffective were matters of trial strategy. Counsel is not to be judged ineffective based on such grounds. Eldridge v. State, 592 S.W.2d 738, 741 (Mo. banc 1979).
Finally, movant claims his sentence was unconstitutionally imposed in that he received separate punishment for one crime and its lesser included offense. This issue was resolved against movant on direct appeal. State v. Mahaney, 625 S.W.2d at 114-15.
The judgment of the trial court is based on findings of fact which are not clearly erroneous and no error of law appears. An extended opinion would have no precedential value.
Judgment affirmed in accordance with Rule 84.16(b).
DOWD, C.J., and REINHARD, J., concur.