"Absent a compelling reason to call the judge as a witness at the post-conviction hearing, the judge is not disqualified from ruling on the motion for post-conviction relief." Wright-El v. State, 890 S.W.2d 664, 672 (Mo. App. 1994). Forcing the judge's recusal by endorsing the judge as a witness frustrates an important purpose of the post-conviction rules, namely, "avoiding delay in the processing of prisoner's claims and preventing litigation of stale claims."
The testimony of a trial or sentencing judge is unnecessary when the allegations of impropriety relate to events that are fully reflected in the record. Wright-El v. State, 890 S.W.2d 664, 672 (Mo.App. 1994); Logan v. State, 712 S.W.2d 9, 11 (Mo.App. 1986); Schroder v. State, 561 S.W.2d 734, 735 (Mo.App. 1978). Point II is denied.
Pursuant to Rule 29.15, any Rule 27.26 motions that were pending on January 1, 1988, continued to be governed by the provisions of Rule 27.26 in effect on the date the motion was filed. Wright-El v. State, 890 S.W.2d 664, 668 (Mo.App.E.D.1994). Successive and untimely motions are prohibited under Rule 29.15. Schleeper v. State, 982 S.W.2d 252, 253 (Mo. banc 1998).
It has been long held that the Movant has the burden of proof to show to the Court that Movant's attorney was ineffective and failed to render such services that conform to a degree of skill and competence of a reasonable, competent attorney. See Wright-El v. State, 890 S.W.2d 664 (Mo.App.E.D. 1994). The Court after reviewing the entire record finds and concludes the Movant's plea attorney, Mary Dilks, was not ineffective and that point is denied.
Further, whether a trial court has jurisdiction does not depend upon the sufficiency of an information. Wright-El v. State, 890 S.W.2d 664, 669 (Mo.App. E.D. 1994). When a defendant challenges the sufficiency of an information post-verdict, the information will be considered "insufficient" only if it is so defective that either "it does not by any reasonable construction charge the offense of which the defendant was convicted" resulting in defendant having no notice of the offense charged or "the substantial rights of the defendant to [adequately] prepare a defense and plead former jeopardy in the event of acquittal are prejudiced."
Id. at 365. See alsoMcDaris v. State, 843 S.W.2d 369, 374 (Mo.banc 1992), and Wright-El v. State, 890 S.W.2d 664, 668 (Mo.App.E.D. 1994), which indicate that generally, invalid convictions may not be used to enhance punishment. Appellant also contends that the order setting aside the December 23, 1992 docket entry was erroneous.
Absent a compelling reason to call the judge as a witness at a post-conviction hearing, the judge is not disqualified from ruling on the motion. Wright-El v. State, 890 S.W.2d 664, 672 (Mo.App. 1994). A judge who is a material witness to relevant facts, however, is compelled to recuse himself for fundamental fairness as guaranteed by state and federal due process clauses.
We are entitled to consider our records and that of the court below, as well as the papers filed below by the parties, in determining whether Mr. Cooper should be permitted to proceed in forma pauperis.See Muza, 769 S.W.2d at 175; In re Jacobs , 794 S.W.2d 199, 202 (Mo. banc 1990); Wright-El v. State , 890 S.W.2d 664, 672 (Mo. App. 1994) (court entitled to take judicial notice of its own records). The only matter which we hold is res judicata based on the dismissal of the appeal of the prior state court action is the right of Mr. Cooper to file suit pending the determination of the federal action, for that is the only issue determined in the prior state court action.
Appellate review is limited to determining whether a reason able and disinterested bystander would reasonably question the impartiality of the judge. Wright-el v. State , 890 S.W.2d 664, 671 (Mo. App. 1994). The judge is entitled to a presumption that he will not undertake to preside over a hearing in which he cannot be impartial.
Appellate review of a Rule 24.035 motion is limited to a determination of whether the court's holding was clearly erroneous. Rule 24.035(j); Baird v. State, 906 S.W.2d 746, 749 (Mo. App. 1995); Wright — El v. State, 890 S.W.2d 664, 670 (Mo. App. 1993). To reverse, this court must be left with the firm impression that a mistake has been made after a review of the entire record.