Ardrey v. State

SNYDER, Judge. Movant appeals from a judgment denying his Rule 27.26 motion following an eviden-tiary hearing. He had been convicted in a court-tried case of tampering with a motor vehicle, a felony, in violation of § 560.175.1, RSMo 1969 and sentenced to five years’ imprisonment as a second offender. Movant raises three points on appeal. He claims the trial court erred in not granting post-conviction relief because: (1) the state in the original trial failed to charge and prove movant possessed the intent necessary for the felony of tampering with a motor vehicle; (2) movant’s five year sentence was cruel and unusual punishment; and, (3) movant’s trial counsel was ineffective. The trial court’s judgment was not clearly erroneous and is affirmed. Rule 27.26(j). Movant’s first point relied on is that the trial court erred in not vacating his sentence because the state charged, tried and convicted movant of the felony offense of tampering with a motor vehicle, § 560.-175.1, RSMo 1969, although the facts charged and proved constituted a misdemeanor, § 560.175.2, RSMo 1969. The point has no merit. In essence, movant’s first point is that the evidence at his criminal trial was insufficient to support his conviction, a matter for direct appeal from the judgment finding him guilty of the offense. Hemphill v. State, 566 S.W.2d 200, 205[8] (Mo. banc 1978); Achter v. State, 545 S.W.2d 83, 84-85[2—4] (Mo.App.1976); Barker v. State, 505 S.W.2d 448, 449[1, 2] (Mo.App.1974). A Rule 27.26 proceeding may not be utilized as a substitute for direct appeal to challenge the sufficiency of the evidence to support movant’s conviction. Hemphill v. State, supra; Achter v. State, supra; Barker v. State, supra. Therefore the point is ruled against movant. Movant’s second point relied on is that the trial court erred in not vacating his five year sentence because it was cruel and unusual punishment. This point was not raised as a ground for relief in his Rule 27.26 motion nor presented to the trial court at any time during his post-conviction proceeding. An issue not raised in the post-conviction motion and not presented to the trial court for determination will not be reviewed by the appellate court. Nevills v. [861] State, 605 S.W.2d 202, 203[2, 3] (Mo.App. 1980); Whitney v. State, 585 S.W.2d 315, 316[2] (Mo.App.1979). Movant’s second point is ruled against him. Movant’s final point relied on is that the trial court erred in not granting movant post-conviction relief because movant’s trial counsel was ineffective. Movant’s contention is based upon counsel’s asserted failure to research the law to determine the state had not proven felonious tampering with a motor vehicle. The state did prove felonious tampering with a motor vehicle, and movant’s trial counsel cannot be charged with ineffectiveness in not perceiving or acting to correct a nonexistent error. See Day v. State, 607 S.W.2d 170, 172[2] (Mo.App.1980); Tollison v. State, 556 S.W.2d 455, 459[15] (Mo.App.1977). Movant’s final point also has no merit. The judgment is affirmed. CRIST, P. J., and SMITH, J., concur.