SCHERRER v. STATE (2026)

Introduction

Melvin J. Scherrer (“Movant”) appeals the motion court's judgment denying his amended Rule 29.15 ¹ motion for post-conviction relief (“PCR”). Movant raises two points on appeal. In Point One, Movant argues the motion court clearly erred in denying his amended PCR motion because trial counsel (“Counsel”) was ineffective for failing to object to the State's evidence that Movant belonged to a motorcycle club because the evidence was highly prejudicial and inflammatory. In Point Two, Movant contends the motion court clearly erred in denying his amended PCR motion because Counsel was ineffective for failing to move sooner to dismiss the charges against Movant in violation of his right to a speedy trial. For each point on appeal, Movant asserts that, but for Counsel's deficient performance, there is a reasonable probability the outcome of his trial would have been different.

This Court denies both points on appeal because Movant attempts to relitigate issues previously reviewed on direct appeal.

Accordingly, the motion court's judgment is affirmed.

Background

In December 2012, Victim attended Movant's multi-day “tattoo party.” At some point during the party, Movant believed Victim had a gun and planned to “rob and kill” him. Due to this belief, Movant hit Victim multiple times with a baseball bat and taped his hands behind his back. After retrieving a large toolbox from the bed of a truck, Movant, with the help of another individual, placed Victim in the toolbox. Movant then covered Victim's entire head with tape, such that “you couldn't see [any] flesh at all[,]” and closed the toolbox. For roughly ten to twenty minutes, Victim made noises and kicked the inside of the toolbox. Eventually, Victim went quiet.

Movant and two others placed the toolbox, with Victim's body, in the truck bed. Then, Movant and one of the individuals drove the truck around for about two hours until deciding where to dispose of Victim's body. Movant ultimately stopped at a vacant house with several septic tanks, and he and the other individual put Victim's body into one of the tanks. Movant made another stop to discard some of Victim's property.

Several days later, Victim's wife filed a missing persons report and an investigation into Victim's whereabouts began. Victim's body was not discovered until July 2013, when the individual who helped Movant dump Victim's body led police to the septic tank. The forensic pathologist who performed Victim's autopsy determined the manner of death to be homicide and explained Victim's nose and mouth were sufficiently covered to have asphyxiated him.

The State charged Movant with second-degree murder, armed criminal action, felonious restraint, and abandonment of a corpse.² In February 2022, a jury found Movant guilty of all charges. The trial court sentenced Movant to life imprisonment for second-degree murder, fifteen years’ imprisonment for armed criminal action, seven years’ imprisonment for felonious restraint, and four years’ imprisonment for the abandonment of a corpse, with all sentences to be served consecutively. In addition, the trial court imposed a $5,000 fine on both the felonious restraint and abandonment of a corpse counts.

Movant timely appealed his convictions, alleging, in relevant part, he was denied his right to a speedy trial and the trial court erred in admitting thirteen photographs with the logo of a motorcycle club because the photographs suggested he was associated with criminal activity. State v. Scherrer, 673 S.W.3d 899, 908, 915 (Mo. App. E.D. 2023). As to Movant's first claim, this Court weighed the applicable factors and held Movant's right to a speedy trial was not violated. Id. at 909–13. Additionally, this Court reviewed Movant's claim concerning the admission of the thirteen photographs for plain error. Id. at 915–16. This Court found no error, plain or otherwise, had occurred. Id. at 916. Therefore, this Court affirmed Movant's convictions. Id. at 917.

On December 11, 2023, Movant timely filed his pro se PCR motion. Post-conviction counsel entered his appearance on December 12, 2023, and timely filed an amended PCR motion on April 9, 2024. The amended PCR motion asserted five claims of ineffective assistance of counsel. Relevant to this appeal, Movant's amended PCR motion asserted Counsel was ineffective because he failed to: (1) object to the admission of evidence of Movant's membership in a motorcycle club, and (2) timely move to dismiss the underlying charges based on the denial of Movant's right to a speedy trial.

The motion court held an evidentiary hearing on Movant's claims on April 4, 2025. Counsel testified in person and Movant testified via deposition. On May 21, 2025, the motion court found Movant's aforementioned claims “constitute[ ] an impermissible second attempt to address a point made and ruled upon on appeal” and denied Movant's amended PCR motion.

This appeal follows.

General Caselaw

Under Rule 29.15(a), individuals can file a PCR motion alleging, among other things, “that the conviction or sentence imposed violates the constitution and laws of this state or the constitution of the United States, including claims of ineffective assistance of trial and appellate counsel[.]” Mack v. State, 716 S.W.3d 260, 262 (Mo. banc 2025) (quoting Rule 29.15(a)). “It is well established that issues decided on direct appeal may not be relitigated in a PCR motion under a theory of ineffective assistance of counsel; a Rule 29.15 motion cannot be used to obtain review of matters which were or should have been raised on direct appeal.” Burst v. State, 731 S.W.3d 888, 895 (Mo. App. E.D. 2026) (quoting Voss v. State, 570 S.W.3d 184, 197 (Mo. App. E.D. 2019)).

Analysis

Point One: Evidence of Motorcycle Club

In Point One, Movant argues the motion court clearly erred in denying his claim that Counsel was ineffective for failing to object to evidence of Movant's membership in a motorcycle club. Specifically, Movant argues a reasonably competent attorney would have objected to this highly prejudicial and inflammatory evidence, and he was thereby prejudiced.

Movant urges this Court to “revisit whether this issue is foreclosed by its prior” plain error review of the issue on direct appeal. Whether this Court can examine Movant's ineffective-assistance-of-counsel claim depends on how Movant's plain error claim was resolved on direct appeal. See id. at 896. An appellate court may resolve an unpreserved error on appeal by:

1. Declining to exercise its discretionary authority to review the plain error;

2. Conducting plain error review and concluding that no error occurred at all;

3. Conducting plain error review and concluding that an error occurred, but it was harmless and caused no prejudice to the appellant;

4. Conducting plain error review and concluding a prejudicial error occurred but denying relief because the prejudice to appellant does not rise to the level of a manifest injustice or miscarriage of justice; or

5. Conducting plain error review and granting relief because the error caused manifest injustice or miscarriage of justice to occur.

Id. “A movant may relitigate claims that fall under the fourth category or litigate claims for the first time under the first category[,]” but “may not relitigate claims under the second or third category.” Id.

On direct appeal, Movant argued the trial court erred in admitting photographs containing the logo of a motorcycle club because the photographs suggested Movant was associated with criminal activity. Scherrer, 673 S.W.3d at 916. This Court reviewed Movant's claim under the plain error framework and held the photographs at issue “merely represented a vague and indefinite reference to [Movant's] potential affiliation with a motorcycle club, and, therefore, the [p]hotographs did not constitute inadmissible evidence of uncharged crimes or other bad acts by [Movant].” Id. Thus, this Court concluded “the trial court did not err, plainly or otherwise, in admitting the [p]hotographs.” Id. Because this Court conducted plain error review and found no error, Movant's claim falls under the second category. See Burst, 731 S.W.3d at 896. As such, Movant is precluded from relitigating the same issue in a PCR proceeding. See id.

Point One is denied.

Point Two: Speedy Trial

In Point Two, Movant contends the motion court clearly erred in denying his claim that Counsel was ineffective for failing to move sooner to dismiss Movant's case in violation of his right to a speedy trial. Movant acknowledges this Court reviewed the alleged violation of his right to a speedy trial on direct appeal. Yet, Movant maintains this Court can still review his ineffective-assistance-of-counsel claim because this Court, on direct appeal, did not address whether Counsel should have moved to dismiss the matter soon after he filed his motion for speedy trial. We disagree.

Essentially, Movant argues that, in reviewing his speedy-trial violation claim, this Court did not consider whether his right to a speedy trial was violated sometime after Counsel filed the motion for a speedy trial but before he filed the motion to dismiss. But considering an earlier date does not change the fact that, at the core of his PCR claim, Movant attempts to relitigate the same issue that was raised on direct appeal: whether his constitutional right to a speedy trial was violated.³ “This Court will not review the same underlying claim for a second time.” Mack, 716 S.W.3d at 263 (quoting Zink v. State, 278 S.W.3d 170, 191 (Mo. banc 2009)).

On direct appeal, this Court balanced the Barker factors ⁴ to determine whether Movant's right to a speedy trial was violated. Scherrer, 673 S.W.3d at 909–13. This Court ultimately held “the presumption of prejudice is outweighed under the circumstances of this case and [Movant's] Sixth Amendment right to a speedy trial was not violated.” Id. at 913.

Since this Court previously reviewed the issue of Movant's speedy trial violation on direct appeal, Movant cannot “seek to relitigate the same claim in [a] post[-]conviction proceeding.” Mack, 716 S.W.3d at 263. It is well established that “[a] post-conviction motion cannot be used as a ․ second appeal.” Id. (quoting Zink, 278 S.W.3d at 191). Accordingly, the motion court correctly denied post-conviction relief. See id. (finding the motion court correctly denied post-conviction relief because movant's PCR claim was “raised in and decided in his direct appeal.”).

Point Two is denied.

Conclusion

For the reasons set forth above, the motion court's judgment is affirmed.

FOOTNOTES

1.   All references are to Missouri Supreme Court Rules (2025).

2.   Initially, Movant was also charged with tampering with physical evidence, but the charge was dismissed prior to trial.

3.   This is made evident by Movant's argument, in which he restates the procedural history of his case, sets forth the applicable factors for reviewing a speedy-trial violation claim, and contends “[a] delay of over eight years from arrest to trial is presumptively prejudicial.”

4.   “Determining whether a defendant's right to a speedy trial has been violated requires a balancing of four factors: (1) the length of delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) the prejudice to the defendant resulting from the delay.” State v. Cothran, 715 S.W.3d 603, 619 (Mo. App. E.D. 2025) (quoting State v. Sisco, 458 S.W.3d 304, 313 (Mo. banc 2015)). These factors are referred to as the “Barker factors.” Scherrer, 673 S.W.3d at 909.

Michael S. Wright, Presiding Judge

Virginia W. Lay, Judge and Kathleen S. Hamilton, Judge concur.