FOSTER v. STATE (2026)

Joseph Foster (“Foster”) appeals from the motion court's judgment denying his Rule 29.15 ¹ post-conviction motion. Foster argues that the motion court clearly erred in denying his claim that he was deprived of his Sixth Amendment right to effective assistance of counsel because his trial counsel ² had an actual conflict of interest that adversely affected the adequacy of his representation. Foster's allegation of an actual conflict of interest relied on the fact that trial counsel charged a flat fee that Foster claimed was insufficient for the work required. Finding no error, we affirm.

Factual and Procedural Background 3

In 2021, the State charged Foster with statutory rape in the second degree alleging that Foster “had sexual intercourse with [the victim] and at that time [the victim] was less than seventeen years old and [Foster] was twenty-one years of age or older.” At that time, Foster was represented by trial counsel in proceedings before the Child Abuse and Neglect Review Board. Trial counsel told Foster about the criminal charge during a telephone conversation and offered to also represent him in the criminal matter for an additional flat fee. Trial counsel explained the representation contract to Foster over the telephone. The representation contract provided that, in exchange for $12,000, trial counsel would represent Foster in the criminal matter, regardless of the number of hours trial counsel worked on the case. The agreement further provided that, even though trial counsel would be representing Foster on a flat-fee basis, trial counsel would work against the $12,000 fee at a rate of $350 per hour so that, if Foster terminated trial counsel's representation prior to the flat fee being fully earned, Foster would be entitled to a refund of the portion of the fee not yet earned. Though Foster never signed the representation contract, trial counsel uploaded the document to an online portal Foster could access.

Shortly before trial on Foster's criminal charge, trial counsel met with Foster to discuss a plea offer. Trial counsel believed the plea offer was favorable and encouraged Foster to accept the offer because, in exchange for pleading guilty to the crime charged, Foster would receive a suspended execution of sentence and would not be incarcerated, provided he complied with the terms of probation. Trial counsel also believed that the evidence against Foster was compelling, namely that Foster had a fake identification card that listed him as much younger than his actual age of thirty-one years old and that the victim had an abortion at Foster's encouragement. Foster rejected the offer because it would require him to plead guilty to a crime for which he maintained his innocence. Foster did not deny having sexual intercourse with the victim but denied that he did so when the victim was younger than seventeen. At that point, trial counsel explained the difference between a bench trial and a jury trial and recommended a bench trial. Foster elected to proceed to a bench trial.

Because the State's proof of Foster's criminal act was entirely dependent on the victim's testimony, trial counsel's strategy was to question the victim's credibility. Prior to trial, trial counsel asked Foster to provide any evidence that could aid in this defense. Trial counsel testified that Foster provided “lots of pictures from Facebook [and] lots of text messages,” but none of the evidence definitively established the victim's age at the time she and Foster had sexual intercourse. Trial counsel believed that the text messages, if admitted, would cause more harm than good because they demonstrated that the victim was a young girl who had been “hurt by a 31-year-old” man and was upset that Foster had been “stalking” her social media accounts. Trial counsel did admit one photograph from Facebook into evidence at trial but chose not to admit a comment on that photograph by the victim's mother that Foster and the victim were “just good friends.” Trial counsel explained that the comment was hearsay that would have required him to establish foundation through the victim's mother who was “very combative” and unlikely to cooperate.

Instead of relying on the social media and digital evidence provided by Foster, trial counsel chose to emphasize discrepancies between the victim's deposition and trial testimony. At trial, the victim testified that she first had sexual intercourse with Foster in July 2018 when she was sixteen years old. However, during her deposition, the victim struggled to identify when events happened or her age or grade when those events occurred. The victim testified during her deposition that her relationship with Foster began in April 2019. If true, then the victim was seventeen, not sixteen years old when she first had sexual intercourse with Foster. Foster's testimony at trial was generally consistent with the victim's deposition testimony. Foster admitted that he had sexual intercourse with the victim, but said that did not take place until October 2019, when the victim was seventeen years old.

The trial court found Foster guilty of statutory rape in the second degree, ordered a sentencing assessment report, and set a sentencing hearing. Foster filed a motion for new trial in which he argued that “new evidence ․ has come to light that was not known to the Defense (or the State) at the time of trial.” Foster attached as an exhibit to the motion a Snapchat message that Foster or his friend provided trial counsel after trial. According to Foster, the Snapchat message was written by the victim and stated, “F*** U JOSE!!! Idc we didn't f*** when I was 16. Ill say wtf I want and nobody will believe you!”

Trial counsel exchanged emails with the State about the Snapchat message. In that exchange, the State advised that it had reached out to the victim who had now produced previously unseen text messages sent from Foster that contained references to having sexual intercourse with the victim when she was sixteen years old. The State informed trial counsel that if Foster continued to pursue the newly discovered evidence claim based on the Snapchat message, the State would ask the victim about the newly discovered text messages.

Trial counsel characterized the text messages as “pretty damning.” Trial counsel determined that the best course of action would be to abandon Foster's claim of newly discovered evidence and focus instead on mitigating Foster's sentence as much as possible. As such, trial counsel decided to “let the court decide what to do with [the Snapchat] message.”

At the beginning of the sentencing hearing, trial counsel asked the trial court to “take a good look at” the Snapchat message (which was already before the court as an exhibit to the motion for new trial) but did not otherwise address the Snapchat message through testimony. The State called the victim as a witness, though, and she testified about the newly discovered text messages. Trial counsel did not object to the victim's testimony. The trial court denied the motion for new trial and then sentenced Foster to seven years’ incarceration in the Department of Corrections under the Sex Offender Assessment Unit pursuant to section 559.115.⁴ The trial court noted that, if Foster successfully completed that program, it would consider placing Foster on probation for five years with strict supervision conditions.

Foster timely appealed his conviction to this Court but dismissed his appeal before briefing. See State v. Foster, No. WD85428. Foster filed a timely pro se Rule 29.15 motion for post-conviction relief, and then his retained counsel filed an amended Rule 29.15 motion in June 2023 (“amended motion”).⁵ The amended motion asserted three claims of ineffective assistance of counsel: (1) trial counsel “failed to present crucial impeachment evidence of the State's witnesses at Mr. Foster's ‘he-said/she-said’ trial,” particularly the digital evidence that Foster provided to trial counsel before trial; (2) trial counsel “fail[ed] to effectively litigate Mr. Foster's motion for new trial” in that trial counsel failed to formally offer the Snapchat message discovered after trial but before sentencing into evidence and failed to object to the victim testifying at the sentencing hearing about text messages Foster sent to her when she was sixteen; and (3) trial counsel had an “[i]mpermissible conflict of interest” in that trial counsel agreed to represent Foster for a “nonrefundable flat fee,” which gave trial counsel “no incentive to do any more than the bare minimum [amount] of work,” thereby affecting the adequacy of their representation. With respect to the third claim, the amended motion identified three examples of inadequate representation: (1) trial counsel's failure to research how the impeachment evidence Foster provided could be used at trial; (2) trial counsel's failure to adequately promote Foster's motion for new trial by admitting the Snapchat message and objecting to the victim's testimony; and (3) trial counsel's encouragement that Foster proceed to a bench trial instead of a jury trial.

Following an evidentiary hearing during which trial counsel and Foster testified, the motion court issued its judgment denying each of the claims set forth in the amended motion (“Judgment”). With respect to Foster's claim that trial counsel was ineffective for failing to present impeachment evidence, the Judgment credited trial counsel's testimony as credible; concluded that the decision constituted reasonable trial strategy; and found that the failure to present the impeachment evidence was not prejudicial because it would have had no impact on the trial court's decision to find Foster guilty. The Judgment found similarly with respect to Foster's second claim for relief, and determined that trial counsel's decision not to offer the Snapchat message into evidence was reasonable trial strategy because trial counsel questioned the authenticity of the Snapchat message and had an ethical duty not to seek admission of false evidence; that trial counsel's decision not to object to the victim's testimony at the outset of the sentencing hearing was reasonable because an objection was unlikely to be successful; and that, even if those failures by trial were not reasonable trial strategy, Foster suffered no prejudice. With respect to Foster's third claim of ineffective assistance of counsel, the Judgment noted that no Missouri court has ever found a flat-fee arrangement to create a conflict of interest and concluded that Foster failed to prove that trial counsel had an actual conflict of interest that adversely affected the adequacy of trial counsel's representation. The motion court found that there is nothing inherently problematic with a flat-fee arrangement in a criminal proceeding; that Foster's flat-fee contract was not nonrefundable as alleged by Foster; and that trial counsel credibly testified that the amount they charged Foster had no impact on their conduct at any point during their representation of him.

Foster appeals. Additional facts will be provided as relevant in the analysis below.

Standard of Review

Our review of the motion court's denial of a Rule 29.15 motion for post-conviction relief is “limited to a determination of whether the findings and conclusions of the [motion] court are clearly erroneous.” Rule 29.15(k). “[A] judgment is clearly erroneous when, in light of the entire record, the court is left with the definite and firm impression that a mistake has been made.” Young v. State, 738 S.W.3d 94, 99 (Mo. banc 2026) (quoting Wood v. State, 728 S.W.3d 416, 423 (Mo. banc 2026)). In conducting our review, we presume the motion court's judgment is correct and defer to the motion court's assessment of the credibility of evidence before it. Armstrong v. State, 734 S.W.3d 381, 384 (Mo. App. W.D. 2026). The appellant carries the burden to establish by a preponderance of the evidence that the motion court committed clear error. Lee v. State, 735 S.W.3d 669, 672 (Mo. App. W.D. 2026).

Analysis

Foster's appeal raises a single point for our review. Foster argues that the motion court clearly erred in denying the third claim for relief set forth in his amended motion because the motion court misapplied the law.⁶ Foster asserts that, contrary to the motion court's determination, he received ineffective assistance of counsel in that trial counsel had an actual conflict of interest with Foster's personal interests because trial counsel charged “a small flat fee for a case that [would] take many more hours than the equivalent hourly fees” and because the flat-fee agreement was non-refundable. Foster's point on appeal alleges that an actual conflict of interest does not require a Strickland ⁷ prejudice showing and instead requires proof that the conflict had an adverse impact on the adequacy of his representation. Foster's point on appeal claims that an adverse impact on the adequacy of his representation was shown by trial counsel “doing the least work they could,” including “failing to research the admissibility of certain impeachment evidence or how to properly litigate his motion for a new trial.”

The Sixth Amendment guarantees a criminal defendant's right to effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This right applies equally to all criminal defendants, whether they are represented by appointed or retained counsel. Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

Ordinarily, a post-conviction claim of ineffective assistance of counsel requires a post-conviction movant to prove that “ ‘counsel failed to exercise the customary skill and diligence of a reasonably competent attorney under similar circumstances’ and this ‘deficient performance prejudiced’ the defendant.” Young, 738 S.W.3d at 100 (quoting Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006)). However, the “pleading requirements are quite different if the [post-conviction] movant's claim of ineffective assistance of counsel is predicated on an actual conflict of interest.” DePriest v. State, 510 S.W.3d 331, 338 (Mo. banc 2017). A conflict of interest deprives a criminal defendant of his Sixth Amendment right to counsel if “an actual conflict of interest adversely affected his lawyer's performance.” Cuyler, 446 U.S. at 348, 100 S.Ct. 1708. In such a case, “[p]rejudice is presumed, not only because the right to unconflicted counsel is an essential aspect of the Sixth Amendment right to counsel but also because a requirement that the movant plead and prove actual prejudice in the normal Strickland sense would be impossible to meet in most (if not all) cases in which counsel had an actual conflict of interest.” DePriest, 510 S.W.3d at 339.

Thus, where a conflict of interest is alleged as the basis for a claim of ineffective assistance of counsel, a post-conviction movant must “show an actual conflict of interest, meaning one that ‘adversely affected counsel's performance.’ ” Id. at 340 (quoting State v. Roll, 942 S.W.2d 370, 377 (Mo. banc 1997)). This “standard is not properly read as requiring inquiry into actual conflict as something separate and apart from adverse effect. An ‘actual conflict,’ for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel's performance.” Id. at 340-41 (quoting Mickens v. Taylor, 535 U.S. 162, 172 n.5, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002)). Stated another way, trial counsel's alleged or potential conflict of interest will not per se support a claim of ineffective assistance of counsel, and instead, a movant must demonstrate that the potential conflict of interest is an actual conflict of interest because it adversely affected the adequacy of counsel's representation. Id. at 341 (holding that “movant must plead facts from which the motion court could find that counsel acted under an actual--not merely potential--conflict of interest that adversely affected the adequacy of counsel's representation”).

“For a proper understanding of what is meant by ‘adversely affected,’ the Court looks to Cuyler, from which the requirement that an alleged conflict of interest must have ‘adversely affected counsel's performance’ originates.” Id. at 340. Cuyler held:

In order to establish a violation of the Sixth Amendment, a defendant ․ at trial must demonstrate that an actual conflict of interest adversely affected his lawyer's performance․

․

․ But until a defendant shows that his counsel actively represented conflicting interests, he has not established the constitutional predicate for his claim of ineffective assistance.

446 U.S. at 348-50, 100 S.Ct. 1708 (emphasis added). Active representation of conflicting interests is not established by speculative hypotheticals and must instead be manifested by actual acts or omissions of trial counsel that reflect the representation of competing interests. See DePriest, 510 S.W.3d at 338 (“[A]n actual, relevant conflict of interests [arises] if, during the course of the ․ representation, [competing] interests ․ diverge with respect to a material factual or legal issue or to a course of action.”) (quoting State v. Chandler, 698 S.W.2d 844 n.11 (Mo. banc 1985)).

Potential conflicts of interest that may rise to the level of actual conflicts of interest often exist where an attorney represents more than one defendant in a criminal proceeding. However, as explained above, “multiple representation” alone is insufficient to establish an actual conflict of interest. Cuyler, 446 U.S. at 350, 100 S.Ct. 1708 (holding that multiple representation, by itself, is simply a “possible conflict of interest” that does not alone “impugn a criminal conviction”). Rather, it remains the movant's burden to establish that counsel “actively represented conflicting interests.” Id.; see DePriest, 510 S.W.3d at 333-34 (holding that sibling co-defendants were entitled to a hearing on their claim of actual conflict of interest where they were set to be tried separately but alleged they were advised to plead guilty to disparate charges by the same attorney based on advice that suggested the co-defendants had demonstrably competing interests).

Potential conflicts of interest that may rise to the level of actual conflicts of interest may also exist where the alleged competing interests are between those of trial counsel and their client. But, as in multiple representation scenarios, a potential conflict between trial counsel's interests and the defendant's interests will not rise to the level of an actual conflict of interest unless trial counsel actively represented the competing interests, meaning the competing interests diverged with respect to a material factual or legal issue, or to a course of action. DePriest, 510 S.W.3d at 338.

Thus, in Cooper v. State, 356 S.W.3d 148 (Mo. banc 2011), the Missouri Supreme Court rejected a post-conviction movant's claim that a guilty plea was not knowing and voluntary because of trial counsel's potential conflict of interest in advising the movant to plead guilty while also advising the movant to waive post-conviction ineffective assistance of counsel claims. Id. at 157 (“Cooper has neither alleged nor proven the presence of an actual conflict of interest--that is to say, a claim of ineffective assistance of counsel that pertains to the knowing, voluntary, and intelligent waiver of postconviction rights.”). And, in State v. Chandler, the Missouri Supreme Court appointed the defendant a new attorney when it perceived “possible conflicts in counsel's representation” because one of defendant's trial attorneys was a known suspect in the very murder for which the defendant was charged and remanded the case to trial court to hold an evidentiary hearing to examine the effectiveness of trial counsel. 698 S.W.2d at 845. On remand, the motion court found that the defendant had not been deprived of effective assistance of counsel. Id. at 845-46. On appeal, the Missouri Supreme Court disagreed and held that Chandler sustained his burden to show that the potential conflict of interest between the co-suspect attorney and himself was, in fact, an actual conflict of interest that adversely affected his attorney's performance. Id. at 846-48 (citing Cuyler, 446 U.S. at 348, 100 S.Ct. 1708). The Court relied on evidence that Chandler wanted to call his brother as a witness at trial to testify that the brother, not Chandler, had participated in killing the victim at the behest of the co-suspect attorney, but the co-suspect attorney chose not to do so, claiming the brother was not a reliable witness. Id. at 847 & 848 n.11. This evidence qualified to establish that “counsel actively represented conflicting interests.” Id. at 848. The Court held:

[W]e find it unnecessary for defendant to show that the failure to call [a witness], or the doing of or the failure to do something else, was an improper tactical decision. It suffices here for defendant to show that the actual conflict affected his lawyers’ ability to exercise independent judgment in their representation of defendant. In light of the egregious conflict of interest present here, it can only be concluded that there could not have been the necessary independent exercise of judgment, and that the existing conflict adversely affected their performance.

Id. at 848-49 (emphasis added). The Supreme Court's holding reveals the subtle difference between traditional Strickland prejudice (i.e., that counsel's doing of or failure to do something had the reasonable probability of affecting an outcome), and the “prejudice” presumed when the Sixth Amendment right to assistance of counsel is shown to have been deprived because the evidence establishes that an attorney's ability to exercise independent judgment on behalf of a defendant is impaired by a conflict of interest.

These settled principles apply to the present case, where Foster claims that trial counsel had an actual conflict of interest because Foster's interest in adequate assistance of counsel was in competition with trial counsel's interest to do as little as possible so that the hourly value of provided services did not exceed the flat fee Foster was charged. Foster acknowledges that the controlling standard for determining his claim of ineffective assistance of counsel is as articulated in Cuyler: that “to establish a violation of the Sixth Amendment, a defendant ․ must demonstrate that an actual conflict of interest adversely affected [trial counsel's] performance” by affecting “the adequacy of his representation.” 446 U.S. at 348-49, 100 S.Ct. 1708. But Foster wholly misapprehends that this standard is not a “two-prong” test. See DePriest, 510 S.W.3d at 340 (holding that the “standard is not properly read as requiring inquiry into actual conflict as something separate and apart from adverse effect. An ‘actual conflict,’ for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel's performance”) (quoting Mickens, 535 U.S. at 172 n.5, 122 S.Ct. 1237). As a result, Foster spends an inordinate amount of time claiming that the motion court committed legal error because it held that Foster did not establish an actual conflict as a matter of law because “[n]o Missouri court has found that a flat[-]fee arrangement creates a conflict of interest.”

Foster's contention not only misinterprets the standard for determining whether an actual conflict has been established but also mischaracterizes the trial court's statement as a holding that flat-fee arrangements can never support the finding of an actual conflict of interest. In fact, and to the contrary, the motion court's Judgment cited Missouri cases rejecting claims of an alleged actual conflict of interest where a criminal defendant was charged a flat fee, but only after applying the proper legal standard. See Tisius v. State, 519 S.W.3d 413. 430 (Mo. banc 2017) (rejecting claim of ineffective assistance of counsel based on alleged actual conflict of interest where attorney charged a flat fee because movant did not demonstrate that an actual conflict of interest adversely affected counsel's performance); Dorsey v. State, 448 S.W.3d 276, 300 (Mo. banc 2014) (rejecting claim of ineffective assistance based on an alleged actual conflict of interest where defendant was charged a flat fee because a potential conflict of interest alone is insufficient to render a guilty plea involuntary and because the movant did not demonstrate an actual conflict of interest that adversely affected counsel's performance). Consistent with these holdings, the motion court found in the Judgment that there is “nothing inherent in a flat[-]fee arrangement that creates, ipso facto, a conflict of interest in a criminal case,” and instead, to prevail, Foster had to prove that “there was an actual conflict of interest between himself and [trial counsel]” that “adversely affected” trial counsel's performance. The motion court did not find, as Foster alleges, that a flat-fee agreement can never support the finding of an actual conflict of interest. Instead, the motion court concluded that Foster failed to meet his burden to establish an actual conflict of interest because he did not prove that his flat-fee arrangement had an adverse effect on the adequacy of his representation. The motion court's conclusion was not clearly erroneous.

Foster claimed in his amended motion, and claims here again on appeal, that the flat-fee arrangement he had with trial counsel was an actual conflict of interest because it was non-refundable. Foster does not persuasively explain how or why the alleged nonrefundable nature of the flat-fee agreement translated into an adverse effect on the adequacy of his representation. In any event, the motion court found that the fee agreement between Foster and trial counsel was not nonrefundable, “whether in form or in practice.” The motion court also found that even though Foster found fault with trial counsel's accounting practices (which would have permitted proper calculation of a refund against the flat fee) and even though trial counsel's accounting practices may (in some circumstances) be financially unwise, that alone “does not equate to an inherent conflict of interest, let alone rise to the level of constitutionally ineffective” assistance of counsel. Foster does not meaningfully challenge this finding on appeal.

Foster also claimed in his amended motion, and claims again in the argument portion of his brief, that trial counsel's representation was adversely affected by the flat-fee arrangement in three respects: (1) his trial counsel “failed to investigate and utilize valuable impeachment evidence provided to them by” Foster; (2) his trial counsel “failed to adequately litigate their motion for new trial”;⁸ and (3) his trial counsel “advised [him] to waive his fundamental right to a trial by jury because it meant less work would be required of them than if [he] proceeded to a jury trial.”⁹

The Judgment wholly rejected Foster's claims, and made the following findings and conclusions:

[T]he Court finds and believes that [Foster] has failed to present any credible evidence that the fee arrangement between [Foster] and his attorneys created any actual conflict of interest, let alone one that adversely impacted his attorneys’ performance at all. As noted above, [trial counsel] charged [Foster] $12,000.00 for their representation of him throughout his criminal case (a Class D felony)--an amount he now argues was insufficient to guarantee their zealous advocacy on his behalf. Throughout the hearing on the matter, [Foster] leveled a barrage of strong accusations against his former trial attorneys, arguing that what he now views as the paltry sum they charged him for their service gave them no incentive to do anything more than minimally necessary to pocket the money. The Court, however, finds and believes that these allegations rest upon a sand-like foundation of speculation and assumption; whereas, the credible evidence--as adduced at the hearing on the matter--points in the opposite direction. Both attorneys, for example, testified extensively as to the work they performed in the underlying criminal case on [Foster's] behalf, from meeting repeatedly with [Foster] and his father, to trial preparation, to the trial itself, and beyond. Furthermore, despite [Foster's] repeated attacks on their character, each attorney swore that the amount they charged [Foster] had no impact on their conduct at any point during their representation of him. For example, when pressed at the [evidentiary] hearing by [Foster's] counsel as to why [trial counsel] would ever do more than is minimally necessary to earn their fee, [trial counsel] responded, “Because we enjoy being good lawyers.” Likewise, when confronted with a similar line of inquiry, [trial counsel] responded that [they] have extensive criminal trial experience, having represented clients in both jury trials and in bench trials, and so it is simply “not an issue for us about whether [their representation of a client] is longer or shorter, less expensive or more.” [Foster] presented no credible evidence to the contrary.

(Record citations omitted.) The motion court's findings are plainly grounded in credibility determinations to which we defer. Armstrong, 734 S.W.3d at 384; see also Tisius, 519 S.W.3d at 430 (rejecting claim that flat-fee arrangement presented an actual conflict of interest because motion court found credible trial counsel's testimony that “the flat[-]fee arrangement had no adverse impact on their representation” of movant).

In any event, the motion court's findings are not clearly erroneous as they are supported by the evidence presented at the evidentiary hearing. With respect to Foster's claim of adverse effect on his representation demonstrated by the decision not to use impeachment evidence at trial and by the manner in which the hearing on Foster's motion for new trial was handled, Foster did not present any evidence to the motion court, and does not explain here, how or why trial counsel's strategic decisions (found by the motion court to be within the range of that expected from a reasonably competent attorney) represented choices that were impaired by an inability to exercise independent judgment because of the flat-fee agreement. We see nothing in the motion court record that would permit a conclusion that trial counsel would have been required to do appreciably more work had the choice been made to admit the digital evidence Foster supplied before trial, or had the choice been made to admit the Snapchat message or to object to the victim's testimony during the hearing on the motion for new trial. In the absence of such evidence, Foster's assertion that these strategic choices by trial counsel reflect the adverse effects of the flat-fee arrangement on the adequacy of his representation are, as the motion court found, based “upon a sand-like foundation of speculation and assumption.”

With respect to the claim of adverse effect demonstrated by trial counsel's advice that Foster proceed to a bench trial instead of jury trial, trial counsel testified that they talked with Foster about the State's offer to plead guilty to the crime charged in exchange for receiving a suspended execution of sentence and recommended that Foster accept the offer. But, when Foster refused to do so, trial counsel began to prepare for trial, including advising Foster about the difference between a jury trial and a bench trial and the advantages and disadvantages of both. Trial counsel testified that it was Foster's decision whether to elect a jury trial or a bench trial, and that Foster chose to proceed to a bench trial. Foster himself testified that he chose a bench trial because trial counsel explained to him that, as a Black man, a bench trial would avoid “twelve white men” in Clay County determining his fate. Moreover, trial counsel testified that, while preparing for a bench trial was marginally less work than for a jury trial, the effort expended would be similar. Given this evidence, the motion court did not clearly err when it concluded that Foster failed to prove that the adequacy of trial counsel's representation was adversely affected by the flat-fee arrangement when trial counsel recommended proceeding to a bench trial.

The trial court did not clearly err in finding that Foster failed to establish that he was deprived of his Sixth Amendment right to counsel because the flat-fee agreement he had with trial counsel adversely affected the adequacy of his representation and was thus an actual conflict of interest.

Foster's point on appeal is denied.

Conclusion

The Judgment is affirmed.

FOOTNOTES

1.   All Rule references are to Missouri Supreme Court Rules, Volume 1--State, 2023, the rules in effect when Foster filed his pro se motion for post-conviction relief, unless otherwise noted.

2.   Foster was represented at trial by two attorneys. Because identifying the attorneys individually is not material to the disposition of Foster's appeal, we collectively refer to both attorneys as “trial counsel” throughout this Opinion.

4.   All statutory references are to RSMo 2016 as amended through the date Foster committed statutory rape in the second degree.

5.   Foster's retained counsel was also representing Foster when Foster dismissed his direct appeal prior to briefing.

6.   Foster has thus abandoned his claims of ineffective assistance of counsel based on trial counsel's decision not to use the digital evidence Foster provided at trial, and trial counsel's decision not to admit the Snapchat message or to object to the victim's testimony during the hearing on Foster's motion for new trial.

7.   Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

8.   The first and second arguments arise out of the same facts which formed the basis for the claims of ineffective assistance of counsel raised in the Amended Motion, denied in the Judgment, and abandoned because not addressed by Foster on appeal. To have prevailed on the abandoned claims of ineffective assistance of counsel, Foster would have been required to demonstrate Strickland prejudice. The Judgment concluded that Foster had not done so. That does not automatically prevent the subject matter of the abandoned claims from being separately argued as examples of the adverse effect a conflict of interest had on trial counsel's representation, as to establish an actual conflict of interest, where Strickland prejudice need not be shown. Still, as we weigh the motion court's rejection of Foster's claim of an actual conflict of interest, it is nonetheless relevant that as to both of the abandoned claims, the trial court found credible trial counsel's explanations for not using the impeachment material supplied by Foster at trial, and for not admitting the Snapchat or objecting to the victim's testimony during the hearing on the motion for new trial. And, it is relevant that as to both abandoned claims, the motion court found that trial counsel's conduct fell within the range of conduct that would be expected from reasonably competent trial counsel.

9.   Foster's point on appeal makes no mention of counsel's advice that he should proceed to a bench trial instead of a jury trial as an example of the adverse effect on adequate representation necessary to elevate a potential conflict of interest to an actual conflict of interest. That claim is arguably waived. See Terpstra v. State, 565 S.W.3d 229, 241 n.8 (Mo. App. W.D. 2019) (“Claims of error raised in the argument portion of a brief that are not raised in a point relied on are not preserved for our review.”) (quoting Davis v. Wieland, 557 S.W.3d 340, 352 n.10 (Mo. App. W.D. 2018)). We nonetheless elect ex gratia to address the merit of the argument.

Cynthia L. Martin, Judge

All concur