Watson v. State

George W. Draper III, Judge

Bruce Watson (hereinafter, “Watson”) was convicted by a jury of first-degree robbery and sentenced to fifteen years’ imprisonment. At Watson’s sentencing heating, the circuit court misinformed him about the time deadlines to file his Rule 29.15 post-conviction motion. Watson’s conviction was affirmed on direct appeal, State v. Watson, 397 S.W.3d 539 (Mo. App. E.D. 2013), and the court of appeals issued its mandate. Watson filed a Rule 29.15 motion for post-conviction relief approximately sixteen months later despite Rule 29.15(b)’s requirement that it be filed within ninety days of the mandate’s issuance. The motion court overruled Watson’s motion without an evidentiary hearing. Watson appeals.

This Court holds that Watson’s Rule 29.15 post-conviction relief motion was filed untimely. However, Watson’s untimeliness is excused because the circuit court misinformed him about the appropriate deadline to file his motion during his sentencing colloquy. The Court further holds the motion court clearly erred in overruling Watson’s Rule 29.15 motion because Watson demonstrated he is entitled to an evidentiary hearing concerning trial counsel’s strategy for failing to request a lesser-ineluded offense instruction. The case is reversed, and the cause is remanded for an evidentiary hearing.

Factual and Procedural History

On July 11, 2009, Watson entered a Check N’ Go store where Yulena Shull (hereinafter, “Shull”) was working. When Shull asked Watson if she could help him, Watson reached around another customer, tossed a blue plastic grocery bag onto the counter and told Shull to fill up the bag. Watson walked around the counter, reached into his pocket, and quickly flashed what Shull believed to be a gun at her. Shull emptied the contents of her cash drawer into the grocery bag. Watson left the store, and Shull contacted the police. Watson was arrested and charged with one count of first-degree robbery and armed criminal action. The jury convicted Watson of first-degree robbery but acquitted him of armed criminal action.

At sentencing, when the circuit court asked Watson if there was any legal reason why he should not be sentenced, Watson answered, “I wasn’t properly represented.” After the circuit court sentenced Watson to serve fifteen years’ imprisonment, the circuit court informed Watson of his post-conviction relief rights pursuant to Rule 29.07(b). The circuit court stated, “In order to obtain review of your conviction and sentence, you must file a verified Criminal Procedure Form Number 40 within 180 days after your delivery to the Missouri Department of Corrections; otherwise, you waive or give up your rights under Rule 29.15.” Watson indicated he understood his rights. Watson listed grievances he had with trial counsel’s representation, which included wanting to plead guilty to a lesser charge but being forced to go to trial.

Watson’s conviction was affirmed on April 23, 2013. On May 15, 2013, the court of appeals issued its mandate. More than sixteen months later, on October 2, 2014, Watson filed his initial pro se motion for post-conviction relief. Watson’s pro se motion stated he was sentenced on March 9, 2012, and “was instructed not to file this cause until [he] was delivered to the [department of corrections] by the courts making this cause timely.”

The motion court appointed counsel, who subsequently filed an amended motion. Watson’s amended motion attempted to explain the tardiness of his pro se filing. Watson averred that he was never delivered to the department of corrections to serve his sentence. The record reflected that before the robbery trial, Watson was charged with a separate criminal offense. In lieu of being delivered to the department of corrections after the robbery conviction, Watson was detained in the Saint Louis City Justice Center to undergo a pretrial psychiatric examination to determine his competency to stand trial for the separate offense. On August 4, 2014, Watson was adjudicated incompetent to stand trial for the separate offense and ordered committed to the custody of the department of mental health. The separate offense had not yet been disposed of at the time of Watson’s pro se filing.

Watson requested that the motion court find his pro se motion timely because the circuit court misinformed him during sentencing regarding the deadline to file his motion. Watson understood the circuit court’s statement to mean that his motion was not due until 180 days after he was delivered to the department of corrections. Because he was never delivered to the department of corrections, Watson was under the impression that the deadline to file his pro se motion had not passed. Watson only discovered his tardiness after speaking to another inmate about his case. Watson also contended there was a genuine issue as to whether he understood his rights under Rule 29.15 because he was adjudicated incompetent. Finally, Watson’s amended motion alleged trial counsel was ineffective for failing to submit lesser-included offense instructions for second-degree robbery and felony stealing.

The motion court recognized Watson’s Rule 29.15 motion was filed untimely. The motion court further stated the circuit court was not required to inform a movant of the time limits, and a failure to inform a movant does not override the rule’s mandatory time limits. However, the motion court found Watson’s case did not involve the circuit court’s failure to advise him of the time limit but, rather, involved a misrepresentation about the time limit. The motion court stated it would address the merits of Watson’s claim out of an abundance of caution. The motion court overruled Watson’s ineffective assistance of counsel claim, finding Watson was not entitled to a second-degree robbery instruction where there was evidence presented that Watson used or threatened the use of a deadly weapon or dangerous instrument during the course of the robbery. Watson now appeals.

Standard of Review

This Court reviews the denial of post-conviction relief to determine whether the motion court’s findings of fact and conclusions of law 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.” Swallow v. State, 398 S.W.3d 1, 3 (Mo. banc 2013).

Timeliness of the Rule 29.15 Motion

This Court must determine first whether it has the authority to address the merits of Watson’s Rule 29.15 motion because his pro se motion was filed untimely. Rule 29.15(b) provides in part:

If an appeal of the judgment or sentence sought to be vacated, set aside or corrected was taken, the motion shall be filed within 90 days after the date the mandate of the appellate court is issued affirming such judgment or sentence. If no appeal of such judgment or sentence was taken, the motion shall be filed within 180 days of the date the person is delivered to the custody of the department of corrections.

Because Watson sought an appeal from the circuit court’s judgment and sentence, his Rule 29,15 motion should have been filed ninety days after the court of appeals issued its mandate, which occurred May 15, 2013. Therefore, Watson’s initial pro se motion was due on or before August 13, 2013, but was filed on October 2, 2014, approximately sixteen months after the mandate issued.

In addition to proving his substantive claim, Watson must show he filed his Rule 29.15 motion within the time limits provided therein. Dorris v. State, 360 S.W.3d 260, 267 (Mo. banc 2012). The time limits for filing a Rule 29.15 motion are mandatory. Day v. State, 770 S.W.2d 692, 695 (Mo. banc 1989); Eastburn v. State, 400 S.W.3d 770, 773 (Mo. banc 2013). Generally, when movants fail to file their Rule 29.15 motions within the applicable time limits, there is a complete waiver of the right to seek post-conviction relief and a complete waiver regarding all claims that could be raised in a Rule 29.15 motion. Moore v. State, 328 S.W.3d 700, 702 (Mo. banc 2010). Because Watson’s pro se motion was filed untimely, he must allege facts showing “and proving by a preponderance of the evidence in his motion that he falls within a recognized exception to the time limits.” Dorris, 360 S.W.3d at 267. While Rule 29.15 does not carve out exceptions that excuse late filings, Missouri courts recognize two exceptions: “(1) when post-conviction counsel abandons the movant; and (2) when rare circumstances outside the movant’s control justify late receipt of the motion.” Moore, 328 S.W.3d at 702.

Watson does not claim post-conviction counsel abandoned him. Instead, Watson asserts the circuit court’s misinformation constituted rare circumstances that justify his failure to prepare and send his original motion in a timely manner. Watson requests this Court find the circuit court’s misinformation regarding the correct filing deadline justifies creation of a new exception to Rule 29.15’s mandatory filing deadlines.

Circuit Court’s Obligations Under Rule 29.07

Rule 29.07(b)(4) provides in pertinent part:

If a defendant has a right to proceed under ... Rule 29.15, the court at the conclusion of final sentencing shall advise the defendant of such right and shall examine the defendant as to the assistance of counsel received by the defendant. The examination shall be on the record and may be conducted outside the presence of the defendant’s counsel. At the conclusion of the examination the court shall determine whether probable cause exists to believe the defendant has received ineffective assistance of counsel.

“Under Rule 29.07(b), the trial court must conduct a post-sentencing hearing in which it questions the defendant concerning the effectiveness of trial counsel. The court must also advise the defendant of the right to proceed under Rule 29.15.” Moore, 328 S.W.3d at 703. Yet the circuit court is not responsible for any breach appellate counsel commits in filing the Rule 29.15 motion and has no obligation to remedy it. Price v. State, 422 S.W.3d 292, 303 (Mo. banc 2014). The circuit court is obligated to provide a remedy under two discrete circumstances: (1) when a criminal defendant has received ineffective assistance of counsel that is so deficient it violates the defendant’s constitutional right to effective assistance of counsel; and (2) when an indigent defendant timely files a post-conviction motion and appointed counsel’s actions constitute abandonment. Id. This Court has yet to resolve the question presented in this case, which is what relief, if any, movants are entitled to when they rely on the circuit court’s inaccurate recitation of the mandatory Rule 29.15 filing deadlines.

Failure to Inform the Defendant

Although this case does not present the issue of the circuit court’s failure to inform a movant about his or her rights under Rule 29.07(b), appellate court cases establish that movants are not entitled to relief when the circuit court provides little or no information about the filing deadlines.¹ In Reed v. State, 781 S.W.2d 573 (Mo. App. E.D. 1989), the court held the circuit court’s failure to advise the movant of the time deadlines did not excuse an untimely filing. The appeals court explained:

While Rule 29.07(b)(4) indicates a trial judge should inform a movant of his right to a Rule 24.035 or 29.15 motion, there is no indication in the rules or case law that failure to do so overrides the mandatory time limitations. In addition, the rule does not require the sentencing court to specifically advise defendant of the ninety day time limit.

Id. at 573.

In State v. Johnston, 786 S.W.2d 220 (Mo. App. W.D. 1990), the circuit court advised the movant generally of the right to post-conviction relief but did not advise the movant of the specific time deadline. Id. at 222. The Western District rejected the movant’s argument that his untimely post-conviction claims should be heard because the circuit court failed to advise him of the filing deadline. Id. The Western District stated the circuit court’s general explanation complied with Rule 29.07(b)(4), despite failing to inform the movant of the specific deadline. Id. ‘We do not hold that failure of the trial court to give the advice required by Rule 29.07(b)(4) would in any way relax the time requirements within which a [post-conviction motion] must be filed ....” Id. at 222-23.

In Hawkins v. State, 807 S.W.2d 214 (Mo. App. W.D. 1991), the circuit court failed to inform the movant of his right to proceed under Rule 29.15 and failed to examine him regarding trial counsel’s effectiveness. The movant argued these failures excused his untimely Rule 29.15 motion. The appeals court disagreed, citing and following Reed. Id. at 215; see also Drewel v. State, 835 S.W.2d 401, 402-03 (Mo. App. E.D. 1992) (rejecting the movant’s untimely filing and finding case identical to Reed and Hawkins). Hence, the circuit court’s failure to inform a movant of his or her rights under Rule 29.07(b) will not excuse a tardy post-conviction motion.

Misinforming the Defendant

There is a difference between failing to inform and misinforming movants of their post-conviction rights. Despite Watson’s assertion that his case presents an issue of first impression, this Court notes only two appellate court cases have addressed instances in which the circuit court misinformed the movants about the time deadlines to file and the late filings were not excused.

In State v. Francis, 60 S.W.3d 662 (Mo. App. W.D. 2001), the circuit court misinformed the movant of the filing deadline under Rule 24.035, which is 180 days after the movant’s delivery to the department of corrections. The circuit court told the mov-ant the deadline was within ninety days after delivery to the department of corrections. The Western District found the movant failed to meet her burden of demonstrating the circuit, court’s error was prejudicial. Francis, 60 S.W.3d at 667. The court explained the circuit court’s “only error was the recitation of the filing deadline ...” and it was “difficult to see how this error could have been material” in this case. Id. at 668. Citing Johnston and Reed, the court noted that failure to inform a movant about the deadlines did not relax the filing deadlines and, therefore, “we do not believe prejudicial error can occur when the court advises a represented defendant of the earliest deadline a defendant faces for any post-conviction relief.” Id. (Emphasis added). Because the circuit court provided a date that was before the deadline, the Western District found it committed no error. Id.

This Court finds Francis distinguishable from Watson’s case because the circuit court informed Watson of the latest date to file under Rule 29.15. The circuit court stated Watson’s Form 40 must be filed within 180 days after delivery to the department of corrections. This proclamation was incorrect because Watson was required to file within ninety days after the mandate was issued. Accordingly, Francis’s holding that no prejudice can occur when a movant is misinformed of the earliest possible date is inapplicable here because Watson was under the mistaken impression he had the latest deadline to file his claim.

More analogous to Watson’s case is Talley v. State, 399 S.W.3d 872 (Mo. App. E.D. 2013), wherein the movant alleged the circuit court incorrectly advised him he had 180 days after delivery to the department of corrections to file his post-conviction motion after he appealed his conviction. The movant filed his pro se motion two and a half years later. Talley, 399 S.W.3d at 874. The Eastern District rejected this claim:

Talley’s argument rests upon two unstated premises: (1) the sentencing judge’s instructions were incorrect because they did not address the applicable time limitation for filing an initial motion after mandate issued; and (2) Talley would have followed that instruction if it had been given. Based upon our review of the record before us, the second premise fails. Talley’s motion included an attached Exhibit A, which was one page from the sentencing hearing transcript. This exhibit shows Talley was told that he could ‘file a motion to vacate this sentence, which is waived if not filed within 180 days from the date you are sent to prison.’ Talley was delivered to the [department of corrections] on September 11, 2008. He did not file his initial Rule 29.15 motion within 180 days thereafter. Thus, the record reveals that Talley did not follow the one clear timing instruction that he received from the sentencing judge. Talley fails to persuade us—as is his burden—that he would have followed a different timing instruction relating to the issuance of mandate, especially given his unexplained two-and-a-half-year delay in filing the instant motion. Therefore, any omission in the sentencing judge’s instructions did not prejudice Talley or cause him to file his initial Rule 29.15 motion out of time.

Id. at 877 (emphasis added).

Like Talley, Watson did not file his motion within the circuit court’s erroneously declared deadline of 180 days. However, unlike in Talley, Watson offers several reasons to explain his delay in filing the motion.

This Court will address each reason below.

Independent Knowledge of Filing Deadline

Watson maintains he had no independent knowledge of the filing deadline until another inmate told him his motion was late. The record also raises a fact question as to whether Watson’s appellate counsel informed him of the mandate’s issuance. However, a movant’s ignorance of the law is no excuse for the failure to assert timely claims for post-conviction relief. See Cheek v. State, 776 S.W.2d 66, 67-68 (Mo. App. S.D. 1989); Woodrome v. State, 788 S.W.2d 544, 546 (Mo. App. S.D. 1990); Fincher v. State, 795 S.W.2d 505, 507 (Mo. App. W.D. 1990); Drewel, 835 S.W.2d at 403. Hence, under Cheek, Woodrome, Fincher, and Drewel, whether Watson had actual knowledge of the deadline is irrelevant and does not excuse an untimely filing.

Competency to Proceed

Watson raises his competency as an impediment to understanding the filing deadlines. After his sentencing, Watson was held in St. Louis city jail on separate robbery charges. In that case, the circuit court ordered a pretrial psychiatric evalúation in March 2014. The circuit court adjudicated Watson incompetent on August 4, 2014. Watson did not file his pro se motion until October 2, 2014. Watson argues his competency raises a fact question as to whether he understood his rights and the time deadlines, thus excusing the delay.

An original motion is “relatively informal” and serves to notify the circuit court, the appellate court, and the state that the movant intends to seek post-conviction relief. Bullard v. State, 853 S.W.2d 921, 922-23 (Mo. banc 1993). “As legal assistance is not required in order to file the original motion, the absence of proper legal assistance does not justify an untimely filing.” Id. at 923; see also Gehrke v. State, 280 S.W.3d 54, 57 (Mo. banc 2009).

In Hendrickson v. State, 400 S.W.3d 857 (Mo. App. E.D. 2013), the movant filed an untimely pro se motion, contending his mental disability and inability to find someone to assist him to draft his pro se motion excused its tardiness. The court held the lack of legal acumen and legal assistance did not excuse a late filing because neither is required to complete Form 40. Id. at 860; see also State v. Harris, 781 S.W.2d 137, 139 (Mo. App. S.D. 1989) (holding a movant’s youth, limited education, and minimal contacts with the legal system did not excuse a late filing). Although mental disability differs from competency to stand trial, ultimately, Watson was able to draft and file a pro se motion, even after being adjudicated incompetent. This undermines Watson’s argument that his competency raised a fact question regarding his ability to understand the filing requirements.

Delivery to the Department of Corrections

Watson argues that, because he was never delivered to the department of corrections his untimely filing is excused. Watson maintains he did not believe the filing period began to run because he was never delivered to the department of corrections. The circuit court informed Watson he had 180 days from the date of his delivery to the department of corrections to file a claim. This information was incorrect in that the 180-day deadline only applied if Watson did not appeal his conviction.²

“Both Rule 24.035 and Rule 29.15 utilize the time at which the movant is ‘delivered to the custody of the department of corrections’ to mark the beginning of the time during which a motion for relief may' be filed.” Self v. State, 774 S.W.2d 576, 578 (Mo. App. E.D. 1989). However, Missouri case law is clear that there is no requirement that a person be in Missouri custody, much less in the custody of the department of corrections, to institute proceedings under Rule 29.15.

In Dougan v. State, 118 S.W.3d 593 (Mo. banc 2003), this Court stated Rule 29.15 was “only limited to those persons ‘convicted of a felony after trial.’” Dougan, 118 S.W.3d at 595. While Rule 24.035 contained the requirement that the defendant be delivered to the department of corrections prior to seeking post-conviction relief, “Rule 29.15 does not require incarceration or state custody.” Id. Hence, a defendant could seek relief despite never having been incarcerated or delivered to the department of corrections so long as that person had been convicted of a felony. Id.; see also Malone v. State, 747 S.W.2d 695, 701 (Mo. App. E.D. 1988) (holding that, even though an inmate was incarcerated in another state under a sentence imposed in that state, he may seek relief under Rule 29.15 if “convicted of a felony” in Missouri); Woodrome, 788 S.W.2d at 546 (rejecting the movant’s argument that delivery to the Jackson County jail rather than the department of corrections after conviction tolled the time to file a motion, citing Malone); Fincher, 795 S.W.2d at 506-07 (rejecting the movant’s argument that the Rule 29.15 time deadlines did not apply because he was not in actual custody in Missouri, citing Malone and Woodrome). Thus, not only did the delivery to the department of corrections requirement not apply to Watson because he filed an appeal, but Watson also did not have to wait until he was delivered to the department of corrections to seek post-conviction relief of his own accord.

Right to Rely on the Circuit Court’s Representations

Finally, Watson relies on Bergdoll v. State, 14 S.W.3d 258 (Mo. App. S.D. 2000), for the proposition that he had a right to rely on the circuit court’s representations during sentencing that his Form 40 was not due until 180 days after he was delivered to the department of corrections. In Bergdoll, the movant relied on the circuit court’s representation that he would receive appointed counsel if he filed a pro se motion. Bergdoll, 14 S.W.3d at 260. However, Rule 24.035(e) only provides for the appointment of counsel if the movant is indigent. The movant filed a deficient pro se motion to proceed in forma pauperis, and the circuit court dismissed his motion without appointing counsel. Id. at 260-61. The Southern District reversed, stating, “[The mjovant ha[d] a right to rely on representations made by the trial court” and permitted the movant to receive appointed counsel. Id. at 261. The court cautioned its holding was confined to the unique facts of that case. Id.; see also McElheny v. State, 29 S.W.3d 861 (Mo. App. S.D. 2000) (applying Bergdoll to the same circuit court representations made to a movant seeking to proceed under Rule 29.15).

Additionally, other cases have granted defendants relief when they have relied on a circuit court’s erroneous representations during sentencing to their detriment. In State v. Rowan, 165 S.W.3d 552 (Mo. App. E.D. 2005), the Eastern District, after plain error review, reversed and remanded a case for resentencing when the circuit court affirmatively misinformed the defendant during sentencing about having a better opportunity for parole if he were given a life sentence as opposed to a sentence for a terms of years. Rowan, 165 S.W.3d at 555-56. The Eastern District explained that, although parole eligibility was a collateral consequence of the sentence, there was “a distinction between circumstances where a defendant is advised erroneously about parole eligibility and a failure to advise at all.” Id. at 555; see also Brown v. Gammon, 947 S.W.2d 437, 441 (Mo. App. W.D. 1997) (finding a movant’s guilty plea was involuntary because the movant possessed a mistaken belief as to his sentence, which was attributable to the circuit court’s representations, upon which the movant had a right to rely); Pettis v. State, 212 S.W.3d 189, 194-95 (Mo. App. W.D. 2007) (finding ineffective assistance of counsel when both the movant and the circuit court possessed a mistaken belief that his parole eligibility would not be extinguished entirely by the imposition of consecutive sentences); Johnson v. State, 318 S.W.3d 313, 319-20 (Mo. App. E.D 2010) (holding the movant was entitled to vacate his plea when he relied upon the plea court’s erroneous representations about his eligibility for bond time credit because this representation prompted the movant’s mistaken belief about the consequences of his plea). This Court recognizes these cases do not address a movant being erroneously informed about the Rule 29.15 time deadlines as Talley does. Yet, they all stand for the proposition that, when the circuit court misinforms defendants about critical information upon which those defendants had a right to rely, defendants are entitled to a remedy.³

The circuit court is presumed to know and be guided by the applicable rules of civil procedure. See Lane v. Lensmeyer, 158 S.W.3d 218, 224 (Mo. banc 2005). Missouri law is clear: The post-conviction filing deadlines are mandatory and failure to adhere to these' deadlines imposes a harsh consequence—the complete waiver of the right to seek post-conviction relief and a complete waiver regarding all claims that could be raised in a Rule 29.15 motion. Accordingly, it is imperative that, when the circuit court undertakes the obligation to explain the filing deadlines during the sentencing colloquy, the information the circuit court provides is correct, especially given the mandatory and inflexible nature of the time deadline under Rules 29.15 and 24.035.⁴ To the extent that Talley says otherwise, it should no longer be followed.⁵

Watson’s case presents a unique factual scenario that does not fit squarely into the third-party active interference exception recognized in Price because the circuit court is not a party and cannot be said to actively interfere with a movant's filing. Instead, this Court holds this case presents a new, limited exception in which an untimely post-conviction motion will be excused when the circuit court misinforms a defendant about the appropriate deadlines to file his or her motion during the sentencing colloquy. Accordingly, this Court holds that, although Watson filed an untimely Rule 29.15 motion, the untimeliness is excused because the circuit court misinformed him about the appropriate deadlines to file his motion during his sentencing colloquy and he was entitled to rely upon this misinformation when determining the filing deadline. This Court next addresses the merits of Watson’s Rule 29.15 motion.

Ineffective Assistance of Counsel

Watson argues the motion court clearly erred in overruling his Rule 29.15 motion without an evidentiary hearing because he alleged facts, not refuted by the record, which if true, warrant relief. Watson argues trial counsel was ineffective for failing to submit a lesser-included offense instruction for second-degree robbery or for felony stealing. Watson maintains he was prejudiced by trial counsel’s ineffectiveness because, but for this error, there is a reasonable probability the outcome of his trial would have been different.

To be entitled to post-conviction relief for ineffective assistance of counsel, a movant must show by a preponderance of the evidence that his or her trial counsel failed to meet the Strickland test. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, Watson must demonstrate: (1) his trial counsel failed to exercise the level of skill and diligence that a reasonably competent trial counsel would in a similar situation, and (2) he was prejudiced by that failure. Id. at 687, 104 S.Ct. 2052.

Watson must overcome the strong presumption that trial counsel’s conduct was reasonable and effective. Johnson v. State, 406 S.W.3d 892, 899 (Mo. banc 2013). To overcome this presumption, a movant must identify “specific acts or omissions of counsel that, in light of all the circumstances, fell outside the wide range of professional competent assistance.” Zink v. State, 278 S.W.3d 170, 176 (Mo. banc 2009). Trial strategy decisions may be a basis for finding ineffective assistance of counsel only if that decision was unreasonable. Id. “[Strategic choices made after a thorough investigation of the law and the facts relevant to plausible opinions are virtually unchallengeable[.]” Anderson v. State, 196 S.W.3d 28, 33 (Mo. banc 2006) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. at 2052). To be entitled to an evidentiary hearing, Watson’s motion “must: (1) allege facts, not conclusions, warranting relief; (2) raise factual matters that are not refuted by the file and record; and (3) raise allegations that resulted in prejudice.” Johnson, 406 S.W.3d at 898.

To prevail on a claim that counsel was ineffective for failing to request a lesser-included offense instruction, Watson must demonstrate “the evidence would have required the trial court to submit the instruction had one been requested, that the decision not to request the instruction was not reasonable trial strategy, and that prejudice resulted.” McCrady v. State, 461 S.W.3d 443, 448 (Mo. App. E.D. 2015). “Even where the evidence supports the submission of a lesser-included offense instruction, [Watson] must still overcome the presumption that counsel’s decision not to request the instruction was reasonable trial strategy.” Id.

Section 569.020, RSMo 2000,⁶ provides that a person is guilty of first-degree robbery when he or she forcibly steals property and, in the course thereof, he or she, or another participant in the crime, either: (1) causes serious physical injury to any person; or (2) is armed with a deadly weapon; or (3) uses or threatens the immediate use of a dangerous instrument against any person; or (4) displays or threatens the use of what appears to be a deadly weapon or dangerous instrument. Watson was charged and convicted under subsection (4), displaying or threatening the use of what appeared to be a gun during the robbery. By contrast, second-degree robbery only would require the state to prove Watson forcibly stole property. Section 569.030.1. The differential element between these two offenses is whether Shull subjectively, but reasonably, believed the object Watson flashed at her and held in his jacket pocket throughout the robbery—and used or threatened to use to force her to do what he wanted— was a gun. State v. Jackson, 433 S.W.3d 390, 399 (Mo. banc 2014).

Second-degree robbery is a nested lesser-included offense of first-degree robbery because “ ‘it is impossible to commit the greater without necessarily committing the lesser.” Id. at 404 (quoting State v. Derenzy, 89 S.W.3d 472, 474 (Mo. banc 2002)). “[S]econd-degree robbery requires the state to prove beyond a reasonable doubt that the defendant took the victim’s property by force. First-degree robbery requires proof of those same elements and proof ... of the differential element that the victim reasonably believed the defendant was using or threatening to use a weapon.” Id. Thus, the circuit court commits reversible error when it refuses a defendant’s requested nested lesser-included offense instruction based solely on its view of what evidence a reasonable juror must believe or what inferences a reasonable juror must draw. Id. at 392. In this case, the evidence presented would have required the circuit court to submit a second-degree robbery instruction had trial counsel requested one. Because trial counsel did not request any lesser-included instruction, Watson must demonstrate trial counsel’s decision not to request the second-degree robbery instruction was not reasonable trial strategy. McCrady, 461 S.W.3d at 448.

Watson’s amended Rule 29.15 motion alleged he “trusted trial counsel” to request all instructions relevant to his defense, including lesser-included offense instructions if applicable. Watson stated he would testify at an evidentiary hearing that trial counsel never advised him that he could submit a lesser-included offense instruction. Watson further alleged trial counsel would testify he did not submit the lesser-included offense instructions and had no reasonable trial strategy for failing to do so. However, in the next sentence, Watson claimed he anticipates trial counsel would testify the defense strategy utilized at trial was that the state failed to meet its burden of proof on an essential element of first-degree robbery because Watson did not have a gun and did not display what appeared to be a dangerous instrument or deadly weapon.

During closing argument, trial counsel repeatedly asserted Shull was mistaken about seeing a gun and argued videotaped surveillance refuted her .testimony. Trial counsel argued Watson did not commit an essential element of first-degree robbery because the state did not meet its burden of proving Watson displayed or threatened the use of what appeared to be a deadly weapon or dangerous instrument. Trial counsel conceded the state proved the first two elements of robbery, but then argued the state’s case failed because no gun was used during the robbery. Trial counsel further argued that Watson was not guilty of armed criminal action because no weapon was used during the commission of the robbery. The jury acquitted Watson of the armed criminal action charge.

The state argues trial counsel’s argument demonstrates he pursued an “all-or-nothing” defense in which trial counsel’s strategy was to deny the jury the opportunity to compromise between first-degree robbery and an acquittal by failing to offer a lesser-included instruction. “All-or-nothing” defenses have been upheld as sound trial strategy. See Love v. State, 670 S.W.2d 499, 502 (Mo. banc 1984); Oplinger v. State, 350 S.W.3d 474, 477 (Mo. App. S.D. 2011); McCrady, 461 S.W.3d at 450-51. However, in each of those cases, the movant was afforded an evidentiary hearing in which trial counsel explained the failure to request lesser-included instructions was in pursuit of an “all-or-nothing” defense, which trial counsel believed was the best defense for the client. Here, Watson’s claim was denied without an evidentiary hearing and without the benefit of trial counsel articulating what, if any, strategy he employed in defending Watson.

“To establish relief under Strickland, a movant must prove prejudice.” Johnson, 406 S.W.3d at 899. Prejudice occurs when “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Deck v. State, 68 S.W.3d 418, 429 (Mo. banc 2002) (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052). In this context, “prejudice” means a reasonable probability that the outcome of the trial would have been different if the second-degree robbery instruction had been given. McNeal v. State, 412 S.W.3d 886, 889 (Mo. banc 2013) (hereinafter, “McNeal I”).

Watson’s case is strikingly similar to McNeal I, in which this Court held the movant was entitled to an evidentiary hearing to determine whether trial counsel was ineffective when he effectively conceded the defendant committed a lesser-included offense but failed to request an instruction on the lesser-included offense in the hopes of obtaining an acquittal on the greater offense. This Court explained the movant suffered prejudice, even though he had been convicted of the greater offense:

[T]he underlying rationale is that the failure to provide the jury with the option, of a lesser-included offense deprives the defendant of a fair trial, even if the jury ultimately convicts the defendant of the greater offense. Without a trespass instruction, the jury was left with only two choices: conviction of burglary or acquittal. When one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction. Even though juries are obligated as a theoretical matter to acquit a defendant if they do not find every element of the offense beyond a reasonable doubt, there is a substantial risk that the jury’s practice will diverge from theory when it is not presented with the option of convicting of a lesser offense instead of acquittal. Therefore, under the facts of this case, the jury’s decision to convict on a greater offense does not foreclose all possibility that the jury would have convicted the defendant of the lesser offense. The jury’s decision may make it difficult for a post-conviction movant to prove prejudice, but it does not necessarily preclude a finding of prejudice as a matter of law such that a movant .., never can obtain an evidentiary hearing.

Id. at 892 (internal quotations and citations omitted).⁷

Watson’s case presents the same issue. Watson was convicted of first-degree robbery. Yet the evidence presented would have required the circuit court to submit a second-degree robbery instruction had trial counsel requested one. Moreover, trial counsel effectively conceded during his closing argument that Watson committed second-degree burglary but disputed the differential element that Shull reasonably believed Watson was using or threatening to use a weapon. In contrast to the other “all-or-nothing” cases, trial counsel did not argue Watson was innocent of the crime. Without an evidentiary hearing to ascertain trial counsel’s strategy, the record does not refute Watson’s claim in favor of a finding that trial counsel employed an “all-or-nothing” strategy to overrule Watson’s Rule 29.15 claim,

Just as in McNeal I, Watson alleged facts, not clearly refuted by the record, demonstrating he was prejudiced by trial counsel’s failure to request lesser-included offense instructions in that there was a reasonable basis in the evidence for acquitting him of first-degree robbery and convicting him of second-degree robbery. Watson is entitled to an evidentiary hearing.

Conclusion

The circuit court’s judgment is reversed, and the case is remanded for an evidentia-ry hearing.

Breckenridge, C.J., Stith and Russell, JJ., concur; Fischer, J., dissents in separate opinion filed; Wilson, J., concurs in opinion of Fischer, J. Powell, J., not participating.

1 . This Court has not had occasion to resolve whether a circuit court’s silence regarding the filing deadlines runs afoul of its obligations under Rule 29.07, and it need not do so here.

2 . The state did not respond to this argument in its brief.

3 . While the-dissenting opinion insists the circuit court made correct statements concerning the filing deadline that would apply to most defendants, there is no doubt that the deadline recited did not apply to Watson. The dissenting opinion dismisses Watson’s reliance on the circuit court's misinformation as an unfortunate choice and places upon him the burden to independently verify the circuit court’s misinformation without citation to any caselaw that requires him to do so. Concurrently, the dissenting opinion recognizes that the vast majority of defendants undoubtedly benefit from the circuit court’s advisement of the filing deadlines. Under this logic, a mov-ant who relies upon fortuitously correct and complete information is undoubtedly benefited, while a movant who relies upon misinformation is deemed to have chosen incorrectly and is entitled to no remedy. This cannot be the case when the circuit court is presumed to know the law and generally takes care to inform movants properly of their rights.

4 . This opinion should not be read to encourage sentencing courts to remain silent or omit all reference to the filing deadlines during the Rule 29.07 colloquy. Contrary to the dissenting opinion’s assertion, a prudent sentencing court should either provide the defendant with a copy of Rule 29.15 or Rule 24.035 or recite the precise language contained in Rule 2 9.15 (b) regarding the deadlines.

5 .While the dissenting opinion expresses concern about sentencing courts taking the risk of' accidentally stating a deadline that does not apply to a particular defendant, this Court notes only Francis and Talley have presented such a circumstance, demonstrating that virtually all sentencing courts properly advise defendants of their rights and the appropriate deadlines. Notably, Talley does not cite Francis or any other case to support its proposition that, when a circuit court misinforms the movant about the filing deadlines, the movant must demonstrate he would follow an erroneous instruction to excuse the untimely filing. Further, Talley has not been cited for this proposition by any other appellate court, and the movant in Talley did not file an application for transfer with this Court when the case was decided.

6 . All statutory references are to RSMo 2000.

7 . The dissenting opinion claims this Court's opinion in McNeal v. State, 500 S.W.3d 841 (Mo. banc 2016) (“McNeal II") unanimously rejected the holding in McNeal I. However, there is no statement to that effect in McNeal II or any substantive discussion of how the analysis in McNeal I and the cases it relied upon to grant the movant an evidentiary hearing were overruled or erroneously decided. “Generally, this Court presumes, absent a contrary showing, that an opinion of this Court has not been overruled sub silentio." State v. Honeycutt, 421 S.W.3d 410, 422 (Mo. banc 2013). “If the majority chooses to overrule [a case] it is far preferable to do so by the front door of reason rather than the amorphous back door of sub silentio," Id. (quoting Keller v. Marion Cty. Ambulance Distr., 820 S.W.2d 301, 308 (Mo. banc 1991) (Holstein, X, dissenting)). Had McNeal II intended to abrogate McNeal I, any discussion beyond citation to the objective reasonableness standard was superfluous. Yet this Court’s analysis in McNeal II continued to discuss in detail trial counsel's testimony from the evidentiary hearing, wherein trial counsel "repeatedly explained" why he failed to request a lesser-included instruction. McNeal II, 500 S.W.3d at 844. If trial counsel’s testimony was irrelevant to the analysis, as the dissenting opinion now claims, perhaps McNeal II should have omitted that analysis and stated outright that McNeal I was overruled. The fact that the movant's claims were clearly refuted by the record gleaned from the evidentiary hearing underlies this Court’s unanimous decision in McNeal II, not an unstated abrogation of the analysis in McNeal I. Likewise, this Court’s analysis in Dorsey v. State, 448 S.W.3d 276, 295 n.13 (Mo. banc 2014), came after the movant was afforded an evidentiary hearing wherein counsel offered no explanation for his strategy in failing to call a witness, and Dorsey did not state it overruled or abrogated McNeal I.