STATE OF MISSOURI, )

) Plaintiff-Respondent, ) ) vs. ) No. SD32883 ) ANDREW LUKE LEMASTERS, ) Filed: June 20, 2014 ) Defendant- Appellant. )
APPEAL FROM THE CIRCUIT COURT OF NEWTON COUNTY

Honorable Timothy W. Perigo, Circuit Judge AFFIRMED IN PART; REVERSED AND REMANDED IN PART Andrew Luke Lemasters ("Defendant") appeals from h is conviction of first-degree statutory sodomy. See § 566.062. 1 He raises two points on appeal: (1) the trial court erred in denying his motion to disqualify the Newton County Prosecuting Attorney's Office and (2) the trial cou rt erred in entering a written judgment showing convictions for two counts of firs t-degree statutory sodomy when Defendant was in fact convicted of only one co unt. We disagree with the arguments raised in Defendant's first point but fin d merit in Defendant's second point. Consequently, for the reasons explained bel ow, we affirm Defendant's

1 Unless otherwise indicated, all statutory referenc es are to RSMo 2000.2

conviction for first-degree statutory sodomy but re verse and remand the case for entry of an amended judgment.

Factual and Procedural Background Defendant's daughter, H.L. ("Victim"), was born in 1992. Pamela Lemasters ("Lemasters") married Defendant in July 1 992 and raised Victim as her own child. During the spring of 2001 when the family lived in Newton County, Defendant called Victim into his bedroom on e day, told her to take her clothes off, and put his finger in her vagina. Oth er incidents of sexual abuse continued throughout Victim's childhood, but she di d not tell anyone at the time because she was afraid of Defendant and afraid she would be separated from Lemasters and other members of the family. Victim eventually disclosed Defendant's acts of sexual abuse. Defendant was charged with two counts of first-deg ree statutory sodomy. Initially he was represented by Melia Cheney ("Chen ey") who was employed by the Missouri State Public Defender System ("MSPD"). Cheney subsequently left the MSPD and joined the Newton County Prosecuting At torney's Office. While the case was pending, Defendant filed a motion to d isqualify the Newton County Prosecuting Attorney's Office because Cheney had pr eviously represented Defendant in this case. The trial court held a hearing regarding the motio n to disqualify. The testimony and court documents reveal the trial cour t ordered the MSPD to represent Defendant on August 7, 2012. The MSPD the n sent a form letter to Defendant on August 8, 2012, advising him an attorn ey would subsequently visit him as well as giving other information. On August 16, 2012, Cheney entered her3

written appearance in Defendant's case. Her office received telephone calls from Defendant's family members, but Cheney asked her se cretary to call them back and inform them she could not speak with them about Defendant's case. Cheney attempted to get a bond reduction for Defend ant. Cheney believed the bond reduction request involved a court appeara nce, but she "did not participate in a bond reduction hearing where witne sses were called to the stand." Cheney met with Defendant briefly on Augus t 19 or 20, 2012. After this fifteen minute interview ended, Cheney asked one of her investigators to conduct a recorded interview with Defendant because Defenda nt had "a problem using too many pronouns" such that Cheney had difficulty "keep[ing] track of what he's talking about." Finally, Cheney completed an inter -office transfer memorandum on September 7, 2012, indicating other public defend ers were working on the case for preliminary hearing. She left the MSPD on Se ptember 7, 2012, and began work at the Newton County Prosecuting Attorne y's Office on September

10, 2012. Cheney testified that once she began work at the N ewton County Prosecuting Attorney's Office she did not have any participation "in the prosecution of any individuals where [she] previous ly represented them." Additionally, she did not discuss any of those case s with her colleagues at the Newton County Prosecuting Attorney's Office except to say she had previously represented the individuals involved. Cheney worke d only with cases where the defendants were represented by private attorneys or where the defendants represented themselves.4 After the hearing, the trial court denied Defendant 's motion to disqualify the Newton County Prosecuting Attorney's Office. Defendant was tried by a jury on June 4 - 5, 2013. During the instruction conference, the trial judge noted "[t]he state has elected to dismiss one of the two counts." The jury then found Defendant guilty of o ne count of first-degree statutory sodomy. The judge sentenced Defendant to 31 years in the Missouri Department of Corrections. Defendant appeals. Discussion Point I: Alleged Disqualification In his first point, Defendant argues the trial cou rt erred in denying his motion to disqualify the Newton County Prosecuting Attorney's Office. This argument is without merit because Cheney was approp riately screened from the prosecution once she joined the Newton County Prose cuting Attorney's Office. "Generally, the court's decision on a motion to di squalify is reviewed based on the abuse of discretion standard." State v. Walters , 241 S.W.3d 435, 437 (Mo. App. W.D. 2007). " Abuse of discretion only occurs if a 'ruling is cle arly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice a nd indicate a lack of careful consideration.'" State v. Hawkins , 328 S.W.3d 799, 808 (Mo. App. S.D. 2010) (quoting State v. Taylor , 134 S.W.3d 21, 26 (Mo. banc 2004)). "If reasonabl e persons can differ as to the propriety of the trial court's action, then it cannot be said that the trial court abused its discretion." Id. (quoting Taylor , 134 S.W.3d at 26). The facts of this case show no abuse of discretion.5

At the time of trial, Cheney was an attorney repre senting a government agency, the Newton County Prosecuting Attorney's Of fice. She had previously represented Defendant in the same criminal case as his public defender. Cheney did not participate in the prosecution of Defendant 's case while she worked for the Newton County Prosecuting Attorney's Office and disclosed no information regarding his case. Consequently, this case involv es imputation of a conflict involving a government attorney. The applicable ru le is Rule 4-1.11(d). 2 Rule 4- 1.10(d); Rule 4-1.11 cmt. 2. That rule provides as follows: Except as law may otherwise expressly permit, a law yer currently serving as a public officer or employee: (1) is subject to Rules 4-1.7 and 4-1.9; and (2) shall not: (i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless the appropriate government agency gives its informed consent, confirmed in writing[.] Rule 4-1.11(d). Rule 4-1.7 governs concurrent conflicts, so is not relevant to the disposition of this case. Rule 4-1.9, governing du ties to former clients, provides that "[a] lawyer who has formerly represented a cli ent in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adv erse to the interests of the former client unless the former client gives inform ed consent, confirmed in writing." Rule 4-1.9(a).

2 Unless otherwise indicated, all rule references ar e to Missouri Court Rules (2013).6 These rules prohibit the government attorney's part icipation in a matter where the attorney participated personally and subs tantially prior to joining the government agency, but, contrary to the practice in volving private attorneys, see Rule 4-1.10, they do not impute the attorney's conf lict to the entire agency. As the comments to the rules explain, "[b]ecause of th e special problems raised by imputation within a government agency, Rule 4-1.11( d) does not impute the conflicts of a government lawyer currently serving as an officer or employee of the government to other associated government offic ers or employees, although ordinarily it will be prudent to screen such lawyer s." Rule 4-1.11 cmt. 2. In the present case, Cheney did not participate in any way in Defendant's case once she joined the Newton County Prosecuting Attorney's Office. Thus, Cheney complied with Rule 4-1.9(a) which prevented her participation in Defendant's case because she had participated in th e case during her employment with the MSPD. Furthermore, Cheney did not talk to other attorneys in the Newton County Prosecuting Attorney’s Office about t he case or appear in court on any MSPD dockets. Thus, the Newton County Prosec uting Attorney's Office complied with Rule 4-1.11. Cheney's individual con flict was not imputed to the government office as the procedures implemented to screen Cheney were appropriate. See Rule 4-1.11 cmt. 2. The trial court did not abuse its discretion when it denied Defendant's motion to disqualify. In reaching this conclusion, we have not overlooke d our previous decision
in State v. Reinschmidt , 984 S.W.2d 189 (Mo. App. S.D. 1998). Rather, we believe Reinschmidt

was incorrectly decided.7

In Reinschmidt , one of the attorneys associated with the prosecut or's office represented the defendant for two years whil e she worked as an assistant public defender. Id. at 192. After the former defense attorney started working for the prosecutor's office, the defendant filed a motion to disqualify the prosecutor's office. Id. at 191. The former defense attorney submitted an affidavit assuring the trial court she was not invo lved in the defendant's prosecution, and the trial court overruled the moti on. Id. at 190-91. The defendant was subsequently tried and convicted. Id. at 191. On appeal, the defendant again argued the prosecut or's office should have been disqualified. Id. This Court found the situation created "such susp icions and appearances of impropriety" that disqualificati on of the entire prosecutor's office was required. Id. at 191-92. That conclusion was incorrect because it did not a pply Rule 4-1.11. Nowhere in the Reinschmidt opinion did the Court cite to the applicable rule. Furthermore, the phrase the Court did use—"appearan ce of impropriety"—echoes the former rules of professional conduct which stat ed lawyers should strive to avoid "the appearance of impropriety." Rule 4, EC 9 -6, Missouri Court Rules (1983) (repealed 1986). However, those rules were repealed when the current rules were adopted in 1986. State ex rel Horn v. Ray , 138 S.W.3d 729, 732 (Mo. App. E.D. 2002). Thus, Reinschmidt applied a rule that was no longer in force. Consequently, it was improperly decided and should no longer be followed. Defendant's reliance on State v. Croka , 646 S.W.2d 389 (Mo. App. W.D. 1983), is unpersuasive for a similar reason. Croka was decided in 1983. Thus,8

Croka applied the prior set of disciplinary rules which stated lawyers should avoid an "appearance of impropriety." Rule 4, EC 9 -6, Missouri Court Rules (1983) (repealed 1986). As explained above, those rules were repealed in 1986.
Since Croka did not apply the rule that is currently in force, it has no bearing on the proper result in this case. Finally, Defendant also cites State v. Ross , 829 S.W.2d 948 (Mo. banc 1992), in support of his argument for reversal. Ross is different from the present case because it involved a different type of confli ct. In Ross , the prosecuting attorney's office charged the defendant with assaul t in connection with a fight. 829 S.W.2d at 949. The defendant subsequently consu lted with a private law firm in the hope of filing a civil lawsuit arising out of the same transaction. Two of the attorneys with that private law firm were al so part-time prosecuting attorneys and received confidential information reg arding the civil case at the same time the criminal prosecution was taking place

. Id. The Supreme Court of Missouri discussed prior case law and the text of R ule 4-1.7 and Rule 4-1.11 before deciding the concurrent conflict created an appeara nce of impropriety. Id. at
951. Here, unlike in Ross , the conflict was not created by a concurrent representation but by Cheney's duties to a former c lient. A concurrent conflict of interest creates more potential dangers to the affe cted client. Since Ross involved a concurrent conflict of interest and the present case does not, Ross is not controlling. Cheney was properly screened from the prosecution of Defendant’s case when she joined the Newton County Prosecuting Attor ney's Office. This9

procedure complied with Rule 4-1.9(a) and Rule 4-1. 11(d). Defendant has not alleged that Cheney's prior employment affected his trial in any way. The mere fact that an assistant prosecuting attorney who was properly screened previously represented a defendant in the same criminal matter should not automatically be imputed to require a prosecuting attorney and his e ntire staff to be disqualified. Consequently, the trial court did not abuse its dis cretion in denying Defendant's motion to disqualify the entire Newton County Prose cuting Attorney's Office. Defendant's first point is denied.

Point II: Error in the Written Judgment In his second point, Defendant argues the trial co urt erred in entering a written judgment which reflects convictions for two offenses when in fact Defendant was convicted of only one offense. The St ate concedes this was error, and we agree. Clerical errors in the sentence and judgment in a criminal case may be corrected by an order nunc pro tunc where the written record does not reflect what was actually done. State v. Carroll , 207 S.W.3d 140, 142 (Mo. App. E.D. 2006); Rule 29.12(c). "When the decision of the tr ial court as announced in open court was inaccurately memorialized, it is clear th ere was a clerical error." State
v. Kerns , 389 S.W.3d 244, 248 (Mo. App. S.D. 2012). Here, it is clear the written judgment does not re flect what actually occurred during trial and sentencing. Defendant wa s initially charged with two identical counts of first-degree statutory sodomy. During the instruction conference, the judge stated the State had dismissed one of the charges. Only one verdict director was submitted to the jury, and the jury returned only one guilty10

verdict. Then, the trial court specifically impose d one sentence of 31 years
incarceration. Nevertheless, the judgment states Defendant was fo und guilty of two counts of first-degree statutory sodomy. Under thi s record, the trial court's intentions are clear—Defendant was convicted of one count and was sentenced to serve one term of 31 years incarceration—and a nunc pro tunc order is appropriate. See State v. Allison , 326 S.W.3d 81, 95 (Mo. App. W.D. 2010). Defendant's second point is granted. Decision Defendant's conviction for first-degree statutory sodomy is affirmed. The case is remanded for entry of an amended judgment r eflecting only one conviction for that offense. Sheffield, J. - Opinion Author Francis, C.J. - CONCURS Rahmeyer, J. - CONCURS Bates, J. - CONCURS Lynch, J. - CONCURS Scott, J. - CONCURS Burrell, J. - CONCURS