dissenting.
The majority opinion holds that David McNeal is entitled to post-conviction relief if, at an evidentiary hearing, he can éstab-lish that his trial counsel’s decision not to request a lesser-included offense instruction was unreasonable. However, even if that decision was' unreasonable, the fact that the jury convicted McNeal of burglary (i.e., the greater offense) demonstrates conclusively that he was not prejudiced by his counsel’s failure to request an instruction on trespass (i.e., the lesser-included offense). Strickland prohibits this Court from assuming that the jury failed to follow the law in the first trial or from hypothesizing that it might not follow the law in a second trial. Accordingly, I respectfully dissent.
In addition, this Court denied relief on precisely this same claim in Love v. State, 670 S.W.2d 499, 501-02 (Mo. banc 1984). There, this Court held that defense counsel’s subjective reasons for failing to request a lesser-included offense instruction were irrelevant and that the decision was an objectively reasonable exercise of trial strategy. Here, no remand is necessary because this Court can — and should — follow Love and hold that defense counsel’s decision was objectively reasonable. For this separate and independent reason, therefore, I also respectfully dissent and would affirm the motion court.
I. McNeal Suffered No Prejudice
As discussed below, there is no basis for concluding that McNeal’s counsel was ineffective for failing to request a lesser-included trespass instruction. In Love, 670 S.W.2d at 501-02, this Court not only rejected this same claim, it held that the subjective reasons for defense counsel’s *894decision were irrelevant because the reasonableness of defense counsel’s decision must be evaluated objectively.
However, even if McNeal could show that his counsel’s decision not to request a trespass instruction was objectively unreasonable, it would not matter. McNeal is not entitled to post-conviction relief because he cannot show that there is “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052.1 “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
Ineffective assistance claims are an exception to the rule of finality that attaches when a conviction is upheld on direct appeal. Recognizing that such an exception easily could swallow this rule, Strickland emphasizes how critical the prejudice requirement is. “It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding.... [Instead,] the defendant must show that they actually had an adverse effect on the defense.” Id. (emphasis added).
The majority opinion disregards this admonition and, instead, reaches a conclusion never before reached in this Court. On the issue of prejudice, the majority opinion states:
Although Johnson, Williams and similar cases [in which the trial court denied defendant’s request for the lesser-included offense instruction] involve direct appeals and not claims of ineffective assistance of counsel, the 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.
Majority Opinion at 892 (emphasis added).
In other words, because the failure to give a lesser-included offense instruction when requested is reversible error on direct appeal, the majority opinion concludes that counsel’s failure to request such an instruction also must be prejudicial for the purpose of a Rule 29.15 post-conviction motion. Leaving aside the damage this conclusion will do to the finality of convictions generally, the majority opinion fails to account for the fact that, on direct appeal, the state bears the burden of proving a lack of prejudice but, in a post-conviction proceeding, the defendant bears the burden of proving the existence of prejudice. See State v. Miller, 372 S.W.3d 455, 472 (Mo. banc 2012) (trial error “creates a rebuttable presumption of prejudice [and the] state may rebut this presumption by proving that the error was harmless beyond a reasonable doubt”). The only lesson to be drawn is that the party with the burden of proof on the issue of prejudice ordinarily loses, and should lose, in both instances.
Because prejudice is presumed on direct appeal, a new trial is required if the trial court refuses the defendant’s properly requested lesser-included offense instruction. See State v. Williams, 313 S.W.3d 656, 660 (Mo. banc 2010) (trial court’s failure to give requested lesser-included offense in*895struction requires new trial); State v. Pond, 131 S.W.3d 792, 795 (Mo. banc 2004) (same). But this presumption applies only when the trial court commits error. If a defendant does not request a lesser-included offense instruction, there is no error and no prejudice. As a result, no new trial is necessary. See State v. Dexter, 954 S.W.2d 332, 344 (Mo. banc 1997) (on direct appeal, no “plain error” in failure to give lesser-included offense instruction that was not requested); State v. Lee, 654 S.W.2d 876, 879 (Mo. banc 1983) (same).
When the defendant does not request a lesser-included offense instruction at trial and later seeks post-conviction relief on the ground that trial counsel was constitutionally ineffective for failing to request such an instruction, the situation is the same as when a defendant tries to make the type of “plain error” claim that was rejected in both Dexter and Lee. There is no presumption of prejudice because there was no error. Instead, Strickland requires that the defendant must prove that counsel was ineffective and prove prejudice, i.e., that but for counsel’s failure, the defendant would not have been convicted of the greater charge.
McNeal asserts such a claim, but the record clearly and unequivocally refutes it. If McNeal’s counsel had requested a trespass instruction, that instruction (like all lesser-included instructions) would have begun with this language: “If you do not find the defendant guilty of burglary as submitted in Instruction No. _, you must consider whether he is guilty of trespass in the first degree.” [Emphasis added.] Thus, even if a trespass instruction had been given in McNeal’s case, the jury never would have considered it because the jury found him guilty of burglary. See State v. Madison, 997 S.W.2d 16, 21 (Mo. banc 1999) (a jury is presumed to know and follow the instructions). Accordingly, McNeal cannot show that “the result of the proceeding would have been different” as required under Strickland.
Because McNeal’s jury found him guilty of burglary, thereby rendering a trespass instruction moot even if it had been requested, there are only two ways to conclude that this lesser-included offense instruction likely would have changed the outcome of McNeal’s trial. They are:
(1) that the jury did not believe the evidence was sufficient to prove McNeal guilty of burglary beyond a reasonable doubt but, because it was placed in an all-or-nothing position by the absence of the trespass instruction, the jury improperly convicted McNeal despite its oath and the court’s instructions, or
(2) that the jury did believe the evidence was sufficient to prove McNeal guilty of burglary beyond a reasonable doubt but, if it had been given the lesser-included offense instruction, the jury would have improperly ignored the evidence (as well as its oath) and convicted McNeal of the lesser offense as an act of leniency, grace, or other form of nullification.
Strickland prohibits this Court from engaging in either type of speculation. Instead, when the defendant seeks post-conviction relief, Strickland requires that:
... a court should presume ... that the judge or jury acted according to law. An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, “nullification,” and the like. A defendant has no entitlement to the luck of a lawless decision-maker, even if a lawless decision cannot be reviewed. The assessment of prejudice should proceed on the assumption that the decisionmaker is reasonably, conscientiously, and impartially applying the standards that govern the decision. *896It should not depend on the idiosyncrasies of the particular decisionmaker, such as unusual propensities toward harshness or leniency.
Strickland, 466 U.S. at 694-95, 104 S.Ct. 2052 (emphasis added).
The majority opinion fails to presume that McNeal’s “jury acted according to law,” and its analysis of the issue of prejudice not" only fails to “exclude the possibility of arbitrariness, whimsy, caprice, ‘nullification,’ and the like,” but the majority opinion openly relies on those possibilities. If Strickland is followed in this case; as it must be, there can be only one conclusion: Because the jury found McNeal guilty of burglary beyond a reasonable doubt, it never would have considered the lesser-included offense instruction even if it had been given. Cf. State v. Johnston, 957 S.W.2d 734, 751-52 (Mo. banc 1997) (“because the jury found Johnston guilty of the greater of the two instructed crimes, he could not have been prejudiced by the refusal to give an instruction on yet another lesser crime”). Accordingly, regardless of whether counsel’s decision not to request a trespass instruction was reasonable or unreasonable, McNeal was not prejudiced by that decision and he is not entitled to relief under Rule 29.15.
II. No Evidentiary Hearing is Required
The majority opinion insists that the only issue decided in this case is whether McNeal is entitled to an evidentiary hearing to “ascertain the ultimate merits of his claims.” Majority Op. at 888 n. 2. But the only conceivable reason to remand for an evidentiary hearing on the question of whether counsel was pursuing a trial strategy or simply failed to request the instruction is if one of the only two possible findings, i.e., strategy or inadvertence, merits relief. This is directly contrary to Strickland and Love.
Under Strickland, “counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690, 104 S.Ct. 2052 (emphasis added). Therefore, under Strickland, the decision by McNeal’s counsel not to seek the trespass instruction is presumed to have been a matter of trial strategy.2 This presumption of strategy is in addition to, and not merely a restatement of, the general presumption under Strickland that counsel is presumed adequate. Id.
Applying this presumption of trial strategy from Strickland, Love holds that the only question presented when a defendant claims counsel was ineffective for failing to request a lesser-included offense instruction “is whether a reasonably competent attorney would have performed differently under similar circumstances.” Love, 670 S.W.2d at 502. Indeed, Love considers precisely the same claim that the majority opinion finds merits a hearing in this case (i.e., whether counsel’s decision not to request the lesser-included offense instruction was a strategy or mistake), and holds that it does not matter. “[I]t is not important whether counsel’s decision was simply a matter of strategy based upon a *897reasonable awareness of applicable law or whether it was the product of an uninformed notion that no alternative was available.” Id.3
The majority opinion seeks to distinguish Love on the ground that an eviden-tiary hearing had been held before that case reached this Court: Whether the trial court in Love chose to hold a hearing is immaterial. What matters is- that this Court in Love plainly held that no hearing was necessary because defense counsel’s subjective reasons for not seeking the instruction are irrelevant. More importantly, the majority opinion’s remand clouds the principal holding in Love that the only question presented by this type of claim is whether any reasonably competent attorney could have done what McNeal’s counsel did. If the decision is not objectively reasonable, McNeal is entitled to relief regardless of what his counsel might say at an evidentiary hearing. By the same token, if a reasonably competent attorney in the same circumstances could have decided to forego the trespass instruction, McNeal’s Rule 29.15 motion was properly denied.
Accordingly, the majority opinion’s remand for a hearing in this case is both unnecessary and an unwarranted departure from this Court’s precedent.
III. The Decision to Forego the Trespass Instruction Was Objectively Reasonable
The strategic choice of whether to fore-go a lesser-included instruction and put the state to its proof on the crime charged is an important aspect of a defendant’s constitutional right to present a defense. This choice stands as an important check (in addition to the grand jury and preliminary hearing process) against a prosecutor believing there is no risk in charging a greater crime than the evidence likely supports because the jury always will be able to convict the defendant of a lesser-included offense. As a result, this. Court steadfastly has protected a.defendant’s right to request — and the right not to request — a lesser-included offense instruction.
[TJhe defendant may determine whether he will give the jury an “all or nothing” choice, or request submission of lesser-included offense instructions. Once having made the determination, the defendant may be held to accept the consequences of that decision. Due process considerations do not require that this Court employ a rule that encourages a defendant to refrain in every case from requesting submission of lesser included offense instruction, see the trial through to conclusion, then seek to convict the trial court of plain error after the jury returns a guilty verdict.
*898Dexter, 954 S.W.2d at 344 (emphasis added).
Because of the importance of maintaining the availability of this strategic choice, Dexter holds that it is not “plain error” for the trial court not to give a lesser-included offense instruction when the defense did not request it. Id. See also Lee, 654 S.W.2d at 879 (finding no plain error because “defense counsel frequently make a conscious decision not to request a lesser offense as a matter of trial strategy [on the ground that] the jury may convict of the lesser offense, if submitted, rather than render a not guilty verdict on the higher offense if the lesser is not submitted”) (emphasis added). If Dexter had allowed the defendant to pursue an “all-or-nothing” strategy throughout trial and then challenge that strategy after it proved unsuccessful, such a decision would have eliminated this strategic option for all future defendants because trial courts would have been forced to give lesser-included offense instructions regardless of whether the defendant requests it or risk having to retry the case.
To close this circle, Love decided in a post-conviction context essentially the same issue that the Court had decided in direct appeal cases such as Dexter, Lee, Williams, and Pond. The direct appeal decisions work together to protect defendants’ right to choose whether to pursue an “all-or-nothing” strategy by: (a) granting a new trial when the defendant properly requests a lesser-included instruction and the trial court fails to give it (see Williams and Pond) but (b) denying a new trial on “plain error” grounds when the defendant does not request such an instruction (see Dexter and Lee). Love properly follows the reasoning of the latter cases and refuses to give the defendant a second bite at the strategic apple merely because the defendant claims that defense counsel was ineffective for failing to request a lesser-included instruction instead of claiming that the trial court committed “plain error” for failing to give an instruction the defendant did not request.
Placed in the same situation, a reasonably competent attorney could have concluded that it was in the best interest of his client to deny the jury the opportunity to compromise on some middle ground between second degree murder and acquittal. An objectively reasonable choice not to submit an available instruction does not constitute ineffective assistance of counsel. Further, the reasonableness of employing an all-or-nothing strategy in a homicide prosecution is not affected by the failure of the jury to acquit. Obviously, then, movant’s counsel cannot be convicted of beiny ineffective for seeking to employ the best defense for his client by not offering the jury a middle ground for conviction.... An offer of [a lesser-included offense] instruction would be out of phase with trial strategy, which was that defendant was innocent of anything — not that the homicides were manslaughter.
Love, 670 S.W.2d at 502 (emphasis added and citations omitted).
Now, the majority opinion refuses to follow this Court’s decision in Love on the ground that here, unlike in Love, the “trespass instruction would have been consistent with the evidence and with counsel’s argument.” Majority Op. at 891. Strickland and Love make clear that such appellate backseat driving is not permitted, however.
McNeal’s trial boiled down to the question of what McNeal’s intent was at the time he entered the vacant apartment. McNeal’s sole defense was that he entered the apartment for the purpose of talking to “an acquaintance” named Tracy and not *899for the purpose of finding something to steal. Obviously, if even one juror had believed McNeal’s story, he would not have been convicted of burglary. Instead, by convicting him of burglary, the jury necessarily concluded that McNeal entered the apartment for the purpose of finding something to steal.
The majority opinion reasons that the evidence was sufficient to find that McNeal knowingly entered the apartment unlawfully without also having to find that he entered the vacant apartment with the intent to steal. But this always is true when considering a lesser-included offense. What the majority fails to see is that McNeal’s entire defense was his claim that he entered the apartment legally, i.e., to see Tracy and to ask her for money, not that he entered the apartment illegally but without an intent to commit a crime.
The majority opinion notes that McNeal’s testimony doomed his argument that he entered the apartment lawfully. This is correct. McNeal inadvertently contradicted his own theory in the following colloquy:
A: Okay. I went down to Tracy’s apartment, knocked on her door, I heard a radio playing.... Well, I opened the door, “Tracy,” but to my surprise it was empty.
Q: What do you mean empty?
A: She was moved. It wasn’t nothing there....
Q: Okay, but when you went in there— when you went in there, why did you go in there?
A: I went in there looking for Tracy. I opened the door up, “Hey Tracy,” but now I’m in shock. It’s empty. I step in there and I look over and see the radio playing, you know, because it’s a shock to me. I didn’t have' any idea the lady moved and so I’m standing there. And not to confuse the jurors, yes, I stole the drill. I’m not denying that, but I didn’t go over there burglarously to steal anything. I went looking for Tracy.
Read carefully, McNeal clearly admitted that he understood Tracy had moved out before he entered the apartment: “I’m in shock. It’s empty. I step in[.]” As a result, the jury realized that McNeal’s guilt turned on the question of whether the felonious intent necessary to convict him of burglary could arise after McNeal opened the door but before he entered the vacant apartment. No juridical mind reading is required to divine the jury’s thoughts because, during its deliberations, the jury sent the following note to the court:
For the purpose of Instruction No. 5 [regarding burglary] and the second point [regarding intent], can the intent to commit the crime occur after he opens the door for burglary? Must it occur prior to opening/touching the door?
[Emphasis added.]
The burglary instruction stated that McNeal’s felonious intent only needed to be present when he “entered” the apartment, not when he opened the door. Accordingly, the trial court replied that the jury must be guided by the instructions. Because McNeal inadvertently confessed that his only lawful excuse for entering the apartment (i.e., to talk to Tracy) was gone before he crossed the threshold of the obviously vacant' apartment, the evidence was sufficient to find that McNeal knowingly entered the apartment unlawfully. But, because the court of appeals already affirmed the sufficiency of the evidence to support McNeal’s burglary conviction, State v. McNeal, 292 S.W.3d 609, 609 (Mo.App. E.D.2009), the evidence ■ necessarily was sufficient to support the lesser-included offense of trespass. That is not the question.
*900The question is whether there is -any basis for concluding that the significance of McNeal’s inadvertent admission was as obvious to McNeal’s counsel in the heat of the trial as it is to the majority opinion now. Remember, counsel did not have the luxury of time and a transcript to discover this inadvertent admission, nor did counsel have the benefit of knowing that the jury would send a note during deliberations emphasizing how significant the jury believed McNeal’s admission was. Even if counsel should have appreciated the gravity of McNeal’s admission and should have guessed that the jury would do so as well, there is no basis to conclude that McNeal’s admission was so obvious and compelling that it made it unreasonable for counsel not to abandon McNeal’s entire defense up to that point (i.e., that he was in the apartment lawfully to see Tracy about some money) and immediately pursue an entirely new — and contradictory — defense (i.e., that McNeal knew he was entering the apartment illegally but didn’t form the intent to steal until after he was inside).
It is hardly unprecedented' in the annals of criminal trials for a defendant inadvertently to poke a hole in his own defense. Nor is it unprecedented that McNeal’s counsel decided to stick with McNeal’s defense even though that defense might have been stronger before McNeal’s testimony than it was after. Just because McNeal’s defense theory was a leaky vessel, this did not necessarily mean that defense counsel was required to abandon ship. Whatever its shortcomings, McNeal’s original theory had the virtue of presenting the jury with an innocent explanation (however flawed or inconsistent) for why McNeal went into the apartment. If McNeal’s counsel had requested a trespass instruction, he would have been forced to admit what McNeal’s testimony only suggested, i.e., that McNeal had no innocent reason for entering the apartment and, in fact, he knowingly entered the apartment unlawfully. A reasonable attorney might have concluded that, once he openly abandoned McNeal’s only innocent explanation for being in the apartment, the jury would be more likely to believe that he entered for the purpose of finding something to steal (and convict him of burglary) than if he stuck to McNeal’s version no matter how leaky or inconsistent it might be.
Accordingly, McNeal’s counsel had an undeniably reasonable basis for sticking with McNeal’s story and denying the jury an additional “middle ground” of trespass.4 A lesser-included offense instruction would not have avoided the hole that McNeal dug for himself; it only would have made it *901deeper. Accordingly, Love is directly on point, and I would affirm the motion court’s judgment on that basis.5
IV. Conclusion
I believe the majority opinion is motivated by the very best intentions and a sincere belief that a different trial strategy might have yielded a better result for McNeal. But the majority opinion’s holding will put defense counsel and trial courts in an impossible situation going forward, and, ultimately, the price of its decision will be borne by all future defendants. From now on, a defense counsel who decides not to request a lesser-included offense instruction risks a post-conviction determination (and possible disciplinary sanctions) that this decision was objectively unreasonable and failed to meet the minimal standards of constitutional competence. Therefore, anytime counsel elects not to request such an instruction when the evidence would support it, counsel (at a minimum) should notify the trial court of the majority opinion in this case.
And what then is the trial court to do? Though Dexter and Lee hold that the trial court commits no error by refusing to give a lesser-included offense instruction that the defense does not request, the majority opinion here makes it clear that a defendant may be entitled to a second trial if counsel’s “all-or-nothing” strategy fails at the first. On the other hand, the trial court knows that there is no reason (other than the encroachment on defendant’s right to make key strategic decisions) not to give such an instruction sua sponte whenever it is supported by the evidence. Therefore, it seems likely that the trial courts will give the lesser-included instruction, whether requested or not.
Naturally, this will deprive defendants of an important choice as to how they wish to fashion their own defenses; a choice that Williams, Pond, Dexter, Lee and Love all sought to protect. Thus, in the future, defendants who might have secured an acquittal using an “all-or-nothing” approach will be deprived of that option and, instead, will face convictions for lesser-included offenses that they otherwise might have preferred the jury never consider.
For the foregoing reasons, I respectfully dissent.
. To prevail on his ineffective assistance claim, McNeal must “satisfy the two-prong Strickland test: first, [he] must show that his attorney failed to exercise the level of skill and diligence that a reasonably competent attorney would exercise in a similar situation and, second, that trial counsel’s failure prejudiced the defendant.” Strong v. State, 263 S.W.3d 636, 642 (Mo. banc 2008) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
. Until now, this Court has applied this Strickland presumption faithfully. See, e.g., State v. Hall, 982 S.W.2d 675, 680 (Mo. banc 1998) ("[t]here is a presumption that any challenged action was sound trial strategy and that counsel rendered adequate assistance and made all significant decisions in the exercise of professional judgment”); State v. Simmons, 955 S.W.2d 729, 746 (Mo. banc 1997) (movant "must overcome the presumptions that any challenged action was sound trial strategy and that counsel rendered adequate assistance and made all significant decisions in the exercise of professional judgment”).
. Even if defense counsel's subjective reasons are material, McNeal’s Rule 29.15 motion failed to allege any specific facts to rebut the Strickland presumption that his counsel’s failure to request the trespass instruction was a matter of trial strategy. For example, McNeal does not allege that he instructed counsel to request the instruction and was ignored. Nor does he allege that his counsel failed to discuss the issue with him or adequately disclose the ramifications of the decision. Instead, McNeal alleges only the bare legal conclusion that his counsel's failure to request the instruction was the result of "neglect or inadvertence.” Therefore, McNeal falls far short of the requirement in Webb v. State, 334 S.W.3d 126, 128 (Mo. banc 2011), that a post-conviction motion must plead facts — not conclusions — showing a right to post-conviction relief before a hearing can be granted. However, now that the majority opinion finds this bare assertion sufficient, hearings should be held in every case challenging defense counsel’s trial strategy, thereby effectively eliminating the trial strategy presumption in Strickland.
. The strategy employed by McNeal’s counsel was even more objectively reasonable because that strategy never was the “all-or-nothing” approach that typically arises in these cases. Even though a lesser-included offense instruction can give the jury a "middle ground,” McNeal’s counsel did not need to request one on that basis because the jury already had one. Here, because McNeal .was charged with stealing, McNeal’s counsel did not need the trespass instruction to argue that the jury should acquit him of burglary and convict him of something less serious. Not only could McNeal’s counsel make such an argument, he did make it — and without having to volunteer McNeal for a felony trespass conviction: “Now ... obviously I think my client’s not going to walk out of here without some kind of conviction, but you have two separate counts [of burglary and stealing].... I don’t know if [the victim] will be satisfied or not, but if you decide based on the evidence you've seen and heard here, you’ll find [McNeal] not guilty on [burglary] and you'll find him guilty on [stealing].” Accordingly, this is not — and never was — the sort of "all- or-nothing” situation that the majority opinion relies upon for its dire prediction that juries will ignore their oaths and instructions and convict defendants of crimes the state failed to prove rather than let a "plainly guilty” defendant go free. See Majority Op. at 892 (quoting Breakiron v. Horn, 642 F.3d 126, 138 (3rd Cir.2011)).
. Patterson v. State, 110 S.W.3d 896 (Mo.App. W.D.2003), relied upon in the majority opinion, does not stand apart from Love. In Patterson, the record clearly refuted the Strickland presumption because defense counsel did request that the trial court give the lesser-included offense instruction. However, because of the incompetent manner in which the request was made, the instruction was not given. Accordingly, Strickland’s trial strategy presumption was clearly refuted, Love did not control, and post-conviction relief was appropriate.