Case Law Update: 2011-2014 Cumulative Edition

Holding: As an initial matter, the Supreme Court in Eastburn v. State, 400 S.W.3d 770 (Mo. banc 2013), held that a “motion to reopen” does not exist, and that motions such as Movant’s should be styled “motion to file an untimely postconviction relief motion based on abandonment.” The appellate court will treat Movant’s motion as such. The State claims that Movant’s case must be dismissed on grounds of res judicata, but the appellate court in 1993 did not make a finding on abandonment and such a finding would not have been necessary to the appellate court’s decision because that court concluded that Movant’s Form 40 had to be dismissed as untimely regardless of whether Movant was abandoned, stating “reliance on counsel’s erroneous advice does not excuse the untimely filing” of a Form 40. In 2008, in McFadden, the Supreme Court held that abandonment can occur where the untimely filing was caused by the overt action of postconviction counsel. Although Movant contends that his case is indistinguishable from McFadden, the Western District need not decide that issue now, because the motion court dismissed Movant’s motion regarding abandonment on grounds that the court lacked “jurisdiction” to hear it. That is clearly erroneous because Movant filed his motion regarding abandonment in the original motion court, and the court was authorized to hear it. Movant articulated a colorable ground for abandonment. Dismissal is reversed and case remanded for further proc
Middleton v. State, No. WD73290 (Mo. App. W.D. 10/18/11):

Holding: Where Movant filed a second motion to reopen postconviction proceedings on grounds of “abandonment,” which the motion court denied via a docket entry, this was not an appealable “judgment” under Rule 74.01(a) but only a non-appealable “order”; however, the motion court does have “jurisdiction” to consider a second motion to reopen.

eedings.
State v. Besendorfer, No. WD73968 (Mo. App. W.D. 8/14/12):

Where Defendant was sentenced on same date as his bench trial and had not waived his right to file a new trial motion, this violated Rule 29.11, made the judgment void, and an appeal is premature since there is no judgment to appeal; this is true even though Defendant requests the appellate court decide the case on the merits.

Facts: Defendant was convicted at a bench trial in a DWI case. Although he had 15 days after trial to file a new trial motion, he was sentenced on the same day as the trial. He then filed a notice of appeal.

Holding: Rule 29.11(c) prohibits a trial court from rendering judgment until the time for filing a new trial motion has expired. Unless there was an express waiver of the right to file a new trial motion by Defendant, any judgment rendered before the time for filing a motion for new trial is premature and void. Where judgments are premature and void, there is no judgment to appeal. Here, there was no express waiver. Even though Defendant requests that the appellate court resolve the case on the merits and says that this will promote judicial economy since there will not need to be a second appeal, the appellate court must dismiss because the judgment is not final.

Lindner v. State, 404 S.W.3d 926 (Mo. App. W.D. 2013):

Holding: Where Movant alleged for the first time on appeal that postconviction counsel had abandoned him by filing a defective amended motion, the appellate court would not consider this claim because Movant had not filed in the motion court a “motion to reopen the proceeding due to abandonment,” or a motion to amend judgment under Rule 78.07(c) to allege abandonment; to preserve the issue of abandonment for appeal, a Movant must have first complied with Rule 78.07(c) by filing a motion to amend judgment in the motion court.
* Ryan v. Schad, 133 S.Ct. 2548 (2013):

Holding: 9th Circuit abused its discretion in failing to issue a mandate immediately upon receiving a copy of Supreme Court’s order denying death-sentenced petitioner’s cert. petition, which challenged the denial of federal habeas relief; Rule 41(d)(2)(D) of the federal appellate rules states that an appellate court “must issue the mandate immediately” when a copy of the Supreme Court’s order denying cert. is filed.
* Maples v. Thomas, ___ U.S. ___, 90 Crim. L. Rep. 539 (U.S. 1/18/12):
Holding: Where petitioner’s state postconviction counsel abandoned him without telling him and thus petitioner missed a state postconviction filing deadline, this constituted “cause” to excuse the procedural default for federal habeas purposes.
U.S. v. Orti-Garcia, 2011 WL 6061352 (1^st Cir. 2011):

Holding: Defendant’s appellate waiver was not knowing and voluntary, where district court did question defendant about his understanding of the waiver provision, but did not ascertain whether defendant understood the maximum penalty.
Blackman v. Ercole, 2011 WL 5084322 (2d. Cir. 2011):

Holding: Where the ruling by the Clerk of the United States District Court consisted only of an “X” above the “Granted” option on a memorandum for a certificate of appealability, the case was remanded for a determination of which issues were worthy of appeal.
Ross v. Varano, 2013 WL 1363525 (3d Cir. 2013):

Holding: Petitioner was entitled to equitable tolling of time to file habeas where his direct appeal appellate attorney misled him as to the status of his appeal, the appellate court’s refusal to replace his attorney, and neglect by his attorney including refusal to accept petitioner’s calls and misstatements of law.
Rodriguez v. Thaler, 2011 WL 6184481 (5^th Cir. 2011):

Holding: While defendant signed a document indicating that, upon his guilty plea, the State would recommend to the court that defendant waived any rights he might have to appeal, the transcript of his sentencing revealed that the State did not actually make the recommendation, and so defendant did not waive his right to direct appeal.
Mackey v. Hoffman, 2012 WL 2369301 (9^th Cir. 2012):

Holding: Where an attorney’s abandonment causes a notice of appeal not to be filed, district court may grant relief under the “catch-all” clause of the Federal Rules of Civil Procedure.
U.S. v. Lonjose, 90 Crim. L. Rep. 451 (10^th Cir. 12/28/11):

Holding: Even though Defendant waives his right to “appeal any sentence within the statutory range,” this did not prevent Defendant from appealing post-sentencing modifications to his conditions of supervised release.
People v. Maultsby, 2012 WL 19370 (Cal. 2012):

Holding: Certificate of probable cause is not required for appeal where defendant does not plead guilty or no contest.
State v. Gault, 90 Crim. L. Rep. 74 (Conn. 4/10/12):

Holding: Victims-rights’ amendment does not grant victims the right to appeal an adverse ruling in a defendant’s criminal case; hence, an alleged crime victim lacked standing to prosecute an appeal of an order issued in a prosecution of the defendant for kidnapping for the purpose of committing sexual assault denying her motion to extend indefinitely the sealing of an affidavit in support of an arrest warrant for the defendant.
Gordon v. State, 2011 WL 4596660 (Fla. 2011):

Holding: Defendant’s may not proceed pro se in postconviction appeals if they have been sentenced to death.
Gable v. State, 2011 WL 6258458 (Ga. 2011):

Holding: Extensions of time may be granted for filing discretionary applications to appeal.
State v. Bogguess, 2012 WL 167334 (Kan. 2012):

Holding: Lack of objection by defendant to the admission of defendant’s statements to the police did not preclude appellate review the previous denial of defendant’s motion to suppress the statements.
Grayson v. State, 93 Crim. L. Rep. 157 (Miss. 4/18/13):

Holding: Mississippi recognizes right to effective assistance of counsel in postconviction death penalty cases (but finds was harmless here); “Because this Court has recognized that PCR proceedings are a critical stage of the death-penalty appeal process at the state level, today we make clear that PCR petitioners who are under sentence of death have a right to the effective assistance of PCR counsel”; petitioner had alleged that appointed PCR’s counsel large caseload prohibited him from investigating case.
State v. Benn, 2012 WL 458609 (Mont. 2012):

Holding: A criminal proceeding is not abated ab initio in its entirety upon the death of a defendant.
State v. Penado, 2011 WL 4635057 (Neb. 2011):

Holding: State’s petition for appeal of trial court’s finding that defendant was not competent to stand trial was denied because the finding of incompetency was not a final order, in that further action was required to completely dispose of the case.
People v. Bradshaw, 2011 WL 6157282 (N.Y. 2011):

Holding: Defendant did not willingly waive right to appeal by pleading guilty to rape, where the trial court asked whether defendant understood its remarks about the appeal waiver in the plea agreement and defendant responded by asking about the mandatory fees associated with his plea.
State ex rel. DeWine v. Court of Claims of Ohio, 2011 WL 5009412 (Ohio 2011):

Holding: Ohio Court of Claims lacks jurisdiction to review Attorney General’s decisions granting or denying payment of attorney fees in connection with an award for reparations where a statute giving Attorney General the authority to grant or deny reparations and attorney fees allows for appeal of his decision regarding reparations but is silent on the issue of attorney fees.
Whitehead v. State, 2013 WL 1163919 (Tenn. 2013):

Holding: Time for filing postconviction motion was tolled where direct appeal appellate counsel abandoned petitioner by incorrectly calculating the deadline for filing, failing to notify him that the U.S. Supreme Court had denied cert in his case, failing to tell him that their attorney-client relationship had ended, and failing to send petitioner his file until after the deadline passed.
In re Heidari, 2012 WL 1355964 (Wash. 2012):

Holding: Following the reversal of a conviction for second-degree child molestation due to insufficient evidence, the appellate court could not remand for resentencing on the lesser included offense of attempted child molestation because the jury was not instructed on the attempt offense.
People v. Arriaga, 2011 WL 6002931 (Cal. App. 2011):

Holding: Appeal challenging denial of a motion to vacate a judgment entered upon a guilty plea based on inadequate advisement of the potential immigration consequences does not require a certificate of probable cause, as it affects the substantial rights of defendant.
State v. Barajas, 2011 WL 6188502 (Or. Ct. App. 2011):

Holding: Defendant’s failure to object to trial court’s unilateral decision to waive defendant’s right to closing arguments did not waive the issue for appellate review, where an attempt to object would have been futile.

Ake Issues
* Hinton v. Alabama, ___ U.S. ___, 94 Crim. L. Rep. 613, 134 S.Ct. 1081 (U.S. 2/24/14):

Holding: Counsel in capital case was ineffective for erroneously believing that he could not seek extra funding to hire a more qualified forensic expert; even though choice of expert is usually a strategy decision, the attorney’s decision here was not based on any strategy but on a mistaken belief that the only available funds were capped at $1,000 and that there was only one ballistics expert available at that rate; “[a]n attorneys’ ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland.”
Lowe v. State, 94 Crim. L. Rep. 364 (Miss. 12/12/13):

Holding: Indigent Defendant charged with downloading child pornography from Internet had due process right under Ake to a court-appointed expert to help him rebut State forensic expert’s opinion that only Defendant, rather than someone else, downloaded the images.
Evans v. State, 92 Crim. L. Rep. 522 (Miss. 1/31/13):

Holding: Defendant was entitled to funding for an expert on PTSD to prepare a defense for murdering his father.
State v. Parduhn, 90 Crim. L. Rep. 11 (Utah 9/27/11):

Holding: Indigent defendant with private counsel can obtain state-paid expert assistance.
Doe v. Sex Offender Registry Bd., 2014 WL 657958 (Mass. App. 2014):

Holding: At sex offender classification hearing, Defendant was entitled to funding to present expert testimony about how to interpret complex statistical and scientific studies demonstrating that age affected recidivism rates in sex cases.

Appellate Procedure
State v. Porter, 2014 WL 3729864 (Mo. banc July 29, 2014):

Holding: The “corroboration rule” (which provided that an appellate court is to disregard sex victim’s testimony if contradictory and uncorroborated) and the “destructive contradictions doctrine” (which allowed an appellate court to disregard testimony relevant to an element of the crime if the testimony was inconsistent and contradictory) are abolished because they are inconsistent with the appellate standard of review, whereby the appellate court defers to factual findings of the trial court or jury.
State v. Bolden, No. SC92175 (Mo. banc 7/3/12):

Holding: Trial court has no duty to sua sponte correct an erroneous jury instruction proffered by the defense, and appellate court will not conduct plain error review of such an instruction. To the extent that State v. Beck, 167 S.W.2d 767, 777-78 (Mo. App. 2005) holds to the contrary, it is overruled.
Shaefer v. Koster, No. SC91130 (Mo. banc 6/14/11):

Holding: (1) Criminal defendant cannot bring declaratory judgment action to challenge constitutionality of statute under which they are charged because there is an adequate other remedy, i.e., to raise the alleged unconstitutionality in their criminal case; (2) Sec. 516.500 which places a time limit on when a person can challenge the constitutionality of a statute does not apply to a criminal defendant who raises a challenge to the statute as a defense to the criminal case.

Editor’s Note: The dissenting opinion would allow the declaratory judgment action and would find that the 2008 version of Sec. 577.023.16 which enacted certain DWI penalty enhancements (since repealed and replaced by a new statute) violates the Missouri Constitution’s prohibitions about clear title, original purpose and single subject, Art. III, Secs. 21 and 23, Mo.Const. The bill’s title dealt with “watercraft,” the bill was originally only about “watercraft” and adding DWI provisions violated the title, original purpose and single-subject provisions. The majority opinion did not reach the merits of the case.
Westergaard v. State, 2014 WL 1225223 (Mo. App. E.D. March 25, 2014):

Holding: (1) Even though the in forma pauperis motion was filed before the Notice of Appeal, it is considered filed with the Notice of Appeal for purposes of Rule 81.04, which states that a trial court shall file a Notice of Appeal on the date it was received if it is accompanied by a motion to appeal in forma pauperis, and (2) The filing date of the Notice of Appeal is the date it was actually filed, even if the forma pauperis motion itself is not granted until a later date.
A.L.C. v. D.A.L., 2014 WL 707163 (Mo. App. E.D. Feb. 25, 2014):

Holding: Where Associate Circuit Court failed to make a recording of the order of protection hearing so that no transcript was available for appeal, judgment is reversed and remanded for new trial since Sec. 512.180.1 requires a record be kept in all contested civil matters before an Associate Circuit Judge.
State v. Famous, 2013 WL 6498989 (Mo. App. E.D. Dec. 10, 2013):

Holding: Order denying post-sentence petition for credit for time spent on probation is not appealable because it is not a “final judgment” under Sec. 547.070.
State v. Brooks, 2013 WL 798853 (Mo. App. E.D. March 5, 2013):

Holding: Alleged evidentiary errors at a sentencing hearing after a guilty plea are not cognizable on direct appeal because they do not involve subject matter jurisdiction or sufficiency of the information or indictment; the proper remedy for challenging the legality of a sentence following a guilty plea is a Rule 24.035 motion.
State v. Hudson, No. ED96609-01 (Mo. App. E.D. 11/20/12):

Where after Defendant’s trial but while his appeal was pending the Supreme Court declared a portion of the harassment statute as unconstitutionally overbroad, Defendant’s conviction under that statute must be set aside because it is plain error to convict under an unconstitutional statute.

Facts: Defendant was convicted of harassment under Sec. 565.090.1(5) for text messages, phone calls and name-calling to an ex-girlfriend. Sec. 565.090.1(5) provided that a person commits the crime of harassment if he knowingly makes repeated unwanted communication to another person. After Defendant’s trial but while his appeal was pending, the Supreme Court found in State v. Vaughn, 366 S.W.3d 513 (Mo. banc 2012), that Sec. 565.090.1(5) was overbroad under the First Amendment because it criminalized protected speech. Defendant contends that his conviction constitutes plain error.

Holding: Even though Defendant did not raise the constitutional issue in the trial court, plain error results if a person is convicted under an unconstitutional statute. Such a conviction is not merely erroneous, but is illegal and void. Where the law changes after a judgment but before the appellate court renders its decision, the change in law must be followed. Conviction vacated.
State v. Barber, No. WD742879 (Mo. App. E.D. 11/13/12):

Where (1) a recording machine malfunction caused most of Defendant’s testimony at trial to not have been recorded; (2) the State refused to stipulate to Defendant’s testimony on appeal; and (3) the testimony was crucial to Defendant’s points raised on appeal, Defendant was prejudiced by the lack of a transcript and entitled to a new trial.

Discussion: Rule 30.04(h) allows parties to correct an omission from a transcript by stipulation. Although Defendant submitted an affidavit as to what his testimony was, the State refused to stipulate to its accuracy. The State argues that Defendant was not prejudiced by the missing testimony since the jury found him guilty and, thus, the missing evidence must not have been helpful to his defense. “Were we to accept this argument, however, it would render transcripts of trials meaningless.” The missing portion of the transcript is necessary for meaningful appellate reviews of Defendant’s points on appeal, including sufficiency of evidence. Even though the prosecutor did not cause the recording machine to malfunction, it is the State that seeks to take Defendant’s liberty from him. Due process requires that the State ensure that Defendant has access to a transcript of his testimony or at least a stipulation as to the specific contents of his testimony. Here, Defendant has neither, through no fault of his own.
State v. Harris, No. ED96045 (Mo. App. E.D. 12/20/11):

(1) Where defense counsel’s offer of proof was cut short by the trial judge and the parties all understood the issues, the appellate court would consider it sufficient; and (2) to admit a text message, the proponent must offer some proof (even circumstantial) that the message was sent by the purported author of the message.

Facts: Defendant at trial sought to admit text messages which Victim allegedly sent to another Witness. The trial court would not allow this. The defense attempted to make an offer of proof on this matter, but was cut short by the trial judge. After conviction, Defendant appealed.

Holding: (1) The State claims this issue is not preserved because there was no offer of proof. However, Defendant tried to make an offer of proof but was cut off by the judge. The parties discussed this issue for 10 pages of transcript, which shows that everyone understood the issue. Given all this, the appellate court will not fault Defendant for not making an offer of proof. (2) On the merits, the proponent of text messages must present some proof (even circumstantial) that the texts were sent by the purported author of the text. This could be in the form of an admission by the author that he wrote them, or an admission by the author that the number from which the texts were sent was his number and he had control of his phone. Such proof could also be made by the person who received them testifying that he regularly receives texts from this author, or something distinctive about the texts, such as a personal signature. Here, however, Defendant did not question the Victim (who allegedly sent the texts) whether she did send them to the Witness. There was no foundation to admit the texts, so court did not err in excluding them.
Williams v. State, No. ED95386 (Mo. App. E.D. 11/15/11):

Where there was no evidence that a gun Defendant-Movant used in an unlawful use of weapon case was readily capable of lethal use, Movant was entitled to an evidentiary hearing on claim that appellate counsel was ineffective in failing to raise sufficiency of evidence on direct appeal.

Facts: Defendant pointed a gun at various persons. He was convicted at a trial of unlawful use of a weapon, and other offenses. After losing his direct appeal, he filed a 29.15 motion alleging that appellate counsel was ineffective in failing to appeal the issue of sufficiency of evidence to support the unlawful use of weapon conviction. The motion court denied the claim without a hearing.

Holding: To show ineffective appellate counsel, Movant must show that counsel failed to raise a claim that was so obvious that a competent attorney would have recognized it and asserted it, and that there is a reasonable probability the outcome of the appeal would have been different. Unlawful use of a weapon requires display of a weapon “readily capable of lethal use.” Sec. 571.030.1(4). Here, Movant contends that the State presented no evidence that the gun was readily capable of lethal use. The State had the burden of proof and was required to produce evidence that the gun used was capable of lethal use. The State’s assertion that a gun is generally capable of lethal use is not unreasonable, but a verdict cannot rest upon stacked inferences when there are not supporting facts in the first inference. Denial of postconviction relief reversed, and case remanded for evidentiary hearing on whether appellate counsel was ineffective.
State v. Moore, No. ED95643 (Mo. App. E.D. 11/8/11):