Case Law Update: 2011-2014 Cumulative Edition

Holding: Where judge failed to appoint counsel for indigent postconviction movant who filled out in forma pauperis affidavit on postconviction motion, writ of mandamus issues to require appointment of counsel as required by Rule 29.15(e).
White v. State, No. SD31300 (Mo. App. S.D. 5/11/12):

Holding: Where counsel filed an amended 24.035 motion, a claim that counsel “abandonned” Movant could not be raised for the first time on appeal because it was not presented to the motion court. However, court notes in a footnote that the Western District has suggested that such a claim might be raised in a motion filed in the motion court to reopen the postconviction proceeding.
State v. Cannafax, No. SD30327 (Mo. App. S.D. 7/22/11):

Where Defendant’s sexual offenses occurred during a time span from early 2006 to 2008, but it was unclear if they occurred after August 28, 2006, and the trial court’s judgment made no findings about this, it is unclear whether the lifetime supervision requirements of Sec. 217.735 apply to Defendant, but the issue is not ripe until the Board of Probation and Parole attempts to apply them to him; at that time, he may bring a writ of mandamus to challenge their applicability.

Facts: Defendant was convicted of sexual offenses alleged to have occurred between June 7, 2006 and November 2008. The trial court did not expressly find that the offenses occurred after August 28, 2006 and did not state in its judgment that Defendant was subject to lifetime supervision under Sec. 217.735, which provides that offenders are subject to lifetime supervision for certain sexual offenses “based on an act committed on or after August 28, 2006.”

Holding: Defendant’s claim on appeal is that he is improperly subject to lifetime supervision under Sec. 217.735 because there was not sufficient evidence to prove his offenses happened after August 28, 2006. However, since the trial court made no findings about this and made no mention of it in its judgment, it is unclear if Defendant will be subjected to lifetime supervision when he completes his prison sentence. Thus, this issue is not ripe for review. However, if the Board of Probation and Parole seeks to apply Sec. 217.735 to him in the future, he may challenge that via a writ of mandamus.
Jack v. State, No. SD30512 (Mo. App. S.D. 8/9/11):

Holding: Denial of Rule 29.07(d) motion to withdraw guilty plea to correct manifest injustice is appealable and is governed by rules of civil procedure, even though it is filed in the criminal case; judgment becomes final 30 days after entry, and notice of appeal is due not later than 10 days thereafter.
Counts v. State, No. SD30658 (Mo. App. S.D. 6/7/11):

Holding: Claim that trial judge violated Sec. 559.115 by failing to hold a hearing within 120 days after Movant’s incarceration where DOC recommended release, but judge ultimately denied it, is not cognizable in 24.035 proceeding, because this is an attack on a ruling on probation. However, judge’s action can be challenged by an appropriate writ.
Roderick v. State, No. SD30588 (Mo. App. S.D. 6/20/11):

Holding: Claim that Movant rejected favorable plea offer and proceeded to trial due to ineffective assistance of counsel is not cognizable in 29.15 case, because this did not affect the fairness of the trial.

Editor’s Note: As of June 2011, the U.S. Supreme is currently considering this issue in Lafler v. Cooper.
Epkins v. State, No. SD30349 (Mo. App. S.D. 2/10/11):

Even though Movant’s 24.035 motion only generally alleged that counsel had “coerced” him into waiving a jury, but the evidentiary hearing evidence was that counsel told him he’d get medical treatment faster if he did this, appellate court will review the claim on the merits; general pleading sufficient.

Holding: We acknowledge Movant’s amended motion more generally refers to trial counsel’s allegedly coercive conduct and does not specifically mention Movant’s medical condition. However, during the evidentiary hearing, claims of coercion based upon counsel’s alleged inducement stemming from Movant’s medical condition was clearly presented. Since Movant’s argument on appeal was generally encompassed in Movant’s amended motion, and presented to the motion court at the hearing, we choose to review the claim on the merits.
State v. Hopkins, 2014 WL 928973 (Mo. App. W.D. March 11, 2014):

Holding: Even though Defendant who pleaded guilty was denied his right of allocution at sentencing, the appellate court has no authority to hear this on direct appeal from a guilty plea, but the issue may be raised in a Rule 24.035 motion; a direct appeal of a guilty plea is limited to issues relating to subject matter jurisdiction and the sufficiency of the charging documents.
Thompson v. State, 2014 WL 4636393 (Mo. App. W.D. Sept. 9, 2014):

Postconviction claim that counsel was ineffective for failing to investigate and file a motion to suppress failed to state claim; rather, Movant must plead that counsel provided incompetent advice whether to plead guilty under all the circumstances of the case.

Facts: Rule 24.035 Movant alleged plea counsel was ineffective for failing to investigate and file a motion to suppress, and that Movant would not have pleaded guilty if counsel had done this. The motion court denied the claim without a hearing.

Holding: A plea of guilty is not subject to collateral attack on the ground that it was motivated by inadmissible evidence unless the Movant was incompetently advised by his attorney. The motion must allege that plea counsel provided incompetent advice regarding whether Movant should plead guilty, i.e., that counsel’s advice under all circumstances of the case was outside the range of competence demanded of counsel in criminal cases. Merely providing no advice regarding suppression is not enough. Denial of motion affirmed.
State v. Hopkins, 2014 WL 928973 (Mo. App. W.D. March 11, 2014):

Holding: Even though Defendant who pleaded guilty was denied his right of allocution at sentencing, the appellate court has no authority to hear this on direct appeal from a guilty plea, but the issue may be raised in a Rule 24.035 motion; a direct appeal of a guilty plea is limited to issues relating to subject matter jurisdiction and the sufficiency of the charging documents.
In re: Ferguson v. Dormire, 413 S.W.3d 40 (Mo. App. W.D. 2013):

(1) Even though a circuit court had denied habeas petition on the merits with written Findings, the remedy for Petitioner is to file a new habeas proceeding in the appellate court, and the appellate court does not review the circuit court’s Findings but reviews the case de novo; (2) in the absence of statutory constraint, a habeas Petitioner is not barred from filing successive habeas corpus petitions asserting grounds previously denied by a circuit court. (However, where a higher court has denied a writ, Rule 91.22 prohibits returning to a lower court unless the higher court’s denial was without prejudice.); and (3) where the State failed to disclose an interview of a State’s witness which would have impeached another State’s witness and allowed the defense to develop further evidence, Petitioner demonstrated cause and prejudice for habeas relief and violation of Brady.

Facts: Petitioner was convicted of murder. After appeal and postconviction remedies were concluded, he filed a habeas petition alleging, in relevant part, that the State failed to reveal an interview of a witness which would have impeached a key identification witness at trial. There was no physical evidence connecting Petitioner to the offense, and the identification evidence was hotly contested at trial. The circuit court denied the petition on the merits. Petitioner filed a new habeas petition in the appellate court.

Holding: (1) The State claims that because Petitioner’s claims were denied by the circuit court after an evidentiary hearing, Petitioner’s recourse is to file for a writ of certiorari. When a circuit court grants a habeas petition, the State’s recourse is to file for a writ of certiorari. However, when a petition is denied, Petitioner’s remedy is to file a new habeas petition in the appellate court. Further, the appellate court does not conduct appellate review of the circuit court’s decision, but reviews de novo. (2) The State argues that the petition should be prohibited as “successive,” but in the absence of any statutory constraint, a habeas Petitioner is not prohibited from filing a successive petition in the appellate court. Rule 91.22 does, however, prohibit returning to circuit court after a habeas writ is denied by a higher court unless the higher court denied the writ without prejudice. (3) Petitioner has established the cause and prejudice gateway for habeas relief because he has shown that the State’s failure to disclose a witness interview which would have impeached a critical identification witness was an objective factor external to the defense, which he did not know about or have reason to know about at the time of his direct appeal and postconviction cases. In determining prejudice, Petitioner need only show a reasonable probability of a different result or undermined confidence in the outcome, not that discounting the inculpatory evidence in light of the nondisclosed evidence, there would not have been enough evidence left to convict. Even though the State did not reduce the witness interview to writing and the prosecutor did not know about it, the failure to disclose still violated Brady, because Brady obligations cover police and prosecutor investigators. Even though the State claims Petitioner could have learned about the Brady violation sooner, a rule that “prosecutor may hide, defendant must seek,” does not comport with due process. The undisclosed evidence would have impeached a critical identification witness at trial, and allowed the defense to develop other evidence. Even though the State endorsed the undisclosed witness, endorsement cannot be a valid substitute for Brady disclosure because it is not enough to avoid active suppression of favorable evidence; Brady requires disclosure.
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.
Wallar v. State, 403 S.W.3d 698 (Mo. App. W.D. 2013):

(1) The “form discovery response” of the Jackson County Prosecutor’s Office is deceptive because it implies that the Office has checked the criminal histories of witnesses when the Office has not, in fact, done so; thus, the response violates Rule 25.03; (2) in a Rule 24.035 motion following a guilty plea, a mere violation of a discovery rule is not cognizable, but the issue can be cognizable if it has “constitutional significance” under Brady; to plead the claim, Movant must plead that had the Brady evidence been disclosed, he would not have pleaded guilty but would have insisted on going to trial; but (3) the failure to disclose mere impeachment evidence is insufficient, because the government is not constitutionally required to disclose impeachment evidence prior to entering a plea agreement with a defendant.

Facts: Following a guilty plea, Movant filed a 24.035 motion alleging that the Jackson County Prosecutor’s Office had failed to disclose evidence to him in violation of Rule 25.03. The Western District ultimately affirms the denial of postconviction relief, but makes some notable comments about discovery law and postconviction relief.

Holding: (1) The Western District finds that the “form discovery response” of the Jackson County Prosecutor’s Office is misleading because it implies that the Office has already run criminal histories on State’s witnesses when it has not done so. Although this was not prejudicial in this case because the defense attorney testified that he knew the Office did this and knew he would not get discovery of this until closer to trial, the Office’s “standard response” is deceptive and does not comply with Rule 25.03. The Jackson County Prosecutor’s Office should alter this language in its standard response to clearly reflect either that the criminal histories have not been run, or that they have been run and revealed no prior convictions. (2) As for Movant’s claim that he should receive postconviction relief due to violation of Rule 25.03, mere violation of a court rule is not cognizable under Rule 24.035 because court rules do not constitute the “laws of this state.” For the claim to be cognizable, it must have and be pleaded as having “constitutional significance,” i.e., it must violate the U.S. or Missouri Constitutions. Failure to disclose evidence could have constitutional significance if it can meet the test for Brady violations. To plead and prove such a claim, a movant must plead and prove that had the evidence at issue been disclosed, he would not have pleaded guilty, but would have insisted on going to trial. This Court recently held that when a defendant has pleaded guilty, “he may not thereafter raise independent claims relating to the deprivation of constitutional rights … but may instead attack [only] the voluntary and intelligent character of the guilty plea by showing ineffectiveness of counsel.” The State argues that this holds that movants cannot raise Brady claims or constitutional claims other than ineffective counsel. This reading is too narrow. Rule 24.035 contemplates raising constitutional claims. To be cognizable, the claim would have to be one the defense was unaware of prior to the plea, that could not have been raised prior to the plea, and that rendered the plea involuntary. While such claims are rare, an example would be a Brady claim, but “[s]uch a claim is more likely to be successful if the defendant entered an Alford plea.” Also, the violation of other court rules can have “constitutional significance.” For example, if there is not a factual basis under Rule 24.02(e), this violates due process, and Rule 24.035 allows relief as a violation of due process. (3) The U.S. Supreme Court has held, however, that the Constitution does not require the government to disclose impeachment evidence prior to entering a plea agreement with a defendant. The undisclosed evidence here is merely impeachment evidence, and therefore, does not affect the voluntary nature of the plea.
Rennick v. State, 2013 WL 791541 (Mo. App. W.D. March 5, 2013):

Holding: Even though Movant wrote “do not know” on his Form 40 where it asked the date of the mandate on direct appeal, where Movant’s Form 40 was file-stamped by the Circuit Clerk within 90 days of the mandate, the motion court clearly erred in dismissing the Form 40 as untimely because Movant met his burden of timeliness by, in fact, having his motion file-stamped within the time required by Rule 29.15(b); to dismiss Movant’s Form 40 as untimely for failing to plead the date of the mandate does nothing to serve the purpose of Rule 29.15 which is to avoid delay in processing claims.
State ex rel. Koster v. Green, No. WD75820 (Mo. App. W.D. 12/26/12):

Even though Petitioner confessed to crime, it was not an abuse of discretion to grant habeas relief where police had committed numerous “Brady” violations by failing to disclose serological test results, fingerprints, a drawing of the crime scene, and that a key prosecution witness had been hypnotized – all of which would have aided the defense and which undermine confidence in the outcome.

Facts: Defendant/Petitioner was convicted of a murder in 1983. In 2011, he sought habeas relief on grounds that the police had committed various “Brady” violations. The trial court granted relief. The State sought a writ of certiorari and claimed that there was no prejudice to Petitioner since he had confessed to the crime.

Holding: The undisclosed evidence in this case would have cast doubt on Petitioner’s confession because such evidence was inconsistent with it. The defense was that Petitioner, who was mentally ill, had falsely confessed. To demonstrate prejudice, a Petitioner does not have to show that the suppressed evidence would have resulted in an acquittal or that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict. Thus, it doesn’t matter that even if the favorable evidence had been disclosed, there would still have been enough to convict based on Petitioner’s confession. All that is required is a showing that the favorable evidence could reasonably be taken to have put the whole case into a different light so as to undermine confidence in the verdict. Here, all of the undisclosed evidence would have allowed defense counsel to greatly undercut the credibility of the police investigation, which was a critical issue in the jury’s assessment of Petitioner’s confession. Had the undisclosed evidence come to light, the defense easily could have shown evidence that was inconsistent with Petitioner’s confession. It was not an abuse of discretion to grant habeas relief.
Miller v. State, No. WD74785 (Mo. App. W.D. 11/27/12):

Where (1) Movant’s pro se 29.15 motion was untimely filed but Movant filed with the motion a letter claiming that the late filing was due to an error in the prison mailroom, and (2) the motion court failed to make any finding about the timeliness of the pro se motion, case is remanded to determine if the “mailroom error” exception to the timeliness requirement of 29.15 applies.

Facts: Movant filed his pro se 29.15 motion late. However, Movant sent a letter to the clerk when he filed his pro se motion, claiming that the late filing was due to an error in the prison mailroom over postage and mailing. An amended motion was filed, but made no mention of the timeliness issue. The motion court denied relief on the merits and made no mention of the timeliness issue. On appeal, Movant filed a motion to remand for a hearing to resolve the timeliness of the pro se motion.

Holding: The timeliness of the pro se motion cannot be waived by the State or appellate court. What is critical here is the letter which Movant wrote to the clerk accompanying his pro se motion and explaining the late filing. If there was nothing in the record about this, the case would have to be dismissed. But here Movant has alleged a possible exception to the time limits of the postconviction rules, i.e., an error by the prison mailroom under Howard v. State, 289 S.W.3d 651 (Mo. App. E.D. 2009). If this is proven by a preponderance of evidence, the pro se motion should be deemed timely filed. Case remanded to determine timeliness.
Taylor v. State, No. WD74275 (Mo. App. W.D. 8/28/12):

Holding: Claim that judge punished Movant for appealing the conditions of his probation to an appellate court by revoking his probation and sentencing him to the maximum sentence was cognizable in a 24.035 motion.

Facts: Movant pleaded guilty to first degree endangering the welfare of a child. The court imposed various sex offender conditions as part of his probation. Movant appealed some the sex offender conditions to the appellate courts. Later, the judge revoked Movant’s probation and said he had “manipulated the probation system and manipulated this Court.” Movant filed a 24.035 motion alleging that the judge had revoked his probation and imposed the maximum sentence “only because he had exercised his constitutional right to challenge a condition of probation” on appeal.

Holding: Revocation of probation determinations generally are not subject to a challenge in a 24.035 action, but that is not the claim here. Here, Movant is contesting the legality of the sentence imposed upon revocation of probation by contending the judge punished him for exercising his right to appeal the conditions of his probation. It is unconstitutional to use enhanced sentencing to punish or penalize a defendant for exercising his constitutional rights. Movant’s claim of retaliatory sentencing is cognizable. However, relief is denied because Movant did not demonstrate that retaliation was the determinative factor in the judge’s revocation of probation.
Graves v. State, No. WD74282 (Mo. App. W.D. 6/29/12):

Even though the motion court judge and prosecutor conceded that Movant’s Form 40 should be deemed timely filed due to the clerk’s failure to properly file-stamp the motion, where the file-stamp was “late,” the appellate court does not have authority to hear the appeal and the case must be remanded for a hearing on the timeliness of the motion.

Facts: Defendant filed a Form 40 which appeared to be file-stamped “late.” Counsel filed an amended motion which alleged that his Form 40 was actually timely due to the court being without an assistant clerk for some period of time, and the motion not being filed stamped until much later after it was received. Movant sought to present evidence about this at the evidentiary hearing, but the judge stated that there was “no way” to determine when the motion was received, and the judge was going to “pull that out of the case” and decide the case on the merits. The prosecutor agreed with this. After the court denied relief on the merits, Movant appealed.

Holding: The appellate court has a duty to enforce the time limits of Rule 29.15. The appellate court cannot accept the judge’s and prosecutor’s agreement that the motion was timely filed. The Movant must prove this by a preponderance of the evidence. Here, the file-stamp reflects that the motion was untimely. Movant has alleged facts in his amended motion, however, which if true, would show that his motion was, in fact, timely filed. Thus, the case should be remanded to allow Movant to present those facts. It may be that it cannot be determined when the motion was received by the court. However, the motion court is free to determine timeliness based solely on testimony by Movant of when he mailed his motion, if the court finds this credible.
State v. Reynolds, No. WD73306 (Mo. App. W.D. 3/6/12):

Holding: Claims of ineffective assistance of counsel in misdemeanor cases should be raised in habeas corpus, not direct appeal.
Ewing v. Denney, No. WD74807 (Mo. App. W.D. 3/6/12):

Where trial counsel undertook to file a notice of appeal for Defendant but failed to properly do so and Defendant did not learn of this until after time for late notice of appeal expired, trial counsel was ineffective and habeas relief is granted to allow Defendant to be resentenced so can file a new notice of appeal.

Facts: In 2007, Defendant (Petitioner) was convicted at trial. His trial counsel filed a notice of appeal for him, but failed to timely pay a filing fee. That appeal was dismissed in 2007, but counsel never told Defendant. In 2008, Defendant wrote other attorneys and legal authorities to try to find out what was happening regarding his appeal. The Supreme Court told him to contact the Public Defender. In 2010, Defendant brought a habeas case in DeKalb County seeking to have Defendant re-sentenced so he could appeal. The DeKalb County Circuit Court granted relief and ordered the Jackson County Circuit Court to resentence Defendant, but the Jackson County Circuit Court refused to do so on grounds that the DeKalb court had no authority to order the Jackson court to do so. In 2011, Defendant re-filed his habeas case in the Western District Court of Appeals.