486 S.W.3d 332 (Mo. 2016), SC95139, Barton v. State

Docket Nº:SC95139
Citation:486 S.W.3d 332
Opinion Judge:LAURA DENVIR STITH, JUDGE.
Party Name:WALTER BARTON, Appellant, v. STATE OF MISSOURI, Respondent
Attorney:Barton was represented by Frederick A. Duchardt Jr., an attorney in Trimble. The state was represented by Michael J. Spillane and Caroline M. Coulter of the attorney general's office in Jefferson City.
Case Date:May 03, 2016
Court:Supreme Court of Missouri
 
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Page 332

486 S.W.3d 332 (Mo. 2016)

WALTER BARTON, Appellant,

v.

STATE OF MISSOURI, Respondent

No. SC95139

Supreme Court of Missouri, En Banc

May 3, 2016

Page 333

Editorial Note:

Not Final until expiration of the rehearing period. See MO R RCP Rule 84.16 regarding unpublished opinions.

APPEAL FROM THE CASS COUNTY CIRCUIT COURT. The Honorable R. Michael Wagner, Judge.

Barton was represented by Frederick A. Duchardt Jr., an attorney in Trimble.

The state was represented by Michael J. Spillane and Caroline M. Coulter of the attorney general's office in Jefferson City.

OPINION

Page 334

LAURA DENVIR STITH, JUDGE.

Walter Barton appeals the trial court's judgment overruling his motion requesting the court to find that he was abandoned by his post-conviction counsel and denying him permission to supplement his post-conviction motion. This Court affirms. Since first recognized by this Court in Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991), and Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991), the claim of abandonment by post-conviction counsel has been limited to two circumstances -- when post-conviction counsel: (1) takes no action with respect to filing an amended motion or (2) is aware of the need to file an amended motion but fails to do so in a timely manner. Because Mr. Barton's post-conviction counsel took action and filed an amended motion asserting six broad grounds for relief within which he asserted 48 claims of error, the trial court did not clearly err in overruling Mr. Barton's abandonment claim. Mr. Barton's assertions that his counsel should have brought up additional claims but failed to do so due to the mental illness of one of his two appointed counsel are claims of ineffectiveness of post-conviction counsel, not abandonment and, as such, are unreviewable in Missouri courts.

I. STATEMENT OF FACTS AND PROCEDURAL HISTORY

On the evening of October 9, 1991, Gladys Kuehler, the manager of an Ozark, Missouri, trailer park, was found lying in a pool of blood on the floor of her trailer. The cause of death was exsanguination as a result of more than 50 stab wounds, an ear-to-ear slitting of her throat that cut the jugular vein, and two X-shaped slash marks on her abdomen deep enough to cause evisceration. Ms. Kuehler's body was found by her granddaughter, a neighbor, and Mr. Barton. Mr. Barton frequented the mobile home park where Ms. Kuehler kept her trailer and almost immediately became a suspect in part because he admitted being in Ms. Kuehler's trailer between 2 and 2:30 p.m. the day of the murder. Mr. Barton later changed his story, saying that he had answered Ms. Kuehler's telephone in her trailer at 3:15 p.m. the day of the murder. Police also found blood on Mr. Barton's shirt that matched that of Ms. Kuehler. Police arrested Mr. Barton and charged him with Ms. Kuehler's murder.

Mr. Barton's first and second trials, held in 1991 and 1992, respectively, resulted in mistrials. His third and fourth trials resulted in first-degree murder convictions and death sentences, but both convictions later were set aside or vacated due to trial error or ineffective assistance of trial counsel. Mr. Barton's fifth trial took place in March 2006. The jury again found him guilty of first-degree murder and recommended a sentence of death, which the trial court imposed. On direct appeal, this Court affirmed his conviction and death sentence. State v. Barton, 240 S.W.3d 693, 711

Page 335

(Mo. banc 2007).1

On April 11, 2008, Mr. Barton filed a pro se Rule 29.15 motion for post-conviction relief. The circuit court appointed a public defender to represent him, and the Missouri State Public Defender System specially assigned Gary Brotherton and Amy Bartholow to represent Mr. Barton during his post-conviction proceedings. Mr. Brotherton prepared and filed an amended post-conviction motion asserting six broad grounds for relief,2 within which the motion raised a total of 48 claims of error. In 2012, Mr. Brotherton was permitted to withdraw as Mr. Barton's post-conviction motion counsel. Ms. Bartholow remained as counsel for Mr. Barton, and two other public defenders also entered their appearance as his counsel. Following an evidentiary hearing, the circuit court overruled his post-conviction motion. Mr. Barton appealed. In 2014, this Court affirmed the denial of post-conviction relief. Barton v. State, 432 S.W.3d 741, 764 (Mo. banc 2014).

One year later, Mr. Barton filed a motion requesting the post-conviction court to find he had been abandoned by his post-conviction counsel, Mr. Brotherton, and asking for permission to supplement his amended post-conviction motion with additional claims. In the motion, Mr. Barton alleged that Mr. Brotherton suffered from bipolar disorder and other personal issues at the time he prepared and filed Mr. Barton's amended post-conviction motion and that as a result of this mental illness, Mr. Brotherton did not adequately research and did not artfully draft two claims in...

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