Barton v. State, SC 95139

• Decision Date: 03 May 2016
• Docket Number: No. SC 95139,SC 95139
• Citation: 486 S.W.3d 332
• Parties: Walter Barton, Appellant, v. State of Missouri, Respondent.
• Court: Missouri Supreme Court

486 S.W.3d 332

Walter Barton, Appellant,

v.State of Missouri, Respondent.

No. SC 95139

Supreme Court of Missouri, en banc.

Opinion issued May 3, 2016

Rehearing Denied May 24, 2016

Barton was represented by Frederick A. Duchardt Jr., an attorney in Trimble, (816) 213–0782.

The state was represented by Michael J. Spillane and Caroline M. Coulter of the attorney general's office in Jefferson City, (573) 751–3321.

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 (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 the amended motion. Mr. Barton claimed that this inadequacy ultimately led to a finding by this Court on appeal that these two points had been waived because they were not raised in the amended motion. Id. at 756. He also argued that Mr. Brotherton had raised many issues with little to no merit and failed to raise some of the most critical, obvious issues. In support, Mr. Barton filed the affidavit of Ms. Bartholow, who was Mr. Brotherton's co-counsel at the time of Mr. Barton's post-conviction proceedings. Ms. Bartholow indicated that, before receiving the case, Mr. Brotherton received a diagnosis of bipolar disorder and had been placed on medication for that condition.

In response, the State argued that far from abandoning Mr. Barton, Mr. Brotherton filed a lengthy amended post-conviction motion that alleged 48 claims and was timely filed. Any deficiencies in the filing, therefore, did not constitute abandonment. If there were deficiencies, they instead constituted possible claims of ineffective assistance of post-conviction counsel and, the State said, claims of ineffectiveness of post-conviction counsel are categorically unreviewable under Missouri law. The motion court overruled Mr. Barton's motion. Mr. Barton now appeals, arguing the motion court clearly erred in finding that his post-conviction counsel did not abandon him. Because Mr. Barton was sentenced to death, this Court has exclusive appellate jurisdiction under article V, section 10 of the Missouri Constitution

. See also Standing Order, June 16, 1988 (effective July 1, 1988) (clarifying that post-conviction motions involving cases in which the defendant has been sentenced to death fall within this Court's exclusive jurisdiction under the Missouri Constitution).

II. STANDARD OF REVIEW

Review of an order overruling a motion alleging abandonment of counsel during post-conviction proceedings is limited to a determination of whether the motion court's findings and conclusions are clearly erroneous. Rule 29.15(k). See Eastburn v. State, 400 S.W.3d 770, 773 (Mo. banc 2013)

, citing

Gehrke v. State, 280 S.W.3d 54, 56 (Mo. banc 2009). “Findings and conclusions are clearly erroneous if, after reviewing the entire record, this Court is left with the definite and firm impression that a mistake has been made.” Eastburn, 400 S.W.3d at 773.

III. MR. BARTON'S POST–CONVICTION COUNSEL DID NOT ABANDON HIM

A criminal defendant has a Sixth Amendment right to the appointment of competent counsel when, as here, his or her liberty is at stake. State ex rel. Missouri Public Defender Comm'n v. Waters, 370 S.W.3d 592, 597 (Mo. banc 2012)

; see also

Gideon v. Wainwright, 372 U.S. 335, 339–40, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). But neither this Court nor the federal courts have held that this Sixth Amendment right extends to the post-conviction process. See

Martinez v. Ryan, ––– U.S. ––––, 132 S.Ct. 1309, 1315, 182 L.Ed.2d 272 (2012) ( holding that “[t]his is not the case, however, to resolve whether [counsel in post-conviction proceedings] exists as a constitutional matter”). Accordingly, while Missouri does recognize the right to appointed counsel in post-conviction cases when the defendant is indigent, that right is not constitutional but statutory and rule-based. See, e.g., § 600.086 (counsel shall be appointed where defendant “does not have the means at his [or her] disposal or available to him [or her] to obtain counsel in his [or her] behalf and is indigent”); § 600.042 (requiring appointment of counsel in certain cases).

Rules 29.15, 29.16 and 24.035 govern the post-conviction process in Missouri courts. Those rules require the appointment of counsel when a defendant is indigent, but neither they nor any Missouri statute provides a defendant with a right to file a new or amended motion if his or her appointed or retained post-conviction counsel was ineffective. For this reason, this Court repeatedly has held, “The lack of any constitutional right to counsel in post-conviction proceedings ... precludes claims based on the diligence or competence of post-conviction counsel ... and such claims are ‘categorically unreviewable.’ ” Price v. State, 422 S.W.3d 292, 297 (Mo. banc 2014)

, citing,

Eastburn, 400 S.W.3d at 774;³

Compare

Martinez, 132 S.Ct. at 1320 (federal courts are not barred from considering claims of ineffectiveness of post-conviction counsel when, as is the case with Missouri, a state does not recognize claims of ineffectiveness of post-conviction counsel).

Rule 29.15(e) does require certain actions be undertaken by counsel, however. Counsel must:

[A]scertain whether sufficient facts supporting the claims are asserted in the [pro se ] motion and whether the movant has included all claims known to the movant as a basis for attacking the judgment and sentence. If the motion does not assert sufficient facts or include all claims ... counsel shall file an amended motion that sufficiently alleges the additional facts and claims. If counsel determines that no amended motion shall be filed, counsel shall file a statement setting out facts demonstrating what actions were taken....

Rule 29.15(e). In Luleff

and Sanders, this Court recognized that the failure to file...