Atchison v. State, SD 31999.

Decision Date13 May 2013
Docket NumberNo. SD 31999.,SD 31999.
Citation420 S.W.3d 559
PartiesChristopher Dewayne ATCHISON, Movant–Appellant, v. STATE of Missouri, Respondent–Respondent.
CourtMissouri Court of Appeals

OPINION TEXT STARTS HERE

Matthew W. Huckeby, St. Louis, MO, for Appellant.

Shaun J. MacKelprang, Jefferson City, MO, for Respondent.

MARY W. SHEFFIELD, J.

Christopher Dewayne Atchison (Movant) appeals the motion court's denial of his Rule 29.151 motion for post-conviction relief. In his sole point on appeal, he complains the motion court clearly erred in failing to enter findings of fact and conclusions of law on one of his ineffective assistance of counsel claims. Because Movant failed to preserve his claim for appellate review, we affirm the motion court's judgment.

Factual and Procedural Background

On March 7, 2009, Barry Morgan (“Officer Morgan”) of the Charleston Department of Public Safety arrested Movant on an outstanding warrant while Movant was sitting inside Movant's car. During a subsequent search of Movant's car, Officer Morgan discovered a revolver and a green leafy substance that he suspected was marijuana and that was subsequently determined to be marijuana.

Movant was charged as a prior and persistent offender with unlawful possession of a concealable firearm and with possession of marijuana. Movant's trial counsel filed a motion to suppress the evidence in the case, and the trial court denied the motion. A jury convicted Movant of the charged offenses, and the judge sentenced Movant to concurrent terms of ten years incarceration for possession of a concealable firearm and thirty days incarceration for possession of marijuana. Movant's convictions were affirmed on appeal in an unpublished decision. State v. Atchison, No. SD30356 (Mo.App. S.D.2010).

Movant subsequently file a pro se motion for post-conviction relief. The motion court appointed counsel, and counsel filed an amended motion. The amended motion incorporated the claims raised in Movant's pro se motion. Several of the incorporated claims challenged the actions of Ellen Flottman (“appellate counsel), the attorney who represented Movant on his direct appeal. One of those claims alleged appellate counsel had been ineffective for failing to include a point on appeal challenging the denial of the motion to suppress.

The motion court denied the motion after an evidentiary hearing and entered findings of fact and conclusions of law. In its findings and conclusions, the motion court addressed each of the claims from the text of the amended motion but did not discuss Movant's incorporated pro se claims. Movant did not file a Rule 78.07(c) motion to amend the judgment, and this appeal followed.

Discussion

In his sole point on appeal, Movant argues the motion court clearly erred in denying his ineffective assistance of appellate counsel claim because the trial court failed to issue findings of fact and conclusions of law. This point must be denied because the point was not preserved for appellate review.

Movant's claim was not preserved for appellate review because he did not file a Rule 78.07(c) motion to amend the judgment. Missouri's post-conviction rules require the motion court to enter findings of fact and conclusions of law on all issues presented whether or not a hearing is held. Rule 29.15(j). Because of this, the failure to enter findings of fact and conclusions of law generally requires reversal and remand. E.g., Hollingshead v. State, 324 S.W.3d 779, 781 (Mo.App. W.D.2010).

However, post-conviction cases are also governed by the rules of civil procedure insofar as applicable. Rule 29.15(a). Under the rules of civil procedure, a claim regarding the form or language of the judgment “must be raised in a motion to amend the judgment in order to be preserved for appellate review.” Rule 78.07(c); Johnson v. State, 388 S.W.3d 159, 168 (Mo. banc 2012) (applying Rule 78.07(c) in a Rule 29.15 action); Gerlt v. State, 339 S.W.3d 578, 584 (Mo.App. W.D.2011)(applying Rule 78.07(c) in a Rule 24.035 action). If the party challenging the failure to make statutorily required findings does not file a motion to amend the judgment, the issue is not preserved for appellate review. Gerlt, 339 S.W.3d at 585.

“To determine whether a particular rule of civil procedure applies in the context of post-conviction review, the essential inquiry is whether the rule in question enhances, conflicts with, or is of neutral consequence to the purposes of the post-conviction rule.” Thomas v. State, 180 S.W.3d 50, 53 (Mo.App. S.D.2005) (quoting Lung v. State, 179 S.W.3d 337, 339–40 (Mo.App. S.D.2005)). “If a civil rule hinders the purposes of the post-conviction rules, it does not apply.” Gerlt, 339 S.W.3d at 584. “If the rule enhances those purposes, or is of neutral consequence, it applies.” Id. Rule 78.07(c) is applicable in the post-conviction context because it prevents delay by bringing errors to the attention of the motion court at a time when those errors can be easily corrected. Gerlt, 339 S.W.3d at 584–85;Johnson, 388...

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5 cases
  • Mercer v. State
    • United States
    • Missouri Supreme Court
    • March 14, 2017
    ...movant does not challenge the lack of findings, the appropriate course of action is to dismiss that allegation. Atchison v. State , 420 S.W.3d 559, 562 (Mo. App. S.D. 2013).In this case, Mercer clearly raised this issue to the circuit court. Mercer sent a pro se letter to the circuit court,......
  • Green v. State
    • United States
    • Missouri Supreme Court
    • August 9, 2016
    ...that were not encompassed in counsel's five claims in the amended motion for post-conviction relief. Rule 29.15(j); Atchison v. State , 420 S.W.3d 559, 561 (Mo.App.2013). The State argues, however, that the motion court's failure to issue findings of fact and conclusions of law on claims 8.......
  • Mercer v. State
    • United States
    • Missouri Court of Appeals
    • December 29, 2015
    ...essential inquiry is whether Rule 74.01(a) conflicts with, enhances or is neutral to the purposes of § 547.035. See Atchison v. State, 420 S.W.3d 559, 561 (Mo. App. 2013); In re C.A.D., 995 S.W.2d 21, 27 (Mo. App. 1999). If the rule enhances those purposes or is of neutral consequence, it a......
  • City of Kan. City v. Chastain
    • United States
    • Missouri Supreme Court
    • February 4, 2014
    ... ... State, 104 S.W.3d 409, 411 (Mo. banc 2003). “The judgment will be affirmed unless there is no ... ...
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