Bittick v. State

• Decision Date: 01 April 2003
• Docket Number: No. WD 60885.,WD 60885.
• Parties: Larry D. BITTICK, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

105 S.W.3d 498

Larry D. BITTICK, Appellant, v. STATE of Missouri, Respondent.

No. WD 60885.

Missouri Court of Appeals, Western District.

April 1, 2003.

Motion for Rehearing and/or Transfer to Supreme Court Denied May 27, 2003.

Kent E. Gipson, Assistant State Public Defender, Kansas City, MO, for appellant.

Jeremiah W. (Jay) Nixon, Atty. Gen., Adriane Dixon Crouse, Asst. Atty. Gen., Jefferson City, MO, for respondent.

Before THOMAS H. NEWTON, P.J., ROBERT G. ULRICH and EDWIN H. SMITH, JJ.

ROBERT ULRICH, Judge.

Larry D. Bittick ("Mr. Bittick") appeals the judgment of the motion court denying his pro se motion to disqualify appellate defender as his appointed counsel, to proceed pro se, and striking his amended Rule 29.15 motion. Mr. Bittick raises two points on appeal. He claims his appointed counsel had an inherent conflict of interest because he asserts that his appellate and postconviction motion counsel were affiliated with the same office, and he claimed in his motion that the requisite standard of representation pre- and postconviction motion was breached. Mr. Bittick claims as his second point that he has the right to reject appointed counsel and proceed pro se. The judgment of the motion court denying Mr. Bittick's motion to disqualify appointed counsel and strike his amended Rule 29.15 motion is reversed and the case is remanded with directions to the motion court to allow Mr. Bittick to proceed pro se at his postconviction relief hearing.

Factual and Procedural History

Mr. Bittick was charged with information in the Circuit Court of Platte County with one count of Class B felony of assault of a law enforcement officer in the second degree, section 565.082, RSMo 1994, and three counts of assault in the second degree, section 565.060, RSMo 1994. A jury found Mr. Bittick guilty of all charges. He was sentenced to fifteen years of imprisonment on Count I and five years imprisonment and a fine on Counts II through IV, to be served consecutively. Mr. Bittick appealed his conviction. This court affirmed his convictions and sentences on September 1, 2000. State v. Bittick, 39 S.W.3d 927 (Mo.App. W.D.2000). Mr. Bittick filed a timely pro se Rule 29.15 motion to vacate, set aside or correct the judgment or sentence on November 6, 2000. The motion court appointed counsel from the Western Appellate Defender Office to represent Mr. Bittick in his postconviction relief action on November 7, 2000. Tara Jensen ("Ms.Jensen"), Assistant Appellate Defender, entered her appearance in the case on November 30, 2000. At the same time, Ms. Jensen requested a 30-day extension of time to file an amended 29.15 motion. This request was granted on December 1, 2000.

Mr. Bittick filed a pro se letter with the motion court expressing his dissatisfaction with the court's order to appoint a Western District Appellate Defender to his case because he believed that Ms. Jensen had a conflict of interest. The same public defender's office represented him on direct appeal. In the letter, Mr. Bittick requested that the motion court appoint him new counsel. On February 5, 2001, Ms. Jensen filed an amended motion for postconviction relief. Mr. Bittick filed a complaint with the Office of the Chief Disciplinary Counsel claiming that Ms. Jensen had a conflict of interest. Mr. Bittick filed a pro se Motion to Disqualify Appellate Defender and Strike Amended Rule 29.15 Motion on April 17, 2001. In his motion, Mr. Bittick claimed that Ms. Jensen had a conflict of interest and asked that she be disqualified from representing him. He also requested the motion court to allow him to proceed pro se at the 29.15 hearing. Mr. Bittick's final request was that the motion court strike the amended 29.15 motion that Ms. Jensen filed on February 5, 2001.

The 29.15 motion was set for hearing on November 7, 2001. At the hearing, Mr. Bittick filed another pro se amended Rule 29.15 motion. The motion court denied Mr. Bittick's motion to disqualify the public defender and strike his amended Rule 29.15 motion. A hearing was conducted thereafter. On November 29, 2001, the motion court issued a judgment denying Mr. Bittick postconviction relief on all claims. This appeal followed.

Mr. Bittick raises two points on appeal. In his first point, Mr. Bittick contends that the motion court erred in denying his pro se motion to disqualify his postconviction motion counsel and strike his amended Rule 29.15 motion because postconviction motion counsel had a conflict of interest in that: (a) she and Mr. Bittick's direct appeal counsel were from the same public defender's office and that relationship adversely affected her performance of advancing ineffective assistance of direct appeal counsel claims; and (b) Mr. Bittick's pro se motion criticized the appellate defender's office as being ineffective because of its heavy case load. He claims that his postconviction relief motion counsel's conflict deprived him of his Sixth and Fourteenth Amendment rights to litigate his postconviction motion with counsel unencumbered by a conflict of interest. Mr. Bittick's second point, which is dispositive in this case, claims that the motion court erred in denying his pro se motion to disqualify his appointed postconviction relief motion counsel and not striking the amended Rule 29.15 motion that she filed on his behalf because as a civil litigant, he had a right under state law, the United States Constitution and common law to proceed pro se if he voluntarily and intelligently chose to do so. He asserts that the motion court's failure to allow him to proceed pro se denied him the right to control the course of the litigation and meaningful access to the courts as guaranteed by the Fourteenth Amendment.

Right to Self-Representation in a Rule 29.15 Hearing

As Mr. Bittick's second point is dispositive, it is the only point that will be addressed on appeal. In his second point, Mr. Bittick argues that a postconviction relief applicant has the right to dispense with court-appointed counsel and proceed pro se at a postconviction relief hearing if he voluntarily and intelligently chooses to do so. Mr. Bittick claims that the Sixth and Fourteenth Amendments to the United States Constitution guarantee his right to self-representation. He also contends his due process right to meaningful access to the courts was violated when the motion court denied his motion to disqualify postconviction relief counsel and proceed pro se. The State counters that Mr. Bittick is not entitled to represent himself at a postconviction proceeding because a criminal defendant's right to self-representation solely applies to criminal cases. Additionally, the State contends that a postconviction relief applicant does not have a right to proceed pro se because Rule 29.15 does not contain such a provision.

This is an issue of first impression in the State of Missouri. The question presented is whether an indigent incarcerated postconviction relief applicant has the right to dispense with court-appointed counsel and proceed pro se if the applicant voluntarily and knowingly chooses to do so. The United States Supreme Court has held that a defendant has a Sixth Amendment right to self-representation when the defendant knowingly and intelligently acts to proceed pro se in a criminal proceeding. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The Supreme Court has not determined whether an incarcerated postconviction motion civil litigant has the same right to self-representation.¹

A postconviction relief hearing is a civil proceeding governed by the rules of civil procedure whenever applicable. State v. Basile, 942 S.W.2d 342, 362 (Mo. banc 1997) (citation omitted); Rule 29.15(a). There is no constitutional right to counsel in a post-conviction proceeding. Krider v. State, 44 S.W.3d 850, 859 (Mo.App. W.D. 2001) (citing State v. Hunter, 840 S.W.2d 850, 871 (Mo. banc 1992)) (citing Coleman v. Thompson, 501 U.S. 722, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). "It is within the `substantial discretion' of the states to determine post-conviction procedures." Smith v. State, 887 S.W.2d 601, 602 (Mo. banc 1994) (citing Pennsylvania v. Finley, 481 U.S. 551, 559, 107 S.Ct. 1990, 1995, 95 L.Ed.2d 539 (1987)). In Missouri, Rule 29.15 governs postconviction relief motions filed after a trial. Under Rule 29.15(e), "[w]hen an indigent movant files a pro se motion, the court shall cause counsel to be appointed for the movant." Although postconviction relief counsel is not constitutionally required, counsel is automatically appointed to indigent defendants that file a Rule 29.15 motion. In order to trigger Rule 29.15(e), an indigent defendant must file an affidavit of indigency with the Rule 29.15 motion. Chalk v. State, 990 S.W.2d 87, 88 (Mo.App. E.D. 1999) (holding that it was not error for the motion court to fail to appoint counsel to Rule 29.15 applicant when applicant failed to file an affidavit of indigency).

Mr. Bittick claims that his right to proceed pro se at the postconviction hearing is guaranteed by state law and the Sixth Amendment. He cites, however, no state law to support such a proposition. No state law guaranteeing a defendant's right to proceed pro se at a postconviction hearing exists. Likewise, the Sixth Amendment does not guarantee such a right. By its wording, the Sixth Amendment applies to criminal actions only. State ex rel O'Brien v. Ely, 718 S.W.2d 177, 182 (Mo.App. W.D.1986) (noting that the Sixth Amendment right to counsel does not apply to civil cases). A postconviction relief hearing is, however, civil in nature. The Sixth Amendment does not apply to civil actions. Id.

Mr. Bittick also relies on case law to support his contention that a postconviction applicant has a right to reject counsel appointed under 29.15(e) and proceed pro se. He claims that Johns v. State, 741 S.W.2d 771, 778 (Mo.App. E.D.1987) governs the outcome in this case.² In Johns, a defendant convicted...