Borschnack v. State

• Decision Date: 29 October 2020
• Docket Number: No. SD 36451,SD 36451
• Parties: Billie J. BORSCHNACK, Movant-Appellant, v. STATE of Missouri, Respondent-Respondent.
• Court: Missouri Court of Appeals

614 S.W.3d 561

Billie J. BORSCHNACK, Movant-Appellant,

v.STATE of Missouri, Respondent-Respondent.

No. SD 36451

Missouri Court of Appeals, Southern District, Division One.

Filed: October 29, 2020

Motion for Rehearing and/or Application for Transfer Denied November 23, 2020

Application for Transfer to Supreme Court Denied January 26, 2021

Appellant's Attorney: Kevin L. Schriener, of Clayton, Missouri.

Respondent's Attorneys: Eric S. Schmitt, Attorney General, and Evan J. Buchheim, Assistant Attorney General, of Jefferson City, Missouri.

WILLIAM W. FRANCIS, JR., J.

Billie J. Borschnack ("Borschnack"), appeals from the motion court's denial of Rule 29.15¹ relief. In one point on appeal, Borschnack argues that the motion court clearly erred in finding that "appointed counsel" did not abandon Borschnack, and that retained counsel's subsequent amended motion was untimely. Finding no merit to this point, we affirm the judgment of the motion court.

Factual and Procedural Background

We recite the facts in accord with the findings of the motion court, including those as to credibility. See Hosier v. State , 593 S.W.3d 75, 81 (Mo. banc 2019). We recite such other material as necessary for context to our instant disposition.

This case involves multiple proceedings relating to the application of Rule 29.15, and a preliminary discussion of that rule is necessary to frame the procedural and substantive import of the more particular facts and litigation history attending this matter. Our Supreme Court set out the following overview of Rule 29.15 in Price v. State , 422 S.W.3d 292 (Mo. banc 2014) :

[T]here is no federal constitutional right to post-conviction proceedings. [ Pennsylvania v. ] Finley , 481 U.S. [551,] 557, 107 S.Ct. 1990, [95 L.Ed.2d 539 (1987)]. Because the state is not compelled to provide such proceedings, it is not required by the federal constitution to provide counsel to indigent inmates when the state—in its discretion—makes such proceedings available. Smith , 887 S.W.2d at 602. Under the predecessor to Rule 29.15, however, this Court decided that appointing counsel for all indigent inmates who assert post-conviction claims was the best way to further the purpose of ensuring thorough review without undue delay in achieving finality of criminal convictions. Fields v. State , 572 S.W.2d 477, 483 (Mo. banc 1978) (‘Finality is a central aspect of rule 27.26. If a meritorious collateral claim exists, the rule is designed to bring it to the fore promptly and cogently’).

Rule 29.15(e) continues this policy and provides that counsel will be appointed for all indigent inmates if, but only after, the inmate timely files his initial motion. The lack of any constitutional right to counsel in post-conviction proceedings, however, precludes claims based on the diligence or competence of post-conviction counsel (appointed or retained), Reuscher v. State , 887 S.W.2d 588, 590 (Mo. banc 1994), and such claims are ‘categorically unreviewable.’ Eastburn [v. State ], 400 S.W.3d [770,] 774 [(Mo. banc 2013)] ; State v. Ervin , 835 S.W.2d 905, 929 (Mo. banc 1992) (same); Lingar v. State , 766 S.W.2d 640, 641 (Mo. banc 1989) (same). With two such important policies (i.e., the Court's decision to provide counsel for all indigent inmates and the Court's steadfast refusal to acknowledge claims based on the ineffectiveness of post-conviction counsel), a collision was bound to occur. Luleff [v. State , 807 S.W.2d 495 (Mo. banc 1991) ] and Sanders [v. State, 807 S.W.2d 493 (Mo. banc 1991) ] mark the Court's resolution of that conflict.

When counsel is appointed under Rule 29.15(e), this rule requires this counsel to investigate the claims raised in the inmate's timely initial motion and then file either an amended motion or a statement explaining why no amended motion is needed. Performance of these duties is essential because the limited scope of appellate review under Rule 29.15(j) assumes that ‘the motion court and appointed counsel will comply with all provisions of the rule.’ Luleff , 807 S.W.2d at 497–98. Therefore, Luleff balances the Court's need to enforce the requirements of Rule 29.15(e) and its unwillingness to allow ineffective assistance claims regarding post-conviction counsel by holding that a ‘complete absence of performance’ by appointed counsel is tantamount to a failure of the motion court to appoint counsel under Rule 29.15(e) in the first instance. Id. at 498. Under either scenario, the integrity of the procedures set forth in the rule are compromised and the case cannot proceed as Rule 29.15(e) intends. Id. Accordingly, Luleff holds that the only way to restore the motion court and parties to the position Rule 29.15(e) intends for them is for the motion court to appoint new counsel and allow additional time for this counsel to perform the duties required by Rule 29.15(e). Id. at 497–98.

In Sanders , decided the same day as Luleff , there was no ‘complete absence of performance’ by appointed counsel. Instead, appointed counsel decided that an amended motion was necessary to raise all of the inmate's claims properly, but then failed to file the amended motion in a timely manner. Sanders , 807 S.W.2d at 494-95. Under this Court's prior cases and the language of the rule, the amended motion should have been dismissed and the inmate allowed to proceed only on the claims raised in his timely initial motion. Id. at 494. The Court refused to take this approach, however. Instead, Sanders holds that the purposes of Rule 29.15(e) are frustrated as much by appointed counsel's failure to follow through with a timely amendment as by the ‘complete absence of performance’ in Luleff. Id. Rather than have the motion court appoint new counsel as in Luleff , however, Sanders holds that the motion court need only treat the tardy amendment as timely in order to restore the intended effect of Rule 29.15(e). Id.

Accordingly, the rationale behind the creation of the abandonment doctrine in Luleff and Sanders was not a newfound willingness to police the performance of postconviction counsel generally. Instead, the doctrine was created to further the Court's insistence that Rule 29.15(e) be made to work as intended. Extensions of this doctrine that do not serve this same rationale must not be indulged.

Price , 422 S.W.3d at 297-98.

Litigation History

Following a bench trial, Borschnack was convicted of first-degree assault. Borschnack was sentenced to fifteen years in prison, as a prior and persistent offender.

Borschnack filed his direct appeal to this Court, and we affirmed his conviction in an unpublished statement. State v. Borschnack , SD33932. Mandate was issued on March 3, 2016.

On April 29, 2016, Borschnack timely filed his pro se "Motion to Vacate, Set Aside or Correct the Judgment or Sentence," along with his "Forma Pauperis Affidavit."

On May 3, 2016, the motion court entered an order ("the order of appointment") appointing the public defender to represent Borschnack. It also granted an extension to file an amended post-conviction motion, setting the deadline for August 1, 2016 (i.e. , 90 days after the date of appointment). There was nothing in the record to indicate the court clerk notified the public defender's office about this appointment and order. The public defender's office never filed an amended motion or otherwise took any action on Borschnack's behalf.

Thereafter, Borschnack retained private counsel and on January 23, 2017, retained counsel entered his appearance on behalf of Borschnack. On March 7, 2017, retained counsel filed a "Motion to Determine Appointed Counsel's Abandonment and Allow Additional Time for Filing of Amended Motion by Retained Counsel."

Following an April 12, 2017 hearing on Borschnack's motion, the motion court entered the following docket entry:

PETITIONER APPEARS BY [RETAINED] ATTORNEY ... COURT GRANTS ADDITIONAL 90 DAYS FOR PETITIONER TO FILE AMENDED PETITION.

Ninety days after the motion court entered this order (169 days after retained counsel's entry of appearance), Borschnack's retained counsel filed an amended Rule 29.15 motion for post-conviction relief on July 11, 2017.

On July 10, 2018, the motion court² entered its "Judgment" and "Findings of Fact and Conclusions of Law" based upon a stipulated record. The motion court found that Borschnack's amended motion was not timely filed by retained counsel. The motion court then took up and denied Borschnack's initial Rule 29.15 motion, finding it only made a conclusory allegation of ineffective assistance of counsel, without any substantive factual assertions. Borschnack appealed the judgment.

In Borschnack v. State , 568 S.W.3d 914 (Mo. App. S.D. 2019), this Court found that the record on appeal established a presumption that Borschnack was abandoned by his court-appointed counsel. Id. at 918. This Court further found that the record was not sufficient to determine whether the motion court's implicit³ finding of actual abandonment by appointed counsel was clearly erroneous, so it reversed and remanded with instructions to the motion court to "make an independent inquiry on the abandonment issue, which is capable of being reviewed by an appellate court; to make an abandonment determination based upon the record made of such inquiry; and then to proceed with the case accordingly." Id. at 920. Mandate issued on March 8, 2019.

On March 13, 2019, the motion court issued its "Order Requiring Discovery/Evidence on Issue of Abandonment and Order Requiring Deposition of Movant on Issue of Abandonment and Order Authorizing Depositions of Other Witnesses on Issue of Abandonment."

Thereafter, the parties took the depositions of Borschnack, District Defender Kristina Starke Olson ("Olson") of the Appellate Post Conviction East A Office, Area 51, in St. Louis, Missouri, and District Defender Gwenda Renee Robinson ("Robinson") of the Appellate Post Conviction East B Office, Area 51, in St. Louis, Missouri.

Borschnack testified in his deposition that on April 29, 2016, he...