Castor v. State, ED 89620.
| Decision Date | 29 January 2008 |
| Docket Number | No. ED 89620.,ED 89620. |
| Citation | 245 S.W.3d 909 |
| Parties | Kelly R. CASTOR, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Court of Appeals |
Robert D. McGee, Springfield, MO, for appellant.
Jeremiah W. (Jay) Nixon, Atty. Gen., Anna L. Bunch, Asst. Attorney General, Jefferson City, MO, for respondent.
Kelly Castor ("Movant") appeals from the denial of her Rule 24.035 motion for post-conviction relief, without an evidentiary hearing. We find the motion court's findings of fact and conclusions of law denying Movant's Rule 24.035 motion without an evidentiary hearing are not clearly erroneous and affirm.
Movant was charged as a prior and persistent offender with burglary in the second degree, Section 569.170, RSMo 2000,1 and misdemeanor stealing, Section 570.030. Thereafter, on January 15, 2006, Movant pleaded guilty pursuant to a plea agreement with the State.2 As part of the plea agreement, Movant pleaded guilty to the burglary charge and, in exchange, the State dismissed the misdemeanor, stealing charge and dropped the prior and persistent offender allegations. It was an open plea with no conditions or agreements as to whether any sentence should run concurrent or consecutive to any other sentences. Movant affirmed that this was her understanding of the plea agreement. On March 17, 2006, Movant was sentenced to seven years' imprisonment to run consecutively to her other previously imposed sentences.
On June 22, 2006, Movant filed a timely pro se Rule 24.035 motion for post-conviction relief. A public defender was appointed to represent Movant. Movant then retained private counsel, who entered his appearance on Movant's behalf on August 11, 2006. The transcript of the proceedings was filed with the motion court on September 1, 2006. On January 11, 2007, Movant's counsel filed an amended motion. The motion court subsequently denied Movant's Rule 24.035 motion for post-conviction relief without an evidentiary hearing. This appeal follows.
First, we consider the timeliness of Movant's amended motion. Rule 24.035(g) provides that when no appeal from the judgment is taken:
the amended motion shall be filed within sixty days of the earlier of: (1) the date both a complete transcript consisting of the guilty plea and sentencing hearing has been filed in the trial court and counsel is appointed or (2) the date both a complete transcript has been filed in the trial court and an entry of appearance is filed by any counsel that is not appointed but enters an appearance on behalf of movant.
Here, any amended motion had to be filed within sixty days of the date both the complete transcript was filed and entry of appearance of counsel. Retained counsel entered his appearance on August 11, 2006 and the transcript was filed on September 1, 2006. Movant's amended motion was filed on January 11, 2007, which was 132 days after the transcript was filed.
The time limits governing post-conviction motions are considered mandatory and reasonable. State v. Gilpin, 954 S.W.2d 570, 578 (Mo.App. W.D.1997). The untimeliness of an amended motion acts as a complete bar to consideration of the allegations contained in the motion. Id. Generally, when an amended motion has been filed out of time, the appropriate remedy is to remand the case to the motion court to determine the cause of the untimeliness, and whether the movant was abandoned by appointed counsel. State v. Kelley, 901 S.W.2d 193, 204 (Mo.App. W.D. 1995); Rutherford v. State, 192 S.W.3d 746, 749 (Mo.App. S.D.2006). Abandonment occurs when post-conviction counsel fails to timely file an amended motion, fails to amend a movant's pro se motion without explanation, or files an amended motion that is so patently defective that it amounts to a nullity. Robinson v. State, 211 S.W.3d 162, 163 (Mo.App. E.D.2007). The motion court can permit the filing of an untimely amended post-conviction motion and consider the claims in the amended motion if it determines that the movant was abandoned by counsel. Rutherford, 192 S.W.3d at 749. Where the record shows the delay in filing the amended motion was solely attributable to post-conviction counsel and through no fault of the movant, and where the motion court has already considered the claims in the amended motion, no purpose would be served in remanding the case to the motion court for a determination on the abandonment issue. Kelley, 901 S.W.2d at 204. The State, however, maintains that the abandonment principles do not apply in this case because Movant's amended motion was filed by "retained counsel" as opposed to "appointed counsel."
The Missouri Supreme Court first recognized the concept of abandonment of counsel in a post-conviction proceeding in Luleff v. State, 807 S.W.2d 495 (Mo. banc 1991) and Sanders v. State, 807 S.W.2d 493 (Mo. banc 1991), decided at the same time. In Luleff, the court considered abandonment in the context of an appointed counsel's complete failure to comply with the provisions of Rule 29.15(e), which sets forth the requirements for appointed counsel.3 Luleff, 807 S.W.2d at 497-98. In Sanders, the court considered, abandonment in the context of an appointed counsel's failure to timely file an amended motion as required by Rule 29.15(f).4 Sanders, 807 S.W.2d at 495. The court in Sanders stated that the failure to comply with the time requirements was, like the failure to comply with Rule 29.15(e), "another form of `abandonment' by post[-]conviction counsel." Id. While Sanders specifically dealt with circumstances in which the movant's counsel was appointed, the application of abandonment for the failure to file a timely amended motion is not limited to those circumstances. The time limits to file an amended motion set forth in Rule 24.035(g) apply to both appointed and retained counsel.
In addition, there are cases that have applied the concept of abandonment where post-conviction counsel was privately retained. See Middleton v. Stats, 200 S.W.3d 140 (Mo.App. W.D.2006); Bantle v. State, 165 S.W.3d 233 (Mo.App. S.D.2005); Burns v. State, 964 S.W.2d 548 (Mo.App. S.D.1998). Thus, the concept of abandonment for the failure to file a timely amended motion is equally applicable to both appointed and retained counsel and the State's argument fails.5
Because the record here suggests the delay in filing was solely attributable to Movant's counsel and the motion court could consider the claims in the untimely amended motion, and because the motion court has already adjudicated the claims in Movant's amended post-conviction motion, no purpose would be served in remanding this case to the motion court for a determination on the abandonment issue. Kelley, 901 S.W.2d at 204. We will review the merits of Movant's appeal. Id.
This court's review of a motion court's findings of fact and conclusions of law in denying a Rule 24.035 motion for post-conviction relief is limited to a determination of whether the findings and conclusions are clearly erroneous. Rule 24.035(k); Simmons v. State, 100 S.W.3d 143, 145 (Mo.App. E.D.2003). A motion court's findings and conclusions are clearly erroneous only if, after a full review of the record, we are left with a definite and firm impression that a mistake has been made. Simmons, 100 S.W.Sd at 145. When reviewing a motion court's ruling, we presume the motion court's findings are correct. Id.
The motion court in this case denied the movant's claim without an evidentiary hearing. To receive an evidentiary hearing on a Rule 24.035 motion, a movant must, meet three requirements: (1) the motion must allege facts, not conclusions, which, if true, warrant relief; (2) the facts alleged must raise matters not conclusively refuted by the files and records of the case; and (3) the matters complained of must have resulted in prejudice to the movant. Id.
To succeed on a claim of ineffectiveness of counsel where a movant has entered a guilty plea, a movant must show that his counsel's performance fell below an objective standard of reasonableness and that he was prejudiced by that deficient performance. Boyd v. State, 205 S.W.3d 334, 338 (Mo.App. S.D.2006). A movant must show, but for the conduct of his trial attorney about which he complains, he would not have pleaded guilty but would have insisted on going to trial. Id. Where, as here, there is a negotiated plea of guilty, a claim of ineffective assistance of counsel is immaterial except to the extent it impinges upon the voluntariness and knowledge with which the guilty plea was made. Id.
In her first point, Movant contends the motion court erred in denying her Rule 24.035 motion without an evidentiary hearing because her plea counsel was ineffective for failing to adequately advise Movant that her sentence could run consecutive to another sentence. We disagree.
In denying her claim that plea counsel was ineffective for not adequately advising Movant of the consequences of pleading guilty and that she could be sentenced to consecutive time as a result of an open plea, the motion court found Movant's claim was refuted by the record. The motion court noted the following exchange from the plea hearing:
Also, the State would dismiss Count II. It will be an open plea with a stand silent offer with no conditions or no agreements as to whether the case run concurrent or consecutive to any other cases she has.
And should [Movant] receive an unfavorable sentencing assessment report from probation and parole, the State would be asking at that point for a consecutive sentence.
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