Creighton v. State
| Decision Date | 25 April 2017 |
| Docket Number | No. SC 95527,SC 95527 |
| Citation | 520 S.W.3d 416 |
| Parties | Rodney CREIGHTON, Appellant, v. STATE of Missouri, Respondent. |
| Court | Missouri Supreme Court |
Srikant B. Chigurapati, Public Defender's Office, St. Louis, for Rodney Creighton.
Christine Lesicko, Dora Fichter, Attorney General's Office, Jefferson City, for the State.
Rodney Creighton (hereinafter, "Movant") appeals from a judgment overruling his Rule 29.15 motion for post-conviction relief without an evidentiary hearing.1 This Court holds as follows. First, the motion court's memorandum notifying the public defender that Movant filed a pro se motion for post-conviction relief was not an appointment of counsel triggering the Rule 29.15(g) timelines for filing an amended motion. Movant's amended motion was timely because it was filed within the applicable time period following counsel's entry of appearance. Second, the motion court did not clearly err by denying relief on Movant's claim that counsel was ineffective for failing to request a mistrial or, alternatively, the removal of a juror for intentional nondisclosure. Finally, the motion court clearly erred to the extent it denied relief on Movant's pro se claims by finding the claims were illegible. Therefore, the judgment is reversed and the case is remanded for consideration of the merits of Movant's pro se claims. The judgment is affirmed in all other respects.
Following a jury trial, the circuit court convicted Movant of three counts of robbery in the first degree, three counts of armed criminal action, and one count of resisting arrest. The circuit court sentenced Movant to concurrent terms of twenty-five years for each of the three robbery convictions, ten years for each of the three armed criminal action convictions, and seven years for resisting arrest. Movant's convictions and sentences were affirmed on direct appeal. State v. Creighton , 386 S.W.3d 206 (Mo. App. E.D. 2012).
On January 17, 2013, Movant filed a timely pro se Rule 29.15 motion for post-conviction relief. On March 8, 2013, the motion court issued the following memorandum:
The Court hereby notifies Scott Thompson that movant Rodney Creighton has filed a post-conviction motion. The motion is accompanied by an affidavit of indigency. So ordered, Judge Elizabeth B. Hogan.
Movant's public defender entered his appearance on May 30, 2013. On July 26, 2013, the motion court sustained counsel's request for a thirty-day extension of time to file an amended motion. On August 28, 2013, post-conviction counsel filed an amended motion on Movant's behalf.
As relevant to this appeal, the amended motion asserted trial counsel was ineffective for failing to seek a mistrial or, alternatively, the removal of a juror for intentional nondisclosure. Movant alleged the juror knew him but failed to respond when the State specifically asked the jury panel if anyone knew Movant. The motion court denied relief without an evidentiary hearing.
Movant raises two points on appeal. First, Movant asserts counsel was ineffective for failing to request a mistrial or, alternatively, the removal of a juror for intentional nondisclosure. Second, Movant asserts the motion court clearly erred by finding that his pro se claims were illegible and, therefore, unreviewable. The threshold issue, however, is whether the motion court's March 8, 2013, memorandum notifying the public defender of Movant's pro se filing constituted an appointment that commenced the Rule 29.15(g) deadlines for filing a timely amended motion.
This Court reviews a judgment denying a Rule 29.15 motion for post-conviction relief to determine whether the motion court's findings of fact and conclusions of law are clearly erroneous. Rule 29.15(k). The motion court's findings and conclusions are clearly erroneous only if a full review of the record leaves the reviewing court with "the definite and firm impression that a mistake has been made." Moore v. State , 458 S.W.3d 822, 829 (Mo. banc 2015) (quoting Williams v. State , 168 S.W.3d 433, 439 (Mo. banc 2005) ).
The amended motion was filed timely
Rule 29.15(g) establishes the timelines for filing an amended motion. In relevant part, Rule 29.15(g) provides:
If an appeal of the judgment sought to be vacated, set aside, or corrected is taken, the amended motion shall be filed within sixty days of the earlier of: (1) the date both the mandate of the appellate court is issued and counsel is appointed or (2) the date both the mandate of the appellate court is issued and an entry of appearance is filed by any counsel that is not appointed but enters an appearance on behalf of movant.
Rule 29.15(g) also provides that the motion court can extend the sixty-day deadline for one additional period not to exceed thirty days. Thus, as in this case, a movant can have up to ninety days to file a timely amended motion.
The state argues the motion court's March 8, 2013, memorandum notifying the public defender that Movant filed a pro se motion was an appointment triggering the sixty-day filing period prescribed by Rule 29.15(g). The state concludes Movant's amended motion was untimely because it was not filed until August 28, 2013, and asks this Court to remand the case for a determination of whether counsel abandoned Movant by failing to file a timely amended motion. See Moore , 458 S.W.3d at 825-26 (Mo. banc 2015).
Movant argues the motion court's memorandum was a notification, not an appointment. Movant asserts the Rule 29.15(g) filing period commenced when counsel entered his appearance May 30, 2013. Movant concludes his amended motion was filed timely within ninety days following counsel's entry of appearance. Movant is correct.
The motion court's memorandum did not state that the court was appointing the public defender to represent Movant. The memorandum stated only that the motion court "hereby notifies" the public defender that Movant filed a pro se motion. The motion court's notification is consistent with an Amended Administrative Order (hereinafter, "Order") directing judges within the motion court's circuit to cease appointing the public defender in post-conviction cases and, instead, to notify the public defender when a movant files a pro se motion for post-conviction relief.2 When considered in conjunction with the Order, there is no basis for concluding the motion court intended the notification to operate as an appointment of counsel.3
Although the motion court's memorandum served only as a notification, the state argues Stanley v. State , 420 S.W.3d 532 (Mo. banc 2014), establishes that the notification is a de facto appointment. Stanley does not support the state's argument.
In Stanley , there was no dispute that the motion court appointed the public defender's office to represent the movant. Id. at 538. A lawyer from the public defender's office entered an appearance and filed a timely amended motion for post-conviction relief. Id. That lawyer then withdrew from the case. Id. at 539. A second lawyer from the public defender's office entered an appearance more than sixty days after the motion court's appointment of the public defender's office as post-conviction counsel. Id. The second public defender then filed a second amended motion for post-conviction relief. Id. The issue in Stanley was the timeliness of a second amended motion filed by the second public defender. Id. at 540.
This Court held the second amended motion was untimely because "the effective date of appointment of counsel is the date on which the office of the public defender is designated rather than the date of counsel's entry of appearance." Id. at 540 (quoting State v. White , 813 S.W.2d 862, 864 (Mo. banc 1991) ). There was no question in Stanley that the motion court appointed the public defender's office to represent the movant. Thus, as used in Stanley , the term "designated" refers to the appointment of the public defender's office to represent an indigent movant as opposed to the date an individual attorney from the public defender's office enters his or her appearance for the movant. See State v. Leisure , 810 S.W.2d 560, 575 (Mo. App. E.D. 1991) (). Stanley does not address, directly or by implication, the issue of whether the motion court's notification in this case should be deemed an appointment.4 For purposes of this case, the relevance of Stanley is limited to a reaffirmation of the unquestioned propositions that the post-conviction filing deadlines can commence when counsel is appointed and the filing deadlines are mandatory.
The state argues that Rules 29.15(e) and 29.15(g) require the notification to be deemed an appointment of counsel. This argument is incorrect.
Rule 29.15(e) provides: "When an indigent movant files a pro se motion, the court shall cause counsel to be appointed for the movant." The requirement that the motion court "shall cause counsel to be appointed" neither prohibits the motion court from providing a notification nor compels the conclusion that a notification must be deemed an appointment. The requirement that the court appoint counsel supports the argument that the motion court's notification was actually an appointment only if the rule requires the court to appoint counsel immediately when a movant files an affidavit of indigency. Rule 29.15(e), however, provides no specific time within which the court must appoint counsel. Laub v. State , 481 S.W.3d 579, 584 (Mo. App. S.D. 2015). Rule 29.15(e) provides only that, at some point, the court must ensure counsel is appointed to represent an indigent movant.5
The state also argues the mandatory Rule 29.15(g) filing deadlines will be "artificially extended" if...
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