Ewing v. Denney, No. WD 74807.

CourtCourt of Appeal of Missouri (US)
Writing for the CourtCYNTHIA L. MARTIN
Citation360 S.W.3d 325
PartiesIn re David D. EWING, Petitioner, v. Larry DENNEY, Superintendent, CRCC, Respondent.
Docket NumberNo. WD 74807.
Decision Date27 March 2012

360 S.W.3d 325

In re David D. EWING, Petitioner,
v.
Larry DENNEY, Superintendent, CRCC, Respondent.

No. WD 74807.

Missouri Court of Appeals, Western District.

March 6, 2012.As Modified March 27, 2012.


[360 S.W.3d 326]

Rosemary E. Percival, Kansas City, MO, for Petitioner.

[360 S.W.3d 327]

Michael Spillane, Jefferson City, MO, for Respondent.

Before Writ Division: JAMES M. SMART, Presiding Judge, MARK D. PFEIFFER, Judge and CYNTHIA L. MARTIN, Judge.

CYNTHIA L. MARTIN, Judge.

David D. Ewing (“Ewing”) petitions for writ of habeas corpus. Ewing claims that he is being illegally restrained of his liberty by Larry Denney, Superintendent of the Crossroads Correctional Center (“Respondent”) because his trial counsel failed to perfect the filing of a timely notice of appeal and failed to inform Ewing that his appeal had been dismissed until it was too late to seek leave to file an appeal out of time. Ewing does not seek discharge from incarceration, but instead seeks to be resentenced so that a timely notice of appeal can be filed. Respondent agrees that Ewing's writ of habeas corpus should be granted. We grant habeas relief to Ewing as hereinafter set forth.

Factual and Procedural History1

On March 22, 2007, Ewing was convicted following a jury trial of one count of murder in the second degree (Count I), one count of assault in the first degree (Count III), and two counts of armed criminal action (Counts II and IV), in State v. Ewing, Jackson County Circuit Court Case No. 0516–CR07808–01. Ewing was sentenced on May 1, 2007, and committed to the custody of the Missouri Department of Corrections for imprisonment of twenty years on Count I, three years on Count II, fifteen years on Count III, and three years on Count IV. The trial court ordered the sentences on Counts I and II to run concurrently with each other, the sentences on Counts III and IV to run concurrently with other, and the sentences on Counts I and III to run consecutively. Ewing's total sentence, therefore, was thirty-five years with credit to be afforded per the trial court's judgment for time served.

Ewing was represented at trial and during sentencing by Willis Toney (“Toney”). Toney told Ewing he would appeal Ewing's conviction. Toney filed a notice of appeal in the Jackson County Circuit Court on May 11, 2007, on Ewing's behalf, but failed to pay the required filing fee.

The notice of appeal was not filed in this Court until September 10, 2007, shortly after Toney finally paid the required filing fee on September 6, 2007 after significant prodding by the Jackson County Circuit Court. On September 25, 2007, this court dismissed Ewing's appeal as untimely. A copy of the order of dismissal was directed to Toney as Ewing's counsel, but not to Ewing directly. Our mandate issued on October 11, 2007.

Toney did not advise Ewing that his appeal had been dismissed. Toney did not take steps to seek leave to file Ewing's appeal out of time as could have been requested under Rule 30.03.2

Ewing was not aware that his appeal had been dismissed. Toney had advised Ewing that it would take at least six months for his appeal to go through, and not to expect to hear anything from him for at least that period of time. Believing

[360 S.W.3d 328]

that he had a direct appeal pending, Ewing did not file a Rule 29.15 motion.3

After several months passed with no word from Toney, Ewing and his family made efforts to contact Toney to no avail. On September 20, 2008, Ewing started writing letters to other attorneys and legal organizations trying to determine what was going on in his case.4 One of those letters was directed to the Missouri Supreme Court. On March 5, 2009, counsel for the Missouri Supreme Court, wrote to Ewing and advised that:

The electronic database indicates that a notice of appeal was filed in your case. However, the filing fee was not timely made, so the appeal was dismissed.

You should consult competent legal counsel to determine what remedies may be available to you. Perhaps the public defender would be available to assist you.

I am forwarding your material to the chief disciplinary counsel.

Before receiving this letter, Ewing did not know that his appeal had been dismissed. By the time he received this letter, Ewing was out of time to file a request for leave to file an appeal out of time under Rule 30.03, and was out of time to file a Rule 29.15 motion.

Ewing made contact with the public defender's office which ultimately undertook his representation. On May 18, 2010, a motion to recall the mandate was filed on Ewing's behalf. The motion was opposed by the State. The State argued that Ewing failed to allege that he was unaware of the dismissal of his appeal until after it was too late to reinstate the appeal, and that Ewing had not explained why he could not have timely filed a Rule 29.15 motion alleging ineffective assistance of counsel. The motion to recall the mandate was denied by this court on December 3, 2010.

On July 15, 2011, Ewing filed a petition for writ of habeas corpus in DeKalb County.5 Respondent in this cause was similarly named as the Respondent in the writ petition filed in DeKalb County. Respondent conceded in his response to the writ petition that Ewing “is probably entitled to a writ of habeas corpus remanding the case for re-imposition of the same sentences that have already been imposed, so that the Public Defender may file a timely notice of appeal.”

On November 10, 2011, the Circuit Court of DeKalb County granted Ewing's petition. It ordered as follows:

The Court orders that [Ewing's] underlying criminal case, State v. Ewing, Jackson County Case No. 0516–CR07808–01, be remanded to the Circuit Court of Jackson County for re-imposition of the same sentences that have already been imposed, so that the Public Defender may file a timely notice of appeal.

On December 16, 2011, Ewing filed a motion for re-sentencing in the Circuit

[360 S.W.3d 329]

Court of Jackson County in Case No. 0516–CR07808–01. On January 20, 2012, the Honorable Marco A. Roldan overruled the motion, noting on the court's docket sheet that “the court lacks jurisdiction over the issue.” 6

On January 27, 2012, Ewing filed his petition for writ of habeas corpus in this court. On January 30, 2012, Respondent was directed to file a response showing cause why the petition for writ of habeas corpus should not be granted. Respondent filed a response on February 8, 2012. In the response, Respondent advised that his counsel had spoken with Toney by telephone on October 4, 2011. Toney admitted to Respondent that he had not told Ewing his appeal had been dismissed. Respondent conceded this is “probably cause to excuse the procedural default of Ewing's ineffective assistance of [trial] counsel claim in the Rule 29.15 process.” Respondent argued it would be appropriate to direct the trial court to re-sentence Ewing by imposition of the same sentences “so that the public defender, who now represents Mr. Ewing, may file a timely appeal on Mr. Ewing's behalf.” 7

Analysis

Though the State concedes that Ewing is entitled to the relief he seeks, we are nonetheless limited in our ability to afford the relief unless permitted to do so by law. For the reasons herein discussed, we conclude that we are authorized to grant Ewing's petition for writ of habeas corpus.

“Habeas corpus is not a substitute for ... a procedural default of a post-conviction remedy.” State ex rel. Nixon v. Sprick, 59 S.W.3d 515, 519 (Mo. banc 2001). “Post conviction remedies are designed to provide a ‘single, unitary, post-conviction remedy, to be used in place of other remedies,’ including the writ of habeas corpus.” State ex rel. Nixon v. Jaynes, 63 S.W.3d 210, 214 (Mo. banc 2001) (quoting Wiglesworth v. Wyrick, 531 S.W.2d 713, 715–16 (Mo. banc 1976)). Thus, it is the general rule that a defendant who fails to raise “claims in post-conviction proceedings ... waives them and cannot raise them in a subsequent petition for habeas corpus.” Id. (citing Smith v. State, 887 S.W.2d 601...

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2 practice notes
  • Spires v. Hurley, Case No. 4:12-CV-773 CAS-NAB
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • July 29, 2015
    ...habeas corpus due to counsel's failure to file a timely notice of appeal after counsel agreed to take such action. See Ewing v. Denney, 360 S.W.3d 325 (Mo. Ct. App. 2012) (habeas petition granted where retained defense counsel filed a notice of appeal without a filing fee, which resulted in......
  • Bridgewater v. State, WD 75421
    • United States
    • Missouri Court of Appeals
    • January 13, 2015
    ...that is, a cause for which the defense is not responsible.” Id. at 516–17 (quoting Brown, 66 S.W.3d at 731 ), but see Ewing v. Denney, 360 S.W.3d 325 (Mo.App.W.D.2012) (affording habeas relief to redress trial/appellate counsel's failure to perfect a direct appeal where defendant was mislea......
2 cases
  • Spires v. Hurley, Case No. 4:12-CV-773 CAS-NAB
    • United States
    • United States District Courts. 8th Circuit. United States District Court (Eastern District of Missouri)
    • July 29, 2015
    ...habeas corpus due to counsel's failure to file a timely notice of appeal after counsel agreed to take such action. See Ewing v. Denney, 360 S.W.3d 325 (Mo. Ct. App. 2012) (habeas petition granted where retained defense counsel filed a notice of appeal without a filing fee, which resulted in......
  • Bridgewater v. State, WD 75421
    • United States
    • Missouri Court of Appeals
    • January 13, 2015
    ...that is, a cause for which the defense is not responsible.” Id. at 516–17 (quoting Brown, 66 S.W.3d at 731 ), but see Ewing v. Denney, 360 S.W.3d 325 (Mo.App.W.D.2012) (affording habeas relief to redress trial/appellate counsel's failure to perfect a direct appeal where defendant was mislea......

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