Gittemeier v. State
| Citation | 527 S.W.3d 64 |
| Decision Date | 12 September 2017 |
| Docket Number | No. SC 95953.,SC 95953. |
| Parties | Paul GITTEMEIER, Appellant, v. STATE of Missouri, Respondent. |
| Court | United States State Supreme Court of Missouri |
Gittemeier was represented by Richard H. Sindel and Dominic R. Cicerelli of Sindel, Sindel & Noble PC in Clayton, (314) 721-6040.
The state was represented by Evan J. Buchheim of the attorney general's office in Jefferson City, (573) 751-3321.
Paul Gittemeier appeals the judgment overruling his amended Rule 29.15 motion for postconviction relief on the merits. Before considering the merits of a postconviction motion, however, this Court has a duty to determine whether the postconviction motion was timely filed. Mr. Gittemeier's retained counsel untimely filed the amended motion on Mr. Gittemeier's behalf. Although Mr. Gittemeier asserts the untimely filing must be excused because his retained counsel abandoned him, the abandonment doctrine does not apply to retained counsel. Rather, the abandonment doctrine originated as a means of ensuring appointed counsel complies with Rule 29.15. Because the abandonment doctrine does not excuse retained counsel's untimely filing, all claims raised in the amended motion were waived.
The motion court, therefore, should have adjudicated only the claim raised in Mr. Gittemeier's timely pro se motion for postconviction relief, not those raised in the untimely amended motion. Nevertheless, the motion court did not clearly err in overruling Mr. Gittemeier's motion for postconviction relief. The ineffective assistance of counsel claim raised in Mr. Gittemeier's pro se motion is identical to a claim raised in his amended motion. Mr. Gittemeier failed to prove that claim by a preponderance of the evidence at the evidentiary hearing. Consequently, the judgment of the motion court is affirmed.
In 2012, Mr. Gittemeier was charged and convicted of one count of felony driving while intoxicated, section 577.010,1 and one count of misdemeanor trespass in the first degree, section 569.140. The charges arose after Mr. Gittemeier rode his all-terrain vehicle (ATV) on his neighbor's lawn while intoxicated. The trial court sentenced Mr. Gittemeier as a chronic offender to concurrent sentences of 15 years in the department of corrections for driving while intoxicated and 90 days in the county jail for trespassing. His convictions were affirmed on direct appeal. State v. Gittemeier , 400 S.W.3d 838, 846 (Mo. App. 2013).
On October 15, 2013, Mr. Gittemeier timely filed his pro se Rule 29.15 motion for postconviction relief. In his pro se motion, Mr. Gittemeier alleged his trial counsel was ineffective for failing to challenge whether an ATV is a motor vehicle for purposes of driving while intoxicated under section 577.010.
On October 17, 2013, the motion court appointed postconviction counsel. Appointed counsel requested a 30-day extension to file an amended motion, which the motion court sustained. The amended motion was due January 15, 2014.
On January 7, 2014, eight days before the amended motion was due, Mr. Gittemeier's appointed counsel filed a motion to withdraw and rescind appointment of counsel.2 The following day, privately retained counsel filed an entry of appearance and a motion for extension of time to file an amended motion. The motion court entered an order sustaining appointed counsel's motion to withdraw, rescinding the appointment of counsel, and sustaining retained counsel's request for an additional 60 days to file an amended motion. Pursuant to the motion court's order, retained counsel had until March 16, 2014, to file the amended motion.
On March 14, 2014, retained counsel filed an amended Rule 29.15 motion alleging 22 claims of ineffective assistance of counsel and one claim of prosecutorial misconduct. One of the ineffective assistance claims mirrored Mr. Gittemeier's pro se claim that trial counsel was ineffective for failing to challenge whether an ATV is a motor vehicle for purposes of driving while intoxicated under section 577.010. Following an evidentiary hearing, the motion court overruled the amended motion for postconviction relief. Mr. Gittemeier appealed. After opinion, the court of appeals transferred the case to this Court pursuant to Rule 83.02.
This Court reviews an order overruling a Rule 29.15 motion for postconviction relief to determine "whether the motion court's findings of facts and conclusions of law are clearly erroneous." Price v. State , 422 S.W.3d 292, 294 (Mo. banc 2014) (internal quotation omitted). "Findings and conclusions are clearly erroneous if, after a review of the entire record, the court is left with the definite and firm impression that a mistake has been made." Id. (internal quotation omitted).
Rule 29.15(g) (2013). The motion court could extend "the time for filing the amended motion for one additional period not to exceed thirty days." Rule 29.15(g) (2013).
Here, the mandate issued in Mr. Gittemeier's direct appeal July 18, 2013, and the motion court appointed counsel on October 17, 2013. Appointed counsel requested and received an additional 30 days to file an amended motion. The amended motion, therefore, was due January 15, 2014. Mr. Gittemeier's retained counsel, however, did not file the amended motion until March 14, 2014.
The fact the motion court improperly sustained retained counsel's motion for an extra 60-day extension to file the amended motion did not make the amended motion timely. Rule 29.15(g)'s time limits for filing an amended motion are mandatory and cannot be extended by the motion court. Stanley v. State , 420 S.W.3d 532, 540-41 (Mo. banc 2014). Nor did retained counsel's entry of appearance affect when Mr. Gittemeier's amended motion was due. This Court has held the withdrawal of counsel and appearance of a new attorney on the movant's behalf does not affect the time limitations for filing an amended motion. Id. at 541. Rather, the "earlier of the date of first appointment or entry of appearance continues to control the time limit for filing an amended motion." Id. Consequently, the amended motion was untimely.
Mr. Gittemeier acknowledges his amended motion was untimely; nevertheless, he asserts the untimely filing must be excused because his retained counsel abandoned him. The state contends the abandonment doctrine does not aid Mr. Gittemeier because it is available only when appointed counsel fails to act. This Court has never expressly addressed whether retained counsel can abandon a movant by failing to timely file an amended motion for postconviction relief. The origins of the abandonment doctrine, however, reflect that the doctrine applies only to appointed counsel.
This Court adopted the abandonment doctrine in Luleff v. State , 807 S.W.2d 495, 497-98 (Mo. banc 1991). In Luleff , the movant filed a timely pro se motion and counsel was appointed. Id. at 496. Appointed counsel took no action on the movant's behalf, and the motion court subsequently overruled the movant's pro se motion. Id. at 497. On appeal, the movant claimed the motion court erred in overruling his motion because appointed counsel failed to act on his behalf pursuant to Rule 29.15(e). Id. The Court recognized that claims of ineffective assistance of postconviction counsel are not cognizable in Missouri. Id. But it found this Court's limited review of Rule 29.15 proceedings is premised on the "assumption that the motion court and appointed counsel will comply with all provisions of the rule." Id. at 498. "Absent some performance by appointed counsel, the motion court cannot determine whether the pro se pleading can be made legally sufficient by amendment or whether there are other grounds for relief known to movant but not included in the pro se motion." Id. Therefore, a presumption of abandonment arises when the record does not indicate "appointed counsel made the determinations required by Rule 29.15(e)." Id. (emphasis omitted).
This Court further expounded on the abandonment doctrine in Sanders v. State , 807 S.W.2d 493 (Mo. banc 1991). In Sanders , the movant asserted he had been abandoned because appointed postconviction counsel failed to file a timely amended motion. Id. at 494. This Court explained that, in Luleff , the movant had a claim of abandonment because it appeared on the face of the record that movant was "deprived of a meaningful review of his claims" in that appointed counsel took no action whatsoever on the movant's behalf in violation of Rule 29.15(e). Id. This Court then reasoned the failure to timely file an amended motion constitutes another form of abandonment because the considerations underlying its decision in Luleff were equally applicable "where the record reflects that counsel determined that there is a sound basis for amending the pro se motion but fails timely to file the amended motion." Id. at 494-95.
Prior to Luleff and Sanders , this Court took the stance "that postconviction proceedings may not under any circumstances be used to challenge the effectiveness of postconviction counsel." Sanders , 807 S.W.2d at 494. That stance arises from the fact that there is no constitutional right to appointment of competent counsel in postconviction relief...
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