Glaviano v. State

• Decision Date: 15 September 2009
• Docket Number: No. WD 69753.,WD 69753.
• Citation: 298 S.W.3d 112
• Parties: Carl P. GLAVIANO, Appellant, v. STATE of Missouri, Respondent.
• Court: Missouri Court of Appeals

298 S.W.3d 112

Carl P. GLAVIANO, Appellant, v. STATE of Missouri, Respondent.

No. WD 69753.

Missouri Court of Appeals, Western District.

September 15, 2009.

Motion for Rehearing and/or Transfer to Supreme Court Denied October 27, 2009.

Application for Transfer Denied December 22, 2009.

Frederick J. Ernst, Esq., Kansas City, MO, for appellant.

Shaun J. Mackelprang, Esq., and Daniel N. McPherson, Esq., Jefferson City, MO, for respondent.

BEFORE DIVISION ONE: ALOK AHUJA, Presiding Judge, JAMES M. SMART and LISA WHITE HARDWICK, Judges.

LISA WHITE HARDWICK, Judge.

Carl Glaviano appeals the judgment denying his Rule 29.15 motion, following an evidentiary hearing. Glaviano contends the motion court erred in: (1) ruling that his punitive sentencing claim was not cognizable in this post-conviction proceeding; (2) precluding him from deposing the sentencing judge; and (3) determining that defense counsel was not ineffective in failing to present character witnesses at his sentencing hearing. For reasons explained herein, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Glaviano was convicted by jury trial of first-degree robbery and armed criminal action for robbing a Higginsville sandwich store at knifepoint. Judge Dennis Rolf, of the Lafayette County Circuit Court, sentenced Glaviano to consecutive terms of life and fifty years imprisonment. We affirmed the convictions on direct appeal. State v. Glaviano, 191 S.W.3d 70 (Mo.App. 2006).

Glaviano filed a timely pro se Rule 29.15 motion, which was amended by appointed counsel. The amended motion raised four ineffective assistance of counsel claims and one claim alleging that Glaviano's constitutional rights were violated by punitive sentencing.

The case was assigned to Judge Rolf. When Glaviano gave notice that he intended to call Judge Rolf as a witness on the punitive sentencing claim, Judge Rolf recused himself and the post-conviction case was re-assigned to Judge Larry Harman. The State filed a motion for protective order to preclude the deposition and testimony of Judge Rolf. Judge Harman granted the protective order.

Following an evidentiary hearing on the Rule 29.15 motion, the court entered a judgment denying post-conviction relief on all five claims. Glaviano appeals.

STANDARD OF REVIEW

We review the denial of a post-conviction relief motion for clear error. Edwards v. State, 200 S.W.3d 500, 509 (Mo. banc 2006). "The motion court's findings of fact and conclusions of law are presumed to be correct." Id. "Findings and conclusions are clearly erroneous only if a full review of the record definitely and firmly reveals that a mistake was made." Morrow v. State, 21 S.W.3d 819, 822 (Mo. banc 2000).

ANALYSIS

1. Punitive Sentencing

Glaviano contends the motion court erred in denying the post-conviction claim that his constitutional rights were violated by punitive sentencing. In his Rule 29.15 motion, Glaviano alleged the trial court sentenced him to the maximum, consecutive prison terms because he refused to plead guilty and exercised his right to a jury trial. The motion court denied the punitive sentencing claim on the basis that it could have been raised on direct appeal and, therefore, was not cognizable for post-conviction relief. The court observed that Glaviano failed to offer any "compelling reason why this issue in this case could not have been handled in the direct appeal."

As a general rule, a post-conviction motion for relief cannot be used as a substitute for a direct or second appeal. Zink v. State, 278 S.W.3d 170, 191 (Mo. banc 2009). "Issues that could have been raised on direct appeal—even if constitutional claims—may not be raised in postconviction motions, except where fundamental fairness requires otherwise and only in rare and exceptional circumstances." State v. Tolliver, 839 S.W.2d 296, 298 (Mo. banc 1992).

Glaviano asserts that his punitive sentencing claim must be brought in this post-conviction proceeding because Rule 29.15(a) states that it is the "exclusive procedure" for seeking relief on a conviction or sentence that violates constitutional rights. We note, however, that while Glaviano characterizes his claim as a constitutional violation, the essence of his argument is that the trial court abused its discretion in ordering the maximum sentences and ordering them to run consecutively instead of concurrently. Those claims can be properly brought on direct appeal. State v. Lynch, 131 S.W.3d 422, 427-28 (Mo.App.2004); State v. Martin, 852 S.W.2d 844, 853-56 (Mo.App.1992). Further, it is apparent that Glaviano's interpretation of Rule 29.15's "exclusive" language would eviscerate any distinction between direct appeal and post-conviction proceedings, since almost every allegation of trial court error could be framed as a violation of constitutional principles.¹

Glaviano cites to three cases in which sentencing claims have been addressed in post-conviction appeals. Vickers v. State, 17 S.W.3d 632, 634 (Mo.App.2000); State v. Vaughn, 940 S.W.2d 26, 28 (Mo.App.1997); Thurston v. State, 791 S.W.2d 893, 895 (Mo.App.1990). As discussed herein, we do not find these cases instructive in addressing the claim presented here.

In Vickers, the defendant appealed from the denial of his Rule 24.035 motion. 17 S.W.3d at 633. Earlier during trial, the defendant had withdrawn his plea of not guilty and decided to plead guilty. Id. at 633 n. 1. Because no direct appeal lies from a guilty plea, the defendant's claim that the sentencing court punished him for going to trial had to be brought in a post-conviction proceeding. Vickers is procedurally different from Glaviano's case and does not support his argument.

Glaviano also relies on Vaughn, which held that a punitive sentencing claim is cognizable in a Rule 29.15 proceeding. 940 S.W.2d at 28. That conclusion, however, appears to arise from a misapplication of prior precedent. In Vaughn, the Southern District relied on State v. Chambers, 898 S.W.2d 119, 124 (Mo.App.1995), where the defendant raised a claim that the sentence imposed on him was in excess of the maximum prescribed by law. Rule 29.15 specifically states that it is the exclusive procedure for raising a claim that the sentence imposed was in excess of the maximum sentence allowed by law. Rule 29.15(a). The claim in Chambers was entirely different from that in Vaughn, where the defendant argued that his sentence was excessive, despite being within the statutory range. Vaughn, 940 S.W.2d at 28. In treating the two distinct claims as comparable, the Vaughn case overlooked precedent holding that a defendant is not entitled to post-conviction relief on a claim that a sentence within statutory limits was excessive. Cain v. State, 859 S.W.2d 715, 718 (Mo.App.1993); Hayes v. State, 774 S.W.2d 886, 888 (Mo.App.1989). We decline to follow Vaughn in light of this precedent and the misapplication of Chambers.

In Thurston, also relied on by Glaviano, the court considered a punitive sentencing claim raised in a Rule 29.15 without addressing whether the claim was cognizable under the rule. 791 S.W.2d at 895-98. Likewise, our courts have routinely handled claims of punitive sentencing on direct appeal without any discussion of whether those claims are properly addressed on direct appeal or in post-conviction proceedings. See State v. Palmer, 193 S.W.3d 854, 856-58 (Mo.App.2006); State v. Wright, 998 S.W.2d 78, 82-84 (Mo.App. 1999); State v. Jones, 806 S.W.2d 702, 705-06 (Mo.App.1991). Collectively, these cases provide little guidance because they are devoid of any explanation for the variant treatment of sentencing issues.

Because claims of punitive sentencing have been considered on both direct appeal and in post-conviction actions, the best method to determine the proper avenue for such claims is by application of the general principle that, absent rare and exceptional circumstances, Rule 29.15 cannot be used to raise issues that could have been raised on direct appeal. Zink, 278 S.W.3d at 191. We find no error in the motion court's ruling that no exceptional circumstances existed here.

Glaviano does not dispute that he was aware of all the facts necessary to raise his punitive sentencing claim on direct appeal. His claim is based on comments made by the trial court during a hearing that occurred several months prior to sentencing.² Those comments were the basis of a similar claim in Glaviano's motion for new trial that was addressed at the sentencing hearing.

Glaviano cites McQuary v. State, 241 S.W.3d 446, 453-54 (Mo.App.2007), and Buck v. State, 70 S.W.3d 440, 445-46 (Mo. App.2000), for the proposition that "fundamental fairness requires that the defendant be allowed to pursue [a claim] in a post-conviction action" where "the claim requires evidence outside of the trial record." But as explained herein, Glaviano's current claim is based on information that was contained in the trial record and available on direct appeal. This situation is distinguished from McQuary and Buck, where the facts establishing the grounds for the post-conviction motions were not discovered until after the trial court had lost jurisdiction. McQuary, 241 S.W.3d at 453; Buck, 70 S.W.3d at 445. In Glaviano's case, no additional testimony or evidence was required to present his claim on direct appeal.³

As the motion court observed, Glaviano failed to offer any compelling circumstance that would permit him to bypass the direct appeal and bring his claim in this post-conviction proceeding. Accordingly, the motion court did not err in concluding that he failed to state a cognizable claim under Rule 29.15. Point I is denied.

2. Deposition of Sentencing Judge

In his second point on appeal, Glaviano contends the motion court abused its discretion in denying his request to depose Judge Rolf regarding the punitive sentencing claim. Given our conclusion that the punitive sentencing claim is not cognizable in this post-conviction proceeding, the motion court did not err in...